Administrative State
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In federaladministrative law,regulatory review refers to processes used by Congress, the president, and the courts to oversee the rules, regulations, and other policies issued by federal agencies. Regulatory review may involve an examination of the content or effect of a rule, its estimated economic costs and benefits, or the adherence of the rule and the rulemaking agency to procedural requirements.

Retrospective regulatory review, a type of regulatory review, is used to determine if existing regulations should be retained, modified, or repealed.

The sections below provide information and links to other articles about laws,executive orders, agencies, legal principles, and concepts related to federal regulatory review.

Congressional review

Legislation

• Administrative Procedure Act (APA)
  • A federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known asrulemaking. The APA also addresses policy statements and licenses issued by agencies and provides forjudicial review of agencyadjudications and other final decisions.^[1][2][3] Prior to the APA, there were no federal laws governing the general conduct of administrative agencies.^[4]
• Congressional Review Act (CRA)
  • A federal law passed in 1996 creating a review period during whichCongress, by passing ajoint resolution of disapproval that is then signed by the president, can overturn new federal agency rules and block those agencies from creating similar rules in the future. Prior to 2017 the law was successfully used only once, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, PresidentDonald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end ofBarack Obama's (D) presidency.^[5][6][7]
  • For a list of joint resolutions of disapproval passed by Congress and signed by the president, see our article on: "Federal agency rules repealed under the Congressional Review Act."

Agencies

• U.S. Government Accountability Office (GAO)
  • An independent, nonpartisan agency that is contracted and under the supervision of the U.S. Congress.^[8] Regulations defined asmajor rules under the Congressional Review Act are subject to a procedural review by the GAO and may have their proposed effective dates delayed.^[9]

Terms and definitions

• Joint resolution of disapproval
  • A measure, introduced and considered by Congress under the terms of the Congressional Review Act, that overturns a new federal agency rule and blocks the issuing agency from creating similar rules in the future without specific authorization. As with all bills and joint resolutions, a joint resolution of disapproval must be passed by both houses ofCongress in identical form and sent to the president for approval or passed over a presidential veto by two-thirds of the members of each house.^{[10][11][9][5][6][7]}
• Major rule
  • A legal term, defined by the Congressional Review Act, for a rule issued by an agency that has had or may have a large impact on some aspect of the economy, such as prices, costs, competition, employment, or investment. Under the CRA, there is a period of 60 legislative days, starting from the publication or submission of afinal agency rule, during which Congress and the president can pass a joint resolution disapproving the rule. Regulations defined as major rules under the CRA are subject to a procedural review by theU.S. Government Accountability Office and may have their proposed effective dates delayed.^[5][6][9]

Executive review

Executive orders

See also:Retrospective regulatory review

Executive Order 12866, "Regulatory Planning and Review," is a presidentialexecutive order issued byPresidentBill Clinton in 1993 establishing principles and processes to govern federal agencyrulemaking, regulatory planning, and regulatory review. It was designed to guide presidential oversight of regulatory and administrative policy. E.O. 12866 provides for the incorporation of public comments into the rulemaking process and the public release of documents related to theregulatory review process. The order also authorizes theOffice of Information and Regulatory Affairs (OIRA) within theOMB to review what it considers all new andpreexistingsignificant regulatory actions.^[12][13][14]

Agencies

• U.S. Office of Information and Regulatory Affairs (OIRA)
  • A division of theOffice of Management and Budget; Its responsibilities include regulatory review, clearance and approval of government information collection requests, and oversight of government statistical practices and privacy policies. OIRA is responsible for reviewing and coordinating what it deems allsignificant regulatory actions made by federal agencies, excluding those defined asindependent federal agencies.^[15][16][17]
• Administrative Conference of the United States (ACUS)
  • Anindependent federal agency tasked with developing recommendations to improve federal administrative processes. ACUS recommendations focus on organizational and procedural administrative reforms rather than substantive policy issues.^[18]

Terms and definitions

• Significant regulatory action (includeseconomically significant rules andother significant rules)
  • An agency rule that has had or may have a large impact on the economy, environment, public health, state or local governments or communities, or may cause other issues such as conflicts or inconsistencies with other agencies or rules or with the priorities of the president. The term was defined by Executive Order 12866. As part of its role in the regulatory review process, the Office of Information and Regulatory Affairs determines which rules meet this definition are thus are subject to its review.^[12][13][14]
• OIRA prompt letter
  • A letter issued to a federal agency by the Office of Information and Regulatory Affairs that proposes a recommendation for new regulatory action. The letters are independently developed by OIRA and are not sent as response letters to ongoing agency rulemaking activity.
• Regulatory impact analysis (RIA)
  • A process used by regulators and other government officials to assess the anticipated costs and benefits of a regulation. The process involves comparing the estimated effects of a regulation with the estimated effects of other regulatory and non-regulatory options, including inaction. RIAs are used by the federal government to inform therulemaking andregulatory review processes.^[19][20][21]

Judicial review

Thearbitrary-or-capricious test is a legalstandard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946Administrative Procedure Act, which instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency'srulemaking, especiallyinformal rulemakings.^{[1][2][3][22]}

Deference is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. TheU.S. Supreme Court has developed several forms of deference in reviewing agency actions, includingChevron deference,Skidmore deference, andAuer deference.^[23][24]

State approaches to regulatory review

The review process of state agency rules differs from state to state, according to 2022 research by the Mercatus Center. In some cases, executive review of state regulations is required, whereas other states may require legislative review or review by an independent agency. In some states, all rules must undergo the same degree of review. In other states, a review of regulatory action is triggered by an economic threshold or a small business impact.

The specific procedures for regulatory review vary between states. For example, some states require the governor to approve all rules as a form of executive review and some states delegate executive review to a state agency or department such as the California Office of Administrative Law. Additionally, some states require more than one form of review, such as requiring a legislative review after an executive review, whereas other states do not. Thirteen states, as of a 2022 report, require an independent agency review of certain rules, often in addition to an executive review or a legislative review.^[25]

See also

• Rulemaking
• Adjudication
• Retrospective regulatory review

External links

• Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs" (2017)
• Executive Order 13610, "Identifying and Reducing Regulatory Burdens" (2012)
• Executive Order 13563, "Improving Regulation and Regulatory Review" (2011)
• Executive Order 12866, "Regulatory Planning and Review" (1993)
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Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget