The Shutdown’s Evolving Effects on Rulemaking

by Bridget C.E. Dooling — Thursday, Jan. 17, 2019@BridgetDooling

I have a piece up in The Hill with some initial thoughts about 5 ways the partial federal shutdown is playing out in the rulemaking process. The punchline is that the longer key aspects of the federal regulatory process remain idle, the harder it will be for the president to make progress on his deregulatory goals.

I’m updating that piece for another venue with some additional developments. Here’s a sneak peek for our devoted Notice & Comment blog readers. First, Regulations.gov (which is unfunded) suffered an outage today, though it’s back online now. At what point does an outage like that become a problem for the government upon judicial review? Second, the Federal Register (which is unfunded) lowered its threshold for what can be published during this shutdown. The changed stance likely comes as an outgrowth of a 1995 Office of Legal Counsel opinion weighing in on activities that unfunded agencies can undertake to support funded agencies during a partial shutdown. What else might loosen up as a result of this guidance?

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