Embracing Ossification: With Donald Trump in the White House, pro-regulation forces are changing their view on regulatory procedure.

AuthorShapiro, Stuart
PositionREGULATORY REFORM

In 1992, University of Texas law professor Thomas McGarity coined the phrase "the ossification of the rulemaking process" to describe the challenges agencies face in promulgating regulations. These challenges include procedural steps required by law and by executive order, and judicial review of regulations by the courts. Because of the increased difficulty of issuing regulations, McGarity claimed, agencies were turning to nonregulatory means of setting policy.

Supporters of government regulation now commonly say that requiring agencies to follow certain procedures when issuing new regulations is stifling government attempts to improve public welfare. Among the requirements they often criticize are the conducting of benefit-cost analysis of regulations, demonstrating the quality of the information used in rulemaking, and virtually any new regulatory reform statute that Congress considers.

As McGarity noted, the concerns about ossification extend to judicial review. Regulatory supporters bemoan the lack of deference in the courts to agency expertise. Finally, even the requirement that agencies solicit public comment before finalizing a regulation, which dates back to the 1946 Administrative Procedure Act, has been criticized as disproportionately helping business interests and not living up to its promise of encouraging broader participation in regulatory decisions.

Meanwhile, opponents of regulation frequently champion these requirements--particularly judicial review, benefit-cost analysis, and the Information Quality Act--as necessary to ensure that regulatory policy is rational and democratic. The continual efforts in Congress to reform the regulatory process, many of which would add new procedures, are generally sponsored by Republicans concerned about the growth of the regulatory state.

NEW FANS, NEW OPPONENTS

These debates have been going on for decades. Butin2017, something dramatic happened: the Trump administration entered the White House and made deregulation a stated priority. Arguably this administration has given the elimination of existing regulations a more significant place in its rhetoric than any previous administration. President Trump has continually emphasized his desire to cut regulations.

He has also dramatically exaggerated his administration's accomplishments in this regard, claiming at one point to have eliminated 22 regulations for every new one the agencies have issued. (See "Deregulation through No Regulation?" Fall 2017.) One of the reasons this claim is an exaggeration is that it counts attempted deregulatory actions as actual deregulation. These actions include proposed repeals that have not yet been finalized, delays of regulations that may or may not be repealed, and announcements of intent to repeal regulations.

Most importantly, many of the attempts at deregulation have been found wanting by the courts. Why have the courts held up Trump's...

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