Inspired by our friends at RegBlog, Open Market is publishing a new blog series this week on pressing issues in administrative law and regulatory policy. Today kicks off the series, which we’ve titled “Worst Procedural Abuses of the Obama Era,” and will include contributions by my colleagues Marc Scribner, Trey Kovacs, and Ryan Radia, and myself.
In a liberal democracy like ours, policy should emanate from the people, as filtered by elected representatives (and, of course, tempered by the Constitution). This principle is attenuated when, as now, the preponderance of policymaking is performed by the administrative state. To be sure, there are statutes—in particular, the Administrative Procedure Act (APA)—that are supposed to ensure that the public has a voice in the agency policymaking process. At the same time, inclusive administrative procedures are resource-intensive, and, as such, agencies have an incentive to try to avoid them. In practice, the Obama administration has proved historically adept at skirting its responsibility for inclusive policymaking, despite its claims to be the most transparent ever. In this four-part series, my colleagues and I will demonstrate only the worst such abuses.
Here is the schedule for this week's series:
- Marc Scribner on abuse of the APA’s good cause exception (Tuesday)
- Trey Kovacs on regulation by guidance document (Wednesday)
- William Yeatman on secret rules (Thursday)
- Ryan Radia on the FCC's net neutrality rules (Friday)
My previous series, responding to Sen. Elizabeth Warren’s (D-MA) recent critiques of the rulemaking process, is here: