Wednesday, February 4, 2009

O'Connell on Rulemaking in the United States, 1983-2003

As a legal historian of the New Deal state, I study many controversies about administrative agencies that proceed by case-by-case adjudication, but relatively few about rulemaking. I often find I have a hard time making my accounts speak to the concerns of contemporary scholars of administrative law, for whom rulemaking looms very large indeed. I'm always on the lookout for comprehensive treatments of the rulemaking era to bring me up to speed. Here's one, just posted on SSRN and forthcoming in the Virginia Law Review: Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State by Anne Joseph O’Connell, University of California, Berkeley School of Law. The abstract follows:
Despite the administrative state's extensive scope, we know little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. Using a large new dataset constructed from twenty years' (1983-2003) worth of federal agencies' semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions, this Article analyzes variation in agency rulemaking activities with an emphasis on rulemaking at the beginning and end of presidential administrations and around shifts in party control of Congress -- midnight and crack-of-dawn regulatory activity -- while also assessing some patterns outside those periods.

The empirical results offer new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each presidential administration, but cabinet departments (as a group), finished slightly more actions after the 1994 election changed control of Congress than in President Clinton's last quarter. And although the press highlighted President Clinton's spate of midnight regulatory activity, President George H.W. Bush began nearly 50 percent more notice-and-comment rulemakings in the final quarter of his term than did President Clinton and nearly 40 percent more than President Reagan.

The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice-and-comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, binding rulemaking without prior comment has increased across a wide range of agencies. Focusing on politics, these patterns of regulatory activity during political transitions undermine theories of judicial deference based entirely on agency expertise. But, at the same time, they do not support a political accountability theory based solely on the President. Rather, the regulatory trends call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.