A Brief Taxonomy of “Regulatory Reform” Proposals

by Satya Thallam — Thursday, Oct. 12, 2017

As part of a discussion in preparation of a panel at the upcoming 2017 ABA Administrative Law Conference on “The State of Regulatory Reform in Congress,” it occurred to me that around these parts (Congress) “reg reform” is a widely used shorthand with no universally accepted meaning.

Going back to last Congress, when Sen. Johnson assumed the Chair of the Senate Committee on Homeland Security and Governmental Affairs, we attempted to frame the committee’s efforts on regulatory reform as having three components: (1) accurate measurement and better understanding of existing federal regulation’s economic impact; (2) changes to analytical inputs to prospective rulemakings; and (3) retrospective review. Thus was the framing of the committee’s initial hearing on this back in February 2015.

Since then “reg reform” (as shorthand) has taken on more urgent and broader use. Below are broadly the three meanings given to the expression when used in Congress:

Outcome-based reforms: most often in purely political contexts, but elsewhere as well, members of Congress and senior Executive officials use reg reform as a means of describing specific changes to regulations, often deregulation and outright repeals. In this context, reg reforms refer to a specific desired policy outcome(s). This could include repeal of rules that flowed from, e.g., Dodd-Frank, Affordable Care Act, etc. but it also includes maximal use of the disapproval mechanism afforded under the Congressional Review Act. In other words, reg reform here is used as the general catch-all for mechanisms to change or undo specific regulations.

Structural reforms: this bucket includes those proposals which seek to significantly alter the relationship between branches of government vis-à-vis delegation of authority. Congressional proposals like the REINS Act do not target any specific (body of) rules nor do they directly change the agency’s process by which they develop and promulgate rules. Rather they seek to redress a perceived abrogation of Congressional authority which Congress has ceded over decades. Some regulatory budget proposals (omitting the current Administration’s executive orders) would fall in this bucket as they would require Congressional approval of agencies’ regulatory costs.

Procedural reforms: we can sum up this category by calling them APA reforms. That is, these reg reforms have mostly to do with the “how” of agency rulemakings. The most prominent of these reforms, the Regulatory Accountability Act, codifies certain longstanding analytical requirements agencies must undertake as inputs into informal rulemakings (among other things). Other reforms include changes to the Regulatory Flexibility Act, Paperwork Reduction Act, and other laws which impose mandatory procedures as a necessary condition for promulgating new rules.

At the panel discussion, we hope to dig in deeper on these three buckets and further discuss the prospects for each going forward.

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