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APA: rules ___, ___, or ___ policy
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implement, interpret, or prescribe
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All rules listed in
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Federal Register/Code of Federal Regulations
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Three types of rules (by function)
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Substantive, interpretive, procedural
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Self interests from rulemaking
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Congress frees itself, presidents influence direction, judges can easier control, interest groups work with technocrats
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APA: rulemaking =
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an agency process for formulating, amending, or repealing a rule
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Rabin: Populist Era (late 1800s)
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Focused on railroads; ICC passed to fix patchwork of state regs; Munn v Illinois: when private property is affected with a public interest, it is subject to regulatory control by the state
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Rabin: Progressive Era (early 1900s)
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Pure Food and Drugs Act, Meat Inspection Act passed; courts were hostile to new agencies but supported the ICC
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Rabin: World War I and the 1920s
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Need for more govt intervention was recognized, railroads fully nationalized then reprivatized
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Rabin: Depression and the New Deal
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NIRA allowed the president to approve federally enforceable standards for each industry, TVA and other fully govt programs, court pushed back until justices were replaced
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Rabin: Post-New Deal Era
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Passage of APA to structure rulemaking and adjudication processes, Great Society expanded regulatory scope, courts gave regulatory agencies more power
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Rabin: Public Interest Era (1970s)
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New interest in health, safety, conservation --> many new laws expanding regulatory power; courts were fairly deferent
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Rulemaking under Carter
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First major presidential management of rulemaking; five principles: oversight by agency heads, public participation, regulatory analysis, sunset review, plain English
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Rulemaking under Reagan
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60 day moratorium on new rules, mandatory cost-benefit analysis, OMB to review all rules
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Rulemaking under GHW Bush
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Largely followed Reagan
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Rulemaking under Clinton
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Limited OMB review to significant rules
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Rulemaking under GW Bush
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Largely followed Clinton, issued Circular A-4
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Rulemaking under Obama
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Expanded OIRA powers; wanted public participation, coordination among agencies, flexible approaches, scientific integrity, analyses of existing rules
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Rulemaking under Trump
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Every new reg must be accompanied by two repeals
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Biden's first regulatory year (Dooling)
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Three Trump regs repealed through Congressional Review Act; OIRA administrator says priorites are pandemic economic recovery, drinking water, racial justice, climate; significant vacancies in the system
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Circular A-4 (2003)
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Regulatory analysis should include justification for regulation, alternatives, cost-benefit analysis
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Behavioral regulation (Allemanno and Spina)
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People rely on heuristics and biases, nudge can be used to steer people toward certain choices, used in limited ways, randomized controlled trials
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Phishing equilibrium (Akerlof and Schiller)
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People will phish when there is an opportunity; Pareto equilibrium optimizes for wants, not needs
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