Update on Portman-Heitkamp Regulatory Accountability Act

by Christopher J. Walker — Saturday, May 20, 2017@chris_j_walker

On Wednesday, the Senate Homeland Security and Government Affairs Committee (HSGAC) reported out favorably the Portman-Heitkamp Regulatory Accountability Act. I’ve blogged about this bipartisan regulatory reform legislation here and here, and I have an more in-depth take on the legislation in an essay forthcoming in Administrative Law Review.

Earlier this week, moreover, The Regulatory Review (f/k/a RegBlog) published a short essay of mine on the legislation, entitled The Regulatory Accountability Act Is a Model of Bipartisan Reform. Here are a few excerpts from that essay:

Like the APA itself, the Regulatory Accountability Act is the product of bipartisan compromise. Indeed, this legislation is what bipartisan regulatory reform should look like. In a forthcoming essay, I provide an in-depth assessment of the proposed legislation. Here, I want to highlight three main points about why the Regulatory Accountability Act is the type of common-sense, bipartisan legislation needed to modernize the APA.

First, the Portman-Heitkamp Regulatory Accountability Act builds on a set of consensus-driven recommendations from the American Bar Association (ABA) and the Administrative Conference of the United States (ACUS). Last year, the ABA House of Delegates approved a resolution to amend the APA’s rulemaking provisions. The ABA Section of Administrative Law and Regulatory Practice developed the nine recommendations included in this resolution, relying on a number of prior ABA and ACUS recommendations.

. . .

Second, the legislation’s drafters struck a number of important, bipartisan compromises. Republicans have long called for agencies to engage in more transparent and publicly accountable processes when making rules. This legislation would require some of those procedures, such as more formalized and public cost-benefit analysis and the opportunity for a public hearing on disputed facts. But the legislation would only apply those more rigorous procedures to rules with an economic impact of at least $100 million.

Finally, this legislation comes at a time when some on the right would prefer fewer procedural hurdles to a “deconstruction of the administrative state.” Republicans control both chambers of Congress and, more importantly, the White House. Republicans are thus well positioned to roll back many of the Obama Administration’s regulations with which they disagree on policy grounds. The Portman-Heitkamp Regulatory Accountability Act, however, makes no distinction between regulation and deregulation. If, as critics on the left have argued, this legislation would make it harder and more time intensive for agencies to regulate, the same would be true of efforts to deregulate.

Definitely go check out the full essay here. And while you’re there, read Bill Funk’s critical take on the Regulatory Accountability Act’s public hearing requirement entitled Requiring Formal Rulemaking Is a Thinly Veiled Attempt to Halt Regulation.


This post is part of the Regulatory Reform in Congress Series, which highlights and analyzes legislative proposals to reform the federal regulatory state. All posts in this RegReform Series can be found here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Christopher J. Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Chair-Elect of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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