Editor’s Note:

This report is part of the Series on Regulatory Process and Perspective and was produced by the Brookings Center on Regulation and Markets.

Author

Resisting the Trump administration is the order of the day for most Democrats and much of our commentariat. And yet, one of the bills that would do the most to check the executive branch’s ability to act arbitrarily has almost no Democratic support and next to no coverage in the mainstream press.[1]

The bill is the Regulatory Accountability Act (RAA), S. 951, sponsored by Sen. Rob Portman (R-OH). The Senate Homeland Security and Governmental Affairs Committee approved the bill 9-5 in May 2017, and issued its Committee Report last month. The bill will now look for a way to get to 60 votes in the Senate, but its prospects do not look bright.

Why have the politics developed in this way, especially considering progressives’ widespread desire to find ways of boxing in the Trump administration? There are principled and cynical explanations, both worth examining.

On a principled basis, the RAA’s supporters present the bill as an effort to update the Administrative Procedure Act (APA) in line with the recommendations of such nonpartisan expert groups as the American Bar Association and the Administrative Conference of the United States. The RAA, its supporters claim, is meant to codify and build on the practices of prospective and retrospective benefit-cost analysis that administrations of both parties have developed over the last four decades.

It does so by making APA compliance conditional on the quality and rigor of the analyses, so that if agencies skip the necessary analysis or do it badly, judges can reverse their substantive actions (or merely suspend them, by remanding without vacatur, as per the Act’s proposed change to 5 U.S.C. § 706). All these requirements would apply just as much to deregulatory actions as to new regulations.

Oddly enough Republicans, sometimes portrayed (by themselves and others) as opponents of the administrative state writ large, here present themselves as its truest defenders, working to incrementally strengthen the process and therefore ensure its legitimacy.

The RAA’s opponents, on the other hand, attack the bill as a wolf in sheep’s clothing. They argue that the benefit-cost analysis practices that have served agencies well when developed and implemented independently will be transformed by the RAA into a straitjacket meant to frustrate all attempts at further regulation. New…