The Rhetoric and Reality of Regulatory Reform

Abstract

Executive Order (E.O.) 13,422 leaves in place most of the existing 2 review process established earlier under Presidents Reagan through Clinton. But it makes several controversial changes to Clinton's E.O., such as requiring that agencies specify in writing the regulatory problems they seek to solve, giving presidential appointees certain gatekeeping functions as Regulatory Policy Officers, and imposing new review requirements on certain guidance documents. Although these amendments add or modify only a very small amount of the text in the pre-existing Executive Order on regulatory review, the changes have provoked a firestorm. Critics charge that the new Order solidifies presidential control over rulemaking and will hamper agencies' ability to issue timely regulations in the service of social welfare. In this Essay, I focus specifically on the concern that the Order will burden and delay the regulatory process. I compare the criticisms of E.O. 13,422 with criticisms of past procedural changes to the regulatory process, and I juxtapose the perennial concern about administrative burdens and delay with the growth in federal regulation over the past half-century. If procedural controls, such as those in E.O. 13,422, really do impose on regulatory agencies a "paralysis by analysis," then why is the federal government still producing so many high-impact regulations? This Essay raises possible explanations for the disjunction between the rhetoric and reality surrounding regulatory reform, including the possibility that the ultimate impact of the Bush amendments will be largely symbolic.