By Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.
These are heady days for administrative law. In hearing after hearing on Capitol Hill, members of Congress have examined the virtues and vices of a host of pending bills that aim to encumber regulatory decision-making. There are bills to require congressional approval before major regulations take effect, bills to subject informal agency guidance to notice-and-comment rulemaking, and bills demanding the elimination of one regulation every time another is imposed. For all their differences, however, the bills share a common purpose: to put the kibosh on what their sponsors decry as job-killing regulations.
This is all a bit surreal. Hobbling federal agencies makes sense if the burdens of regulation systematically exceed the public benefits. But they don’t. In comprehensive studies, both Republican and Democratic administrations have repeatedly found that regulation confers substantial net benefits. The notion that federal bureaucrats as a group are heedless of social costs — or worse, that they regulate just for the thrill of it — has no foundation in either fact or theory.
The truth is that some agencies grow so close to industry groups that they may not regulate diligently enough. A few examples: