Mercatus Releases Five Academic Articles in Harvard Journal of Law and Public Policy

The Mercatus Center at George Mason University is proud to announce a new multi-author collaboration published in the Harvard Journal of Law and Public Policy exploring ways federal regulatory agencies circumvent formal procedures during the rulemaking process. 

The Administrative Procedure Act and oversight by the Office of Information and Regulatory Affairs (OIRA) ensure that technical expertise drives agency decision making and provide regulatory accountability to the public. However, evasive practices allow regulators to implement policy without adhering to the procedures that represent part of the checks and balances of American government.

The editor of the series is Dr. John D. Graham, former administrator of OIRA and current Dean of the School of Public and Environmental Affairs at Indiana University. The papers appear in Volume 37, Issue 2 of the Harvard Journal of Law and Public Policy. Along with Graham, the other authors in the series are Nina A. Mendelson of Michigan Law School, Jonathan Wiener of Duke University School of Law, Henry N. Butler of George Mason University School of Law, Stuart Shapiro of Rutgers University, and Jerry Brito of the Mercatus Center at George Mason University. Below are summaries and links for each paper.

Regulatory and Quasi-Regulatory Activity without OMB and Benefit-Cost Review

By John D. Graham and Cory R. Liu

This paper illustrates methods agencies use to implement policy outside the purview of the Office of Management and Budget and benefit-cost review guidelines, including Issuance of quasi-regulatory documents such as guidance documents, approval of selective waivers of federal preemption of state regulation, Issuance of hazard determinations, and “sue and settle” regulations resulting from litigation settlements.

Responding to Agency Avoidance of OIRA

By Nina A. Mendelson and Jonathan B. Wiener

In this article, the authors summarize the system of presidential regulatory oversight through OIRA review, as well as analyze the incentives for agencies to cooperate with or avoid OIRA. The authors identify a broad array of agency avoidance tactics, as well as corresponding response options available to OIRA, the President, Congress, and the courts. They argue that the relationship between agencies and oversight involves ongoing repeated interactions; some avoidance tactics are easier to address than others. The authors urge that responses to agency avoidance should be based on weighing the pros and cons of alternative response options, including the possibilities of subsequent moves and countermoves.

“Agency Threats” and the Rule of Law: An Offer You Can’t Refuse

By Jerry Brito

Agencies often use guidance documents, best-practice documents, policy statements, and other informal pronouncements to avoid executive regulatory review and other accountability measures that ostensibly slow the process. This paper adds to this growing literature to incorporate policymaking through the issuance of completely unenforceable threats and asks what implications this has for American governance and the rule of law.

Sue, Settle, and Shut Out the States: Destroying the Environmental Benefits of Cooperative Federalism

By Henry N. Butler and Nathaniel J. Harris

In recent years, environmental advocacy groups have increasingly succeeded in using a faux litigation strategy to effectively trample the statutory regulatory framework and to shut out the states from important policy decisions. This policy-making process— called “sue-and-settle” or “suit-and-settlement”—not only violates the statutory framework, but also leads to haphazard policy that would not likely meet the standards of any serious policy analyst.

Agency Oversight as “Whac-a-Mole”: The Challenge of Restricting Agency Use of Non-Legislative Rules

Stuart Shapiro

This article looks at the wisdom of proposed reforms to reign in non-legislative rulemaking, which allow agencies to make policy without the procedural protections associated with legislative rules. Agencies are likely to react to a restriction on one type of policymaking activity by moving to even more difficult-to-monitor methods of setting policy that escape oversight. Imposing regulatory procedures is as likely to result in a game of “Whac-a-Mole,” with agencies changing policy instruments to avoid oversight, as it is to improve oversight.