An Empirical Portrait of the Modern Administrative State

Anne Joseph O'Connell (Boalt) has posted an excellent paper on SSRN titled Regulation Clock and Political Transitions: An Empirical  Portrait of the Modern Administrative State.  The Abstract:

Despite the administrative state's vast scope, we know frighteningly little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. It uses an immense new dataset I constructed from twenty years' (1983-2003) worth of federal agencies' semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions to examine variation in agency rulemaking activities. The Article focuses on rulemaking at the beginning and end of Presidential Administrations and around shifts in party control of Congress - midnight and crack-of-dawn regulatory activity - while also assessing some patterns outside those periods.

The empirical results offer rich new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each Presidential Administration. Cabinet departments (as a group), however, finished more actions after the 1994 election than in President Clinton's last quarter. Although the press highlighted President Clinton's spate of midnight regulations, President George H.W.
Bush began over one-third more rules in the final quarter of his term than did President Clinton or President Reagan.

The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice and comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, rulemaking without prior comment has increased across a wide range of agencies, a trend that may be strong enough to persist despite the Supreme Court's 2001 decision in United States v. Mead Corporation, which makes notice and comment rulemaking more attractive. Focusing on politics, these shifts in regulatory agendas during political transitions undermine theories of judicial deference based entirely on agency expertise. But they do not support a political accountability theory based solely on the President. Rather, the shifts call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.

Comments

[Hopefully Anonymous]

correction, by "book guy" I meant "book club".

[Hopefully Anonymous]

Anon, I disagree that there is little in the way of thought provoking commentary analysis. I've reviewed a number of the posts and they seem quite thought provoking and at the least link to very substantive and thought provoking analysis. It just seems to be at a high level of rigor and quality, so it's difficult to have an entry point to comment on if one doesn't have the time or background expertise to match the rigor.

For example, the latest post on the abortions & reduced crime studies and debates. Thought provoking commentary and analysis in the link --but also at a high level, so what can one say in response in the comments, without reading the paper, and having the background expertise to comment on it?

It may be a good problem -but I wish at the least experts on the topic would comment in response in the comments so we could all be enlightened by the exchange.

Also, it might be good for the ELS blog to have a book guy, at the introductory/survey level, like Tyler Cowen is starting up on the marginalrevolution.com blog.

[Anon]

It's not that we're intimidated, it's that there's rarely anything of substance to comment on. Lots of paper postings and pointers-which are valuable-but little in the way of thought provoking commentary and analysis. Shame too, because the subject matter is ripe for a good blog.

Disclaimer: This isn't meant as a critique of the current set of bloggers. Bloggers should blog what they want, of course. Having guest bloggers seemed to work for increasing the production of substantive content. Oh yeah, more Zorn.

[Hopefully Anonymous]

I see disturbingly few comments for a blog of this quality, frequency of update, and importance of subject matter. I just want to write that I'm a new and very impressed reader. I'll try to comment whenever I think I have something worthwile to add. If web metrics indicate a substantial readership (such as in the hundreds or more) then I think the high quality of your posts might be intimidating people from commenting.