Reforming 'Regulatory Reform': A Progressive Framework for Agency Rulemaking in the Public Interest

Abstract

For over three decades, “regulatory reform” has been an aspiration chiefly for opponents of regulation. “Better regulation” is a goal nearly everyone would embrace. But changes in the federal administrative process since the 1980s have frequently had the foreseeable, and often intended, effect of hindering efforts to protect the environment, public health, civil rights, and other well-established public interest goals. This Issue Brief envisions what regulatory reform could look like from a different direction, focusing specifically on administrative rulemaking, the primary target of contemporary law reform efforts. The authors ask, what if reformers started with full recognition of the value of administrative regulation in the public interest? Beyond any specific substantive agenda, it is worth exploring whether there are potential changes in agency process and in the oversight of agencies that would improve the administrative state. Are there changes that could make regulation more evidence-based, more transparent, more inclusive, more accountable, and more efficient? If so, then progressives should take up the cause of regulatory reform as our own.

Keywords: administrative law, regulatory reform, rulemaking, advisory committees, judicial review, ex parte contacts, public participation, advisory committees, chevron, standards of review, regulatory oversight, OIRA

JEL Classification: K3, K19