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

This article looks at the wisdom of proposed reforms to reign in nonlegislative rulemaking, which allow regulatory 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 to move 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.