Regulatory Process

Topics

Federal agencies are tasked with implementing the broad, and often vague, goals provided by Congress in legislation and then signed into law by the President. How do agencies follow established regulatory procedures that promote the rule of law and transparency? Where do they depart from such standards?

The Proper Role of Rules in a Gloriously Unruly Economy

August 28, 2019

With examples of regulatory policies that failed to achieve their stated goals and regulatory reforms that proved effective and beneficial to the public, the authors of this paper argue for an approach to regulation that encourages, rather than stifles, creativity and competition. This kind of rulemaking, they suggest, makes for a stronger and more inclusive economy.

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Government Regulation: The Good, The Bad, & The Ugly

June 12, 2017

The authors of this paper examine the important role regulations play in a vibrant economy, how they differ from other government programs, why they can produce unintended consequences, and how reforms could help us achieve the benefits regulations can provide with fewer negative outcomes.

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Deep Dive Episode 197 – Competition at a Crossroads: Will the Executive Order on Competition Advance Competition, or Restrict It?

September 10, 2021

A distinguished panel joined us to lay out the arguments behind and implications of Biden’s executive order on competition.

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Deep Dive Episode 190 – The Implications of the Latest Congressional Review Act Disapprovals

July 19, 2021

Todd Gaziano and Professor Jonathan Adler discuss the CRA and the ramifications of its use on the three rules this year.

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Deep Dive Episode 188 – Immigration Policymaking in the Biden Administration

July 14, 2021

An expert panel debates the appropriate regulatory process for immigration policymaking.

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Deep Dive Episode 183 – The Path Forward on Agency Guidance

June 25, 2021

An expert panel discusses all things agency guidance – what it is, how and why it is issued, pros and cons of current guidance practices, and more.

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Deep Dive Episode 181 – State of Emergency? Kentucky’s Legislature vs. Governor

June 22, 2021

Mitchel Denham and Oliver Dunford debate the implications of two cases that could shape the future of emergency government powers in Kentucky.

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Deep Dive Episode 180 – Book Review: Administrative Law Theory and Fundamentals: An Integrated Approach

June 10, 2021

Professors Ilan Wurman and Richard Epstein discuss Professor Wurman’s new casebook on administrative law.

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Explainer Episode 25 – President Biden’s Memo on “Modernizing Regulatory Review”

May 10, 2021

Ken Davis joined the podcast to discuss why and how President Biden’s memo on Modernizing Regulatory Review could significantly alter the regulatory review process.

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Deep Dive Episode 161 – Congressional Review Act: First Branch Gets the Last Word

February 4, 2021

In this live podcast, experts review the overriding purposes of the CRA and do a deep dive into its technical elements.

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Deep Dive Episode 152 – COVID-19 Regulatory Waivers and Suspensions: What Will the Biden Administration Do?

December 21, 2020

Will the Biden administration continue existing waivers and suspensions as is, or will it take a new tack on regulatory flexibility during the continuing pandemic?

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Deep Dive Episode 151 – Public Input in Agency Rulemaking

December 17, 2020

An expert panel considers the legal and policy issues surrounding whether, and how, an agency should take account of public comments in rulemaking.

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Deep Dive Episode 145 – The True Extent of Executive Power

November 16, 2020

The Federalist Society’s Georgetown Law Student Chapter and the Regulatory Transparency Project hosted John Yoo and Saikrishna Prakash for a discussion on the extent of executive power.

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Deep Dive Episode 126 – Minutes to Midnight, or Teeing Up a Second Term?

August 19, 2020

To what extent can the current administration issue “midnight rules” affecting policy beyond January 20? And to what extent could the Congressional Review Act permanently erase those rules?

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Deep Dive Episode 121 – Book Review: The Dubious Morality of Modern Administrative Law

July 22, 2020

In this live podcast, Prof. Adam J. White interviews Prof. Richard Epstein about his new book, and then Prof. Epstein fields caller questions on administrative law.

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Deep Dive Episode 116 – Surviving COVID-19: The Small Business Perspective

June 3, 2020

In this episode, Karen Harned discusses policies that can help or harm the resilience of small business in the time of COVID-19.

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Deep Dive Episode 113 – Executive Orders on Guidance: Implications and Next Steps

May 28, 2020

In this episode, experts discuss a 2019 executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the internet.

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Deep Dive Episode 107 – COVID-19 in the Workplace: Mandated Paid Sick Leave

April 24, 2020

On March 18, the Senate passed and the President signed into law the “Families First Coronavirus Response Act.” Karen Harned and James Paretti will walk listeners through key provisions of this new law.

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Deep Dive Episode 88 – The Whys and Hows of Commenting on Rules

February 19, 2020

In this episode, Susan Dudley, Karen Harned, and Brian Mannix give an overview of the process and value of the public commenting process for proposed regulations.

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Deep Dive Episode 87 – The Dubious Morality of Modern Administrative Law

February 11, 2020

This podcast features audio from a recent event held at the University of California, Berkeley, featuring the insights of Richard Epstein and Daniel Farber.

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Deep Dive Episode 80 – New Executive Orders Directing Agency Guidance

November 7, 2019

How significant are these orders? What impact will they have on regulatory policymaking? What has been the initial reaction to these new measures?

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Deep Dive Episode 79 – An Update on Gundy v. United States

October 31, 2019

Gundy v. U.S. has enormous implications for how much power federal bureaucrats can be given by Congress. In this episode, panelists discuss this case and a potential future without such extensive power for federal agencies.

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Deep Dive Episode 77 – Book Review: The Capitalism Paradox: How Cooperation Enables Free Market Competition

October 24, 2019

In this episode, Paul Rubin, the world’s leading expert on cooperative capitalism, discusses his new book, The Capitalism Paradox: How Cooperation Enables Free Market Competition.

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Deep Dive Episode 66 – Americans with Disabilities Act Litigation Enters a New Frontier – Websites

July 26, 2019

Karen Harned will provide the background on this new trend in ADA litigation, the current state of the law, and highlight a case the Supreme Court is being asked to take this next term on the issue.

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Deep Dive Episode 65 – Subdelegations of Rulemaking Power and the Appointments Clause

July 25, 2019

In this episode, experts discuss whether the constitution permits inferior officers in federal agencies to issue binding rules.

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Deep Dive Episode 62 – An Update on Kisor v. Wilkie

July 3, 2019

In this episode, Karen Harned and Stephen Vaden discuss the Supreme Court’s recent decision in Kisor v. Wilkie, a case with important implications for judicial deference to agency interpretation of rules.

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Deep Dive Episode 61 – Gundy v. United States: Revisiting the Nondelegation Doctrine, or Not?

June 28, 2019

How much discretion can Congress delegate to federal agencies and their officers while still retaining the separation of powers? Mark Chenoweth discusses the Supreme Court’s decision in Gundy v. United States and its implications going forward for the nondelegation doctrine.

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Deep Dive Episode 55 – Regulatory Reform Report Card: Agency General Counsel Perspective

May 28, 2019

In this episode, General Counsels from a number of federal agencies take stock of the current administration’s regulatory reform agenda two years on.

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Deep Dive Episode 40 – Kisor v. Wilkie

April 1, 2019

In this Fourth Branch podcast, Stephen Vaden moderates a discussion between Karen Harned and Andrew Varcoe on Kisor v. Wilkie, a case which has broad and significant implications for issues surrounding judicial deference to agency interpretation of regulations.

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Deep Dive Episode 25 – The Commenting Power: Agency Accountability through Public Participation

March 21, 2018

Did you know that you have a say in the U.S. government’s regulatory process? Donald Kochan (Chapman University Fowler School of Law) and Maleka Momand (Argive) discuss the notice and comment rulemaking process in this episode of Fourth Branch.

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Deep Dive Episode 24 – Regulatory Scorecard: A Conversation with Administrator Neomi Rao

February 8, 2018

In this episode of Fourth Branch, Administrator Neomi Rao (Office of Information and Regulatory Affairs) shares her thoughts on federal regulatory changes over the previous year.

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Deep Dive Episode 21 – Shining a Light on Regulatory Dark Matter: Regulating Through Guidance

January 24, 2018

Stephen Cox (Department of Justice) and Paul R. Noe (American Forest & Paper Association) discuss concerns regarding the development and use of guidance documents by agencies and how these concerns are being addressed by the Department of Justice.

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Deep Dive Episode 20 – The 2017 Mercatus Report: The Implications of Regulating Over the Long-Term

January 23, 2018

Patrick McLaughlin (Mercatus Center) discuss his study on regulation’s effect on the decision-making processes of individual businesses and, as a result, on economic growth.

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Deep Dive Episode 9 – Bureaucracy in America

August 10, 2017

Joseph Postell (University of Colorado-Colorado Springs) discusses the administrative state, how it has changed over time, and how these changes have influenced our constitutional system.

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Deep Dive Episode 6 – Laws, Regulations, and “Regulatory Dark Matter”

July 19, 2017

Wayne Crews (Competitive Enterprise Institute) explores “regulatory dark matter”: the thousands of executive branch and federal agency proclamations and issuances that carry practical (if not always technically legally) binding regulatory effect.

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Competition at a Crossroads: Will the EO on Competition Advance Competition, or Restrict It?

September 10, 2021

A distinguished panel joined us to lay out the arguments behind and implications of Biden’s executive order on competition.

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The Implications of the Latest Congressional Review Act Disapprovals

July 28, 2021

Professors Jonathan Adler and Todd Gaziano discuss the CRA and its use on 3 rules earlier this year.

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Immigration Policymaking in the Biden Administration

July 14, 2021

An expert panel debates the appropriate regulatory process for immigration policymaking.

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The Path Forward on Agency Guidance

June 21, 2021

On Friday, June 18, the Regulatory Transparency Project hosted a panel discussion on all things agency guidance.

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Talks with Authors: Administrative Law Theory and Fundamentals: An Integrated Approach

June 11, 2021

Professors Ilan Wurman and Richard Epstein discuss Professor Wurman’s new casebook on administrative law.

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How Do Regulatory Agencies Implement Laws?

March 22, 2021

After a law is passed by Congress, how is it implemented? Susan Dudley explains.

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The True Extent of Executive Power

November 16, 2020

The Federalist Society’s Georgetown Law Student Chapter and the Regulatory Transparency Project hosted John C. Yoo and Saikrishna B. Prakash for a discussion on the extent of executive power.

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Regulation Over the Decades

October 24, 2017

How have the regulations emanating from Washington changed over the years? Chris DeMuth, Distinguished Fellow at the Hudson Institute, draws from personal experience as he discusses the transformation of the regulatory state over the decades.

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Can Regulations Come With Unintended Costs?

October 19, 2017

While the goals of regulations are often admirable, regulations may come with unintended consequences. Sometimes, regulations can hurt those they were intended to benefit. Susan Dudley, Director of the George Washington University Regulatory Studies Center, discusses these unintended costs and her work at the Regulatory Studies Center.

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Incentives for Regulators?

October 12, 2017

How do individual regulators operate within agencies to create and maintain regulations? Are regulators incentivized to pursue policy goals defined by Congress, their own policy preferences, or other factors? How does the regulatory institution itself contribute to policy goals? George J. Terwilliger, III examines these questions.

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Can Economic Incentives Produce a Good Outcome in Regulation?

October 2, 2017

Can providing market incentives produce desirable and more efficient outcomes in regulation? Chris DeMuth, Distinguished Fellow at the Hudson Institute, presents as a case study President Ronald Reagan’s permitting solution to the problem of lead in gasoline.

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How Do Regulations Get Made?

September 22, 2017

What is the mechanism by which regulations are developed, finalized, and updated? How can this process be improved? Susan Dudley, Director of the George Washington University Regulatory Studies Center, provides insight into these questions.

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Regulation from Washington: Exploring Unseen Costs

September 20, 2017

Regulations emanate from Washington and “affect every aspect of our lives, but we’re often unaware of it because they do so in hidden ways.” What are these effects and do they benefit American workers, companies, and consumers? A variety of experts on regulatory issues discuss this important question.

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Regulation & the American Dream

July 14, 2017

Arguably, regulation has helped us achieve the American Dream. The benefits are numerous. But have regulations gone too far? The Regulatory Transparency Project’s Fourth Branch video series will explore this question.

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An Empty Attack on the Nondelegation Doctrine

Peter Wallison

April 22, 2021

Peter Wallison argues that the Constitution’s separation of powers provides ample justification for a revival of the nondelegation doctrine.

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HHS Proposal Adds Teeth to Requirements for Retrospective Regulatory Review

J. Kennerly Davis

November 18, 2020

There is bipartisan agreement that the cost effectiveness of regulation could be greatly improved if regulatory agencies engaged in systematic retrospective analysis of the benefits and costs of the rules and regulations that they have previously enacted. Such analysis could identify for amendment or rescission specific regulatory provisions that have proven to be unnecessarily costly, counterproductive, ineffective, or simply outmoded.

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It’s Time to Remodel Our Policy Making Processes

J. Kennerly Davis

May 28, 2020

It is time, past time, for a thorough reassessment of the outsized role that modelers and their models have been playing in the formulation of public policy, the drafting of legislation, and the development of regulations.

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Yes, Judge, We Do Think About Reviewability

Brian Mannix

April 24, 2020

Parties who disagree with an agency’s action have recourse to the courts; but, if the agency is doing its job properly, it should not be vulnerable for failures of administrative procedure.

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Reigning in Regulatory Dark Matter

J. Kennerly Davis

November 5, 2019

Curbing administrative overreach to restore the rule of law is an ongoing project without an end in sight. But it’s clear that this most worthy project got a big boost on October 9.

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Man Bites Dog – Idaho Repeals its Regulatory Code

J. Kennerly Davis

July 18, 2019

Idaho has long been widely known for the natural wonders that grace its landscape: the rugged wilderness, the snow-capped peaks, the sparkling waters and, of course, the potatoes.

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The Many Issues Raised by Senator Warren’s Wealth Tax

J. Kennerly Davis, Jr.

March 12, 2019

A strong argument can be made that Senator Warren’s proposed wealth tax would be unconstitutional unless apportioned.

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Government Shutdown and Deregulation

Susan Dudley

January 10, 2019

According to my George Washington University Regulatory Studies Center colleague, Bridget Dooling, a lengthy federal shutdown threatens to derail President Trump’s deregulatory priorities. Not only are covered agencies unable to make progress on their deregulatory initiatives, but the portals for public notice and comment and the office that must review all regulations before they can be issued are caught up in the furlough.

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Regulatory Year in Review

Eileen J. O'Connor

December 17, 2018

Within a week of his inauguration, President Trump signed an Executive Order instructing his Administration to take action to keep his campaign promise to reduce government regulation.  The EO requires federal agencies to eliminate two regulations for every one they issue, and to hold annual incremental cost of regulations to zero.  How is his Administration delivering on those promises?

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On the Future of the Chevron Doctrine

J. Kennerly Davis

September 5, 2018

Joel Nolette is a litigation attorney at Mintz Levin in Boston, and an active member of the Administrative Law & Regulation Practice Group, currently serving on its Executive Committee.

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Management’s Duty to Restore The Rule of Law

J. Kennerly Davis

June 6, 2018

Springtime is the season when most American corporations hold their annual meeting of shareholders.  In the course of a typical meeting, board directors will be elected and independent auditors will be appointed.  Management will report on operating results and earnings for the fiscal year recently ended, and will outline their strategic business plans for the future.  In their presentations, management will make the case that they are fulfilling the fundamental fiduciary duty they have to promote the best interests of the corporation and maximize shareholder value.

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Trends in Government Priorities, 1960 – 2019

Eileen J. O'Connor

May 15, 2018

A new report – by Susan Dudley of the George Washington University Regulatory Studies Center and Melinda Warren of the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis – shows that President Trump plans to increase regulatory activity for border security and immigration in 2019, and to dramatically reduce the budgets of agencies involved in environmental regulation.

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Celebrating Law Day

J. Kennerly Davis, Jr.

May 1, 2018

Today marks the 60th anniversary of President Eisenhower’s proclamation establishing Law Day. Eisenhower dedicated the day to “distinguish our governmental system from the type of government that rules by might alone.”

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Will OIRA Extend its Review to Independent Agencies?

Susan Dudley and Eileen J. O'Connor

April 26, 2018

At the Federalist Society’s Sixth Annual Executive Branch Review Conference, Office of information and Regulatory Affairs (“OIRA”) Administrator Neomi Rao spoke about the new agreement she had hammered out with the Treasury Department to bring OIRA’s review of IRS regulations more in line with its review of other agencies’ regulations. She also strongly hinted that independent regulatory agencies may be next, observing that “OIRA review can promote a more constitutional and coherent regulatory policy,” and that the “good regulatory practices promoted by OIRA can apply to all agencies that regulate the public.” In her latest Forbes column, Susan Dudley agrees.  She argues that OIRA review encourages greater transparency, analytical rigor, and accountability in regulations, and urges the Administration to extend long-standing executive orders requiring OIRA review to all agencies that issue regulations binding on the public.

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Public Participation and the Power of Persuasion

Brian F. Mannix

March 20, 2018

I care about regulatory policy, and over the years have filed comments on the record in dozens of agency rulemakings. Most of these comments have been ignored, but many have been influential – a few spectacularly so. I cannot say the same about the votes I have cast in federal elections.

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Reading Past The Headline In OMB’s Report To Congress

Eileen J. O'Connor

February 28, 2018

As required by the Regulatory Right to Know Act, enacted in 2000, the Office of Management and Budget submits an annual report to Congress outlining the costs and benefits of regulations issued the previous year.  It appears, from the latest report, issued in draft form last Friday, that the benefits of regulations in effect the past ten years are three to eight times their costs.

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Attorney General Directs DOJ to Stop Circumventing APA

Susan Dudley

November 20, 2017

In remarks to the Federalist Society’s National Lawyers Convention on Friday, Attorney General Jeff Sessions announced new Department of Justice policy on issuing guidance “or similar instruments of future effect by other names, such as letters to regulated entities.”

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Using Tax Reform to Reveal the Hidden Cost of the Administrative State

J. Kennerly Davis, Jr.

November 14, 2017

Regulatory compliance costs impose an enormous burden on the American economy, a hidden tax that we all must pay in higher prices and smaller paychecks.

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Can Regulations Come with Unintended Costs?

J. Kennerly Davis, Jr.

October 25, 2017

Can regulations come with unintended costs? They certainly can, and often do.

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