What Is Regulation?

• Author: Lisa Heinzerling
• Position: Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
• Pages: 667-674

RECONCEIVING REGULATION

What Is Regulation?

LISA HEINZERLING*

ABSTRACT

To understand the ethical dimension of regulation, in particular the relation-

ship between regulation and human liberty, we must first define what we mean

by regulation. Many regulatory critics fixate on the directly coercive power

exercised by administrative agencies. They find that this power necessarily lim-

its liberty, because the only liberty that matters under this conception of regula-

tion is the liberty threatened by the directly coercive power exercised by

administrative agencies. In this essay, I explore what we see when we take a

broader view. When we acknowledge that humans control—that is, regulate—

other humans through a huge array of conduct beyond directly coercive action

by administrative agencies, we can appreciate how badly we will go astray,

from the perspective of human liberty, if we direct our negativity exclusively to-

ward directly coercive action by administrative agencies. To the extent that the

ethical objection to regulation is grounded in human liberty, we must look at all

aspects of regulation—what it does to liberate the people it is meant to help, as

well as what it does to constrain the people it is meant to control—in figuring

out its ethical implications.

In some prominent circles, “regulation” is an object of both fear and scorn.

Conservative commentators have long railed against regulation, minimizing its

benefits and maximizing its costs.

1

The Supreme Court has singled out regulatory

decisions for particularly close legal scrutiny.

2

Donald Trump campaigned and

governed on promises to slash federal regulation.

3

* Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center. This essay

was written in 2020 for a 2021 conference on the ethics of regulation, sponsored by the Georgetown

Institute for the Study of Markets and Ethics. © 2021, Lisa Heinzerling.

1. See, e.g., CLYDE WAYNE CREWS JR., TEN THOUSAND COMMANDMENTS: AN ANNUAL SNAPSHOT OF

THE FEDERAL REGULATORY STATE (2020 ed. 2020).

2. See, e.g., Michigan v. EPA, 576 U.S. 743, 752–53 (2015) (emphasizing regulatory context in

rejecting agency’s statutory interpretation).

3.

667

On campaigning, see, e.g., John W. Miller, Donald Trump Promises Deregulation of Energy

Production, WALL ST. J. (Sept. 22, 2016), https://www.wsj.com/articles/donald-trump-promises-

deregulation-of-energy-production-1474566335 [https://perma.cc/GR43-ANNF]. On governing, see,

e.g., Nadja Popovich et al., The Trump Administration Is Reversing More Than 100 Environmental

Rules; Here’s the Full List, N.Y. TIMES (Nov. 11, 2020), https://www.nytimes.com/interactive/2020/

climate/trump-environment-rollbacks-list.html [https://perma.cc/D52U-HV6X].

Even progressive presidents

have been anxious to prove their anti-regulatory bona fides by subjecting