Taking Politics Out of Federal Safeguards
Public policy scholars, think tanks, and the press have long focused public and academic debate on questions of policy outcomes. But such myopia obscures what may be the most significant policy problem facing our country today: outdated procedural safeguards that govern the policymaking process in administrative agencies.
In the United States, agencies are tasked with implementing rules written by Congress. But what many people don’t realize is that Congress writes statutes with intentional ambiguity, allowing agencies to fill in the blanks. As a result, agencies wield extraordinary power in developing public policies that affect all areas of our lives. There is nothing agency regulation does not touch—these regulations govern our banks, which underpin our financial system; drug manufacturing, which provides lifesaving cures for sick children; and the IRS, which determines how much money working families pay and receive each and every year.
During agency design of a vast array of public policies, a fixed set of administrative safeguards facilitate and check the authority of our federal agencies. These procedural requirements, largely specified by the Administrative Procedure Act (APA), impact the quality, thoroughness, and transparency of all regulations governing our country. If as a nation, we profess deep concern over the outcomes of our public policies, we must also ask whether the procedural safeguards that shape and define these outcomes are working properly.
It is no secret that our current set of procedural safeguards are at best, poorly understood; and at worst, completely dysfunctional. Agency policymaking processes are primarily governed by a statute written in 1946, which has remained largely un-amended over the last 50 years. In effect, the APA and judicial interpretation of its requirements have created a procedural regime fraught with outdated and onerous requirements. Major rules, released in concordance with APA requirements, often take agencies over a decade to release. For example, it is extremely unlikely that a major rulemaking will be completed in the same presidential administration in which it began. But even more problematically, agencies often face coercive political pressures and statutory deadlines to release rules quickly. Often, agencies have little choice but to cut procedural corners, bypassing APA safeguards altogether.
This much is clear—the current procedural system is not well-understood, in part because it receives so little public attention. Moreover, what little we do know suggests that the APA requires serious reconsideration. At the very least, scholars, think-tanks, advocates and legislators must devote significant attention to understanding the effectiveness of our procedural safeguards, assessing whether there are more efficient and transparent processes available.
As a starting point, reformers might consider:
• Maximizing Efficiency. Agencies currently face burdensome requirements, and are often unable to release major rules within the same presidential administration. While forcing agencies to adhere to procedural safeguards under an extended timeline keeps agencies honest, policymakers should consider whether certain APA requirements can be relaxed so agencies can still release policies under more expedited timelines.
• Strengthening Safeguards. As procedural requirements have become too onerous, agencies have developed alternative policymaking strategies that bypass the APA altogether. These alternatives have become the new normal in many agencies. As such, the APA must evolve to hold agencies pursuing alternative strategies accountable, forcing them to meet requirements of notice, public participation and cost-benefit analysis, even if they choose to pursue less rigorous alternatives.
• Retrospective Review. Once a regulation is released, agencies are not currently required under the APA to track and evaluate whether the regulation is working. One way to ensure that regulations are meeting objectives is to require rigorous retrospective analysis. Such analysis will allow agencies to determine whether regulations meet objectives established by the Agency and Congress, and whether the regulation actually maximizes societal benefits at limited cost.
• Procedural Flexibility. Historically, the APA established a unitary set of administrative procedures that regulate private-entities, states, tribes, and individuals under the same set of requirements. The question, for example, is whether states and corporations might have different procedural needs when interacting with federal agencies. Policymakers should consider whether procedural flexibility depending on the type and substance of regulations may be warranted.
To date, politicians on both sides of the aisle have spent relatively little time discussing administrative procedural reform. This is no surprise, as reforming the Administrative Procedure Act will be a technical, unsexy, and intractably legal. But, reforming the APA also offers members of Congress a distinct opportunity—such reform will be decidedly non-partisan. The simple truth is that procedural reform is supportable regardless of political persuasion. Together, we must start a bipartisan discussion on revising the APA to accommodate the contemporary challenges faced by administrative agencies. Perfecting the procedural safeguards that govern agencies is essential to the effective governance of our country, touching each and every policy debate of our time.
Rosa Po is a J.D. candidate at Yale Law and a Graduate Policy Fellow at ISPS. Her research focuses on the relationship between the Affordable Care Act regulatory process and health care policy design.