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Empowering Regulatory Oversight: How Congress Can Hold the Administrative State Accountable

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Empowering Regulatory Oversight: How Congress Can Hold the Administrative State Accountable

June 14, 2023

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Executive Summary

Every year, the White House and federal agencies issue regulations and administrative actions that directly affect the ways that Americans live and work, with limited input from members of Congress, the elected representatives of the people.

In 2022 alone, agencies issued more than more than 3,000 administrative publications that could properly be thought of as regulatory, including 265 “significant rules,” with an estimated cost of over $117 billion. While it is impossible to quantify the annual cost of federal regulations on the economy, estimates have approached $2 trillion.

Congress enables federal agencies to issue regulations and rules by passing laws that give the executive branch the legal authority to issue regulations and administrative rules. But the legislative branch has largely ceded control of regulations and the administrative state to the executive. Congress has not established the necessary legislative powers, expertise, and staff resources to adequately oversee federal regulations.

In 1980, Congress established the Office of Information and Regulatory Affairs (OIRA) within the White House under the Paperwork Reduction Act. A subsequent Reagan administration executive order directed OIRA to oversee federal regulations and administrative actions. Through these actions, OIRA became the hub of regulatory oversight and analysis within the executive branch. However, Congress did not establish a legislative counterpart to OIRA, leaving the legislative branch dependent on an executive office led by an official nominated by the president for systematic reviews of federal regulatory activity. Whereas Congress relies upon an internal budget office (the Congressional Budget Office) to provide prospective estimates of fiscal effects alongside the White House’s own Office of Management and Budget, no such congressional office exists for regulatory effects. The imbalance of executive and legislative capacity for regulatory management and oversight will become even more relevant if the Supreme Court reconsiders its longstanding doctrine of broadly deferring to federal agencies to interpret statutory authority when issuing regulations.

This report reviews past recommendations and legislative efforts to strengthen congressional capacity to oversee regulations and the administrative state. These include establishing a Congressional Regulation Office similar to the Congressional Budget Office, establishing regulation offices to service both parties or chambers on Capitol Hill, and creating new authorities and resources within the Government Accountability Office to independently review congressional regulations. Each of these approaches would improve governance by helping Congress more appropriately carry out its oversight responsibility and the will of the people.

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