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28–907 PDF 2006

THE 60TH ANNIVERSARY OF THE ADMINISTRATIVE PROCEDURE ACT: WHERE DO WE GO

FROM HERE?

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JULY 25, 2006

Serial No. 109–133

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

CHRIS CANNON, Utah Chairman

HOWARD COBLE, North Carolina 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

BRENDA HANKINS, Counsel 

MIKE LENN, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

C O N T E N T S 

JULY 25, 2006

OPENING STATEMENT 

Page 

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 1

The Honorable Melvin L. Watt, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 3

WITNESSES 

Professor William West, The Bush School of Government and Public Service, 

Texas A&M University, College Station, TX 

Oral Testimony ..................................................................................................... 46

Prepared Statement ............................................................................................. 48

Professor Marshall Breger, The Catholic University of America—Columbus 

School of Law, Washington, DC 

Oral Testimony ..................................................................................................... 53

Prepared Statement ............................................................................................. 56

Professor M. Elizabeth Magill, University of Virginia School of Law, Charlottesville, VA 

Oral Testimony ..................................................................................................... 69

Prepared Statement ............................................................................................. 73

Professor Cary Coglianese, University of Pennsylvania Law School, Philadelphia, PA 

Oral Testimony ..................................................................................................... 77

Prepared Statement ............................................................................................. 81

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress from the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 2

Material submitted by Chairman Cannon from the Federal Administrative 

Law Judges Conference ....................................................................................... 5

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Revised Prepared Statement of Professor M. Elizabeth Magill, University 

of Virginia School of Law, Charlottesville, VA 107

Response to Post-Hearing Questions from Professor William West, The Bush 

School of Government and Public Service, Texas A&M University, College 

Station, TX ............................................................................................................ 112

Response to Post-Hearing Questions from Professor Marshall Breger, The 

Catholic University of America—Columbus School of Law, Washington, DC 116

Response to Post-Hearing Questions from Professor M. Elizabeth Magill, University of Virginia School of Law, Charlottesville, VA ...................................... 122

Response to Post-Hearing Questions from Professor Cary Coglianese, University of Pennsylvania Law School, Philadelphia, PA .......................................... 124

(1)

THE 60TH ANNIVERSARY OF THE ADMINISTRATIVE PROCEDURE ACT: WHERE DO WE 

GO FROM HERE? 

TUESDAY, JULY 25, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 11:30 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Chris 

Cannon (Chairman of the Subcommittee) presiding. 

Mr. CANNON. The Committee on the Judiciary’s Subcommittee on 

Commercial and Administrative Law will come to order. 

The current Federal regulatory process faces many significant 

challenges. Just last week, the Subcommittee on Commercial and 

Administrative Law conducted a hearing on legislation aimed at 

addressing various loopholes and recurrent inefficiencies involving 

the Regulatory Flexibility Act of 1980. As this hearing revealed, 

these shortcomings in the regulatory process translate into real 

costs that are borne by every American. 

Other problematic issues that have arisen over the years in the 

area of administrative law and procedure include the absence of 

transparency at certain stages of the rulemaking process, the increasing incidence of agencies publishing final rules without having 

them first promulgated on a proposed basis, the stultification of 

certain aspects of the rulemaking process, and the need for more 

consistent enforcement by agencies. 

Given the fact that the Administrative Procedure Act was enacted more than 60 years ago, a fundamental question that arises 

is whether the act is still effective in the 21st century. 

To help us answer that question, House Judiciary Committee 

Chairman Sensenbrenner, with the active support of Ranking 

Member Conyers, last year asked our Subcommittee to spearhead 

the Administrative Law Process and Procedure Project. 

With the objective of conducting a nonpartisan, academically 

credible analysis, the project will culminate with the preparation of 

a detailed report with recommendations for legislative proposals 

and suggested areas for further research to be considered by the 

hopefully soon-to-be reactivated Administrative Conference of the 

United States. 

As many of you know, ACUS was an independent agency that 

served as a think-tank and made numerous recommendations that 

2

improved efficiency, adequacy, and fairness of the procedure used 

by agencies to carry out administrative programs. We are particularly pleased that Professor Breger, who previously served 6 years 

as the chairman of ACUS, is here to share his views on the state 

of the APA, especially in light of his experience with ACUS. 

Today’s hearing is one of a series of programs and hearings that 

our Subcommittee has conducted as part of this project. In addition 

to the Regulatory Flexibility Act, the Subcommittee conducted a 

hearing on the Congressional Review Act, as well as a hearing on 

the project itself. 

The Subcommittee has also cosponsored two symposia as part of 

the project. The first symposium, held last December, focused on 

Federal e-Government initiatives. This program, chaired by Professor Coglianese, examined the executive branch’s efforts to implement e-rulemaking across the Federal Government. Professor 

Coglianese will provide a summary of that symposium for us today, 

as well as an update on subsequent developments, especially with 

respect to the Government-wide Federal docket management system. 

The Subcommittee’s second symposium examined the role of 

science in the rulemaking process. Issues considered at that program included OMB’s recent initiative dealing with regulatory 

science and the role of science advisory panels. 

A further symposium is planned for September 11, 2006, which 

will examine such issues as the respective roles that the executive 

and legislative branches play in the rulemaking process. As part of 

the project, several studies are also being conducted. One of these 

studies, which another of our witnesses, Professor Bill West, will 

discuss today, examines how agencies develop proposed rules. 

While the APA generally requires agencies to involve the public 

in the rulemaking process by publishing notices of proposed rulemaking to which the public can submit comments, critical decisions 

regarding proposed rules are often made in the months and perhaps even years before rules are published. Surprisingly, little is 

known about how agencies actually develop these rules. Professor 

West’s study will shed some light on this heretofore unexamined 

area of the rulemaking process. 

At this time, I would like to extend, on behalf of the Subcommittee, our thanks to the Congressional Research Service for 

funding this very much needed research and for its role, as particularly exemplified by Mort Rosenberg and Curtis Copeland, in coordinating this and other research endeavors for the project. As 

Professor Magill will later explain, the need for empirical research 

is not being met. This gap only emphasizes the need to reactivate 

ACUS. 

I now turn to my colleague, Mr. Watt, the distinguished Ranking 

Member of the Subcommittee, and ask him if he has any opening 

remarks. 

[The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

The current federal regulatory process faces many significant challenges. Just last 

week, the Subcommittee on Commercial and Administrative Law conducted a hearVerDate 0ct 09 2002 14:31 Oct 10, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6621 G:\WORK\COMM\072506\28907.000 HJUD1 PsN: 28907
3

ing on legislation aimed at addressing various loopholes and recurrent inefficiencies 

involving the Regulatory Flexibility Act of 1980. As this hearing revealed, these 

shortcomings in the regulatory process translate into real costs that are borne by 

every American. 

Other problematic issues that have arisen over the years in the area of administrative law and procedure include the absence of transparency at certain stages of 

the rulemaking process, the increasing incidence of agencies publishing final rules 

without having them first promulgated on a proposed basis, the stultification of certain aspects of the rulemaking process, and the need for more consistent enforcement by agencies. 

Given the fact that the Administrative Procedure Act was enacted more than 60 

years ago, a fundamental question that arises is whether the Act is still effective 

in the 21st Century. 

To help us answer that question, House Judiciary Committee Chairman Sensenbrenner—with the active support of Ranking Member Conyers—last year asked our 

Subcommittee to spearhead the Administrative Law, Process and Procedure Project. 

With the objective of conducting a nonpartisan, academically credible analysis, the 

Project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested areas for further research to be considered by the hopefully soon-to-be reactivated Administrative Conference of the 

United States. 

As many of you know, ACUS was an independent agency that served as a think 

tank and made numerous recommendations that improved the efficiency, adequacy, 

and fairness of the procedure used by agencies to carry out administrative programs. We’re particularly pleased that Professor Breger, who previously served six 

years as the Chairman of ACUS, is here to share his views on the state of the APA 

especially in light of his experience with ACUS. 

Today’s hearing is one of a series of programs and hearings that our Subcommittee has conducted as part of this Project. In addition to the Regulatory Flexibility Act, the Subcommittee conducted a hearing on the Congressional Review Act 

as well as a hearing on the Project itself. 

The Subcommittee has also cosponsored two symposia as part of the Project. The 

first symposium, held last December, focused on federal e-government initiatives. 

This program, chaired by Professor Coglianese (pronounced ‘‘Co-lone-niece’’), examined the Executive Branch’s efforts to implement e-rulemaking across the federal 

government. Professor Coglianese will provide a summary of that symposium for us 

today as well as an update on subsequent developments especially with respect to 

the government-wide Federal Docket Management System. 

The Subcommittee’s second symposium examined the role of science in the rulemaking process. Issues considered at that program included OMB’s recent initiatives dealing with regulatory science and the role of science advisory panels. 

A further symposium is planned for September 11, 2006, which will examine such 

issues as the respective roles that the executive and legislative branches play in the 

rulemaking process. 

As part of the Project, several studies are also being conducted. One of these studies, which another of our witnesses—Professor Bill West—will discuss today, examines how agencies develop proposed rules. 

While the APA generally requires agencies to involve the public in the rulemaking 

process by publishing notices of proposed rulemaking to which the public can submit 

comments, critical decisions regarding proposed rules are often made in the months 

and perhaps even years before rules are published. Surprisingly, little is known 

about how agencies actually develop these rules. Professor West’s study will shed 

some light on this heretofore unexamined area of the rulemaking process. 

At this time I would like to extend—on behalf of the Subcommittee—our thanks 

to the Congressional Research Service for funding this very much needed research 

and for its role, as particularly exemplified by Mort Rosenberg and Curtis Copeland, 

in coordinating this and other research endeavors for the Project. As Professor 

Magill will later explain, the need for empirical research is not being met. This gap 

only emphasizes the need to reactivate ACUS.

Mr. WATT. Thank you, Mr. Chairman. 

I thank the Chairman for convening this hearing and for the 

very important and strong and committed leadership role that he 

has played in taking the charge of our Chairman, Mr. Sensenbrenner, and the Ranking Member, seriously and studying this 

area. 

4

Today, as he has indicated, we will hear from noted scholars on 

various aspects of the Administrative Procedure Act. APA is as important now as it was when it was first enacted in 1946. From Administration to Administration, whether Democratic or Republican, 

the role of the administrative agencies in our political system cannot be underestimated. 

Although recently new entities have emerged to compete for the 

title of fourth branch of Government, such as the media, lobbyists 

and corporate interests, of course, there is no doubt that our administrative agencies continue to exercise power officially reserved 

for the first three branches, or power not defined by the Constitution at all. 

The Administrative Procedure Act is a necessary tool to ensure 

that the power conferred upon the agencies is not abused and that 

it is exercised efficiently and fairly. Our rapidly changing technological landscape requires that we look to see whether the APA requires modernization to ensure that fairness and efficiency remain 

viable. 

So I look forward to hearing from the witnesses about the various developments in the area of administrative rulemaking and 

the regulatory process, with an eye toward improving and strengthening the process. 

My staff person has just reminded me that if the APA is 60 years 

old, it is a baby-boomer. So we need to be researching our own 

roles. Maybe we have two baby-boomers here, trying to figure out 

what to do about another baby-boomer. So everybody is studying 

age and growing old. It is time that we do it on the APA. 

Thank you. I yield back. 

Mr. CANNON. I thank the gentleman. 

Without objection, the gentleman’s statement will be placed in 

the record. Hearing no objection, so ordered. 

Without objection, all Members may place their statements on 

the record at this point. Hearing no objection, so ordered. 

Without objection, the Chair will be authorized to declare recesses of the hearing at any point. Hearing no objection, so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. Hearing no objection, so ordered. 

Some of the witnesses have asked for additional time to submit 

more formal statements. We appreciate your willingness to be here, 

and in a couple of cases on relatively short notice, and so I ask 

unanimous consent that the witnesses be allowed 5 days within 

which to submit more formal statements. Hearing no objection, so 

ordered. 

At this point, I would like to submit on unanimous consent a 

statement from the Federal Administrative Law Judges Conference 

for inclusion in the record. Hearing no objection, so ordered. 

[The material referred to follows:]

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Mr. CANNON. I am now pleased to introduce the witnesses for today’s hearing. 

Our first witness is Dr. Bill West of the Bush School of Government and Public Service at Texas A&M University. A 1971 graduate of the United States Military Academy, Dr. West earned his 

Ph.D in political science at Rice University. Currently, he teaches 

public policy administration at the Bush School. He also serves as 

the school’s director of the Master in Public Service and Administration program. Dr. West has authored two books and published 

numerous articles. 

Our next witness is Marshall Breger, who is a professor of law 

at the Columbus School of Law at the Catholic University of America and was my chief of staff Matt Iandoli’s professor while he studied at Catholic. 

Professor Breger has had a diverse career. From 1993 to 1995, 

he was a senior fellow at The Heritage Foundation. During the 

prior Bush administration, he served as solicitor of labor, the chief 

lawyer for the Labor Department. In 1992, he served concurrently 

by presidential designation as the acting assistant secretary for 

labor management standards. 

As I alluded to earlier, Professor Breger was the chairman of 

ACUS from 1985 to 1991. For 2 years during that period, he served 

as an alternate delegate of the United States to the United Nations 

Human Rights Commission in Geneva. 

A prolific writer and editor, Professor Breger is vice president of 

the Jurispolicy Center, a Jewish conservative think-tank. Professor 

Breger obtained his undergraduate and master’s degrees from the 

University of Pennsylvania. He received his law degree magna cum 

laude from the University of Pennsylvania, where he was an editor 

of the law review and a member of the Order of the Coif. 

Our third witness is Professor Elizabeth Magill of the University 

of Virginia Law School, where she teaches, not surprisingly, 

courses on administrative law, as well as on food and drug law and 

constitutional structure. 

Upon obtaining her undergraduate degree from Yale College, 

Professor Magill served as a senior legislative assistant for North 

Dakota Senator Kent Conrad. Thereafter, she obtained a law degree from the University of Virginia School of Law. After graduating from law school, Professor Magill clerked for the Honorable 

J. Harvey Wilkinson of the Fourth Circuit Court of Appeals, and 

then for Justice Ruth Bader Ginsburg. Like her fellow panelists, 

Professor Magill has also published extensively. 

Our final witness is Professor Cary Coglianese. As I noted in my 

opening remarks, Professor Coglianese was the moderator of the 

Subcommittee’s symposium on e-rulemaking, which was held in 

this very room last December. 

Welcome back. 

Professor Coglianese is the Edward B. Shils professor of law and 

professor of political science at the University of Pennsylvania Law 

School. Prior to joining the University of Pennsylvania, Professor 

Coglianese spent 12 years on the faculty of the John F. Kennedy 

School of Government at Harvard. While there, he served as the 

faculty chair in the school’s Regulatory Policy Program and director 

of its Politics Research Group. 

46

Professor Coglianese received his undergraduate degree from Albertson College. He then went on to the University of Michigan, 

where he received his law degree and master’s degree in public policy, as well as a doctorate in political science. 

I extend to each of you my warm regards and appreciation for 

your willingness to participate in today’s hearing. 

In light of the fact that your written statements will be included 

in the record, you may not want to limit your comments to 5 minutes. We will have time for questions, and you can certainly volunteer things during the Q&A. I don’t think we are going to have a 

great deal of competition from other Members of the Committee 

here. 

You do have a lighting system in front of you. After 4 minutes, 

it turns from green to yellow. It is my habit to tap just with a pencil or something to draw your attention to the fact that we are getting to that point. It is not a big deal today, given the fact that we 

are not overwhelmed with folks that want to ask questions. 

After you have presented your remarks, we will go in order, if 

others arrive, of arrival, to ask questions. Pursuant to the direction 

of the Chairman of the Judiciary Committee, I ask the witnesses 

to please stand and raise your right hand to take the oath. 

[Witnesses sworn.] 

The record should reflect that the witnesses all answered in the 

affirmative. 

You may be seated. 

Professor West, would you please proceed with your testimony? 

TESTIMONY OF PROFESSOR WILLIAM WEST, THE BUSH 

SCHOOL OF GOVERNMENT AND PUBLIC SERVICE, TEXAS 

A&M UNIVERSITY, COLLEGE STATION, TX 

Mr. WEST. I am Bill West from The Bush School of Government 

and Public Service at Texas A&M University. Thank you for inviting me to testify in commemoration of the 60th anniversary of the 

APA. 

My testimony today will focus primarily on parts of a recent exploratory study of how agencies develop proposed rules. The study 

was conducted by a team of seven Bush School students that I supervised and that was supported by the Congressional Research 

Service. Curtis Copeland and Mort Rosenberg of CRS provided invaluable support and guidance for the project. 

I might also note that Caitlyn Miller, who is the student leader 

of the project, is here today. 

Mr. CANNON. Could I interrupt and ask who Ms. Miller is? Could 

we have her raise her hand? 

Welcome. Nice to have you here today. 

Pardon me for the interruption. 

Mr. WEST. That is fine. 

The 60th anniversary of the APA is a good occasion to consider 

its effects and its limitations. An especially important, if neglected 

topic, is that part of the rulemaking process that takes place before 

the APA’s requirements come to bear. Notice and comment is intended to ensure that rulemaking is transparent and accessible to 

all relevant stakeholders. Yet although these procedures are unVerDate 0ct 09 2002 14:31 Oct 10, 2006 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 G:\WORK\COMM\072506\28907.000 HJUD1 PsN: 28907
47

doubtedly salutary, it is also true that they come to bear at a relatively late stage in the decision-making process. 

The part of the rulemaking process that precedes the publication 

of notice frequently lasts for several years and almost always results in a specific and thoroughly justified policy proposal. It is 

where the most critical decisions often occur. If public notice and 

comment is intended to promote inclusive and transparent participation in decision-making therefore, how inclusive and transparent 

is participation in proposal development? 

As a starting point, one thing that our study finds is that prenotice participation is common and that it takes place through a 

variety of mechanisms. Although participants vary a great deal 

from one agency to the next, and indeed from one rule to the next, 

they can include representatives of industry and other affected interests, public interest groups and other agencies. OMB and other 

entities within the executive office of the president are also sometimes involved. 

Unlike notice and comment under the APA, however, participation in the development of proposed rules usually does not occur by 

general invitation. Rather, it is informal and occurs at the specific 

invitation of the agency or at the initiative of the participant. The 

primary exception to this is when agencies solicit comments from 

all interested parties through an advance notice of proposed rulemaking. Although agencies’ use of advanced notice varies, it is 

never routine or even frequent. It is probably employed significantly less than 5 percent of the time across the Federal bureaucracy. 

Participation during the pre-notice phase of rulemaking thus is 

not subject to the same institutional guarantees of inclusiveness 

that the APA provides during the comment phase. Whether this is 

a problem, much less a problem that Congress should address, suggests a number of more specific questions. 

For example, how effective are agencies in gathering input from 

all relevant stakeholders during proposal development? If they are 

not effective, do the APA’s notice and comment requirement serve 

as a check on earlier imbalances in participation? Would the benefits of institutional reforms that might increase inclusiveness in 

proposal development outweigh their costs in terms of administrative efficiency? 

Our examination of pre-notice rulemaking also addresses the 

question of transparency. Although the APA is silent on the subject, there has been an expectation since the 1970’s that agencies 

base their rules on a record. Although they generally docket communications outside the executive branch that occur after the publication of notice, however, there is wide variation across agencies 

in pre-notice docketing practices. Some indicate that they record all 

communications with non-executive actors throughout this phase. 

Others indicate that they do not require any pre-notice docketing. 

In between these two extremes there is variation in the types of 

communications placed on the public record and in the stage of the 

proposal development process at which docketing begins. As with 

inclusiveness, the policy issues surrounding transparency are complex. 

48

1 James Blumstein, ‘‘Presidential Administration and Administrative Law: Regulatory Review 

by the Executive Office of the President: An Overview and Policy Analysis of Current Issues,’’

Duke Law Journal 51 (2001). 

If on-the-record communications promote openness in decisionmaking, for example, they may also impede the collection of needed 

information. As in the legislative process, moreover, on-the-record 

communications may be inimical to the bargaining and compromise 

required for the accommodation of affected interests. 

Some officials we interviewed for our study also indicated that 

off-the-record communications with other agencies and OMB were 

important for coordination among administrative programs. Indeed, 

any effort by Congress to require docketing within the executive 

branch would necessarily have to consider the court’s sympathy for 

a unified executive in recent decades. 

I should hasten to emphasize that our study was designed to 

identify key issues, rather than to resolve them. In these and many 

other respects, gaining a better understanding of the administrative process is an essential foundation for sound institutional policy. 

Again, I am grateful for the opportunity that you and CRS have 

given to us to explore one broad dimension of rulemaking, and I applaud other recent initiatives to shed more light on topics such as 

e-rulemaking and the role of advisory committees in administrative 

decision-making. 

As an extension of these last observations, let me close by stressing the need to devote more resources to policy and legal analysis 

in the administrative process. For years, the Administrative Conference of the United States produced objective studies by first-rate 

scholars that were of considerable practical, as well as academic 

value. 

I am happy that ACUS has been reauthorized, and I would like 

to join those who have argued that it should be re-funded as well. 

This would produce substantial benefit for relatively little cost. 

Thank you. 

[The prepared statement of Mr. West follows:]

PREPARED STATEMENT OF PROFESSOR WILLIAM WEST

I am Bill West from the Bush School of Government and Public Service at Texas 

A&M University. Thank you for inviting me to testify in commemoration of the 60th 

anniversary of the Administrative Procedure Act. I am honored to be here. 

My testimony today will focus primarily on the results of a recent study of how 

agencies develop proposed rules. The study was conducted by a team of seven Bush 

School students that I supervised and that was supported by the Congressional Research Service. Curtis Copeland and Mort Rosenberg of CRS provided invaluable 

support and guidance for the project. I am also grateful to Daniel Mulhollan, Angela 

Evans, and Kent Ronhovde for their initiatives in establishing a relationship between CRS and the Bush School. Our study of rulemaking is one of several worthwhile projects that CRS has sponsored at the Bush School and other schools of public affairs. 

The Administrative Procedure Act is a venerable statute that has served the nation well. As many have remarked, however, American administrative law was a 

comparatively new field at the time the APA was enacted and the so-called bureaucratic state was still in its relative infancy. New procedural constraints on agency 

discretion have been added as the bureaucracy has grown and as new issues of legitimacy and accountability have arisen. Mechanisms for direct oversight of administrative policy making have been added as well. The most important development in 

this latter regard has been the institutionalization of regulatory review in the Executive Office of the President that has occurred over the past three decades.1 The 

49

2William F. West, ‘‘Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making,’’ Public Administration Review 64: 66–80 (February 2004). 3 Ibid. Also see Steven J. Balla, ‘‘Administrative Procedures and Political Control of the Bureaucracy,’’ American Political Science Review 92: 663–673 (1998). Marissa Martino Golden, ‘‘Interest Groups in the Rulemaking Process: Who Participates? Who Gets Heard?’’ Journal of Public Administration Research and Theory 8: 245–70 (1998). Cornelius M. Kerwin, Rulemaking: 

How Government Agencies Write Law and Make Policy, 2d. ed. (Washington, D.C.: Congressional 

Quarterly Press, 2003). Susan Webb Yackee, ‘‘Sweet-Talking the Fourth Branch: Assessing the 

Influence of Interest Group Comments on Federal Agency Rulemaking,’’ Journal of Public Administration Research and Theory 26: 103–24 (2006). 4West, supra note 1. These observations were also confirmed in some of the interviews conducted for the study described in this testimony. 

various controls that shape the administrative process have been added largely in 

a piecemeal fashion and perhaps without sufficient consideration of how they all fit 

together. 

In any case, the 60th anniversary of the APA is an appropriate occasion to consider its effects and its possible limitations. With regard to rulemaking, one might 

examine the effects of public comment on agency decisions or the impact of judicial 

review (or the threat thereof) as the meaning of the ‘‘arbitrary-or-capricious’’ standard has evolved. Or one might examine the relationship between the APA’s objectives, on the one hand, and centralized executive oversight of rulemaking on the 

other. Scholars have, in fact, given a good deal of attention to these and other important topics relating to formal, institutional constraints on agencies’ exercise of 

legislative discretion. 

At the same time, scholars have practically ignored the informal processes that 

precede the APA’s notice-and-comment requirements and most other controls on 

rulemaking. This, despite the fact that the most important policy decisions in rulemaking are arguably made as proposals are being developed. I have noted elsewhere 

that the notices of proposed rulemaking that appear in the Federal Register are 

usually very specific. Further, they often take years to develop and reflect a substantial investment of agency resources. Important proposals are sometimes accompanied by book-length documents that lay out their legal and empirical premises. 

Suffice to say that agency officials usually feel that they are on firm ground before 

they invite public comment, and that the most critical issues in terms of defining 

problems and eliminating alternative solutions to those problems have at least tentatively been resolved.2

This is not to deny the importance of notice and comment. Several recent studies 

have found that agencies do sometimes alter proposed rules in ways that are consistent with the comments they receive.3 As a matter of perspective, however, it is 

difficult for agencies to change proposed rules in fundamental ways. An obvious disincentive is sunk organizational costs. Intertwined with this is the fact that the demands of due process may compel agencies to invite additional comments in response to substantial changes, thus lengthening an already protracted process.4 An 

irony of rulemaking procedures is that the effort to ensure the viability of public 

comment by requiring agencies to base their decisions on a record (as the courts 

have generally done since the 1970s and has Congress has done in some enabling 

legislation) creates an incentive for agencies to develop proposals that will not need 

to be changed. 

With these observations as a point of departure, the project that we conducted for 

CRS examines how agencies develop proposed rules. It relies primarily on agency 

documents, on an electronic questionnaire sent to agency staff involved in the development of a large sample of individual rules, and on telephone interviews with highlevel agency careerists with extensive experience in the rulemaking process. As an 

exploratory study, it addressed three general sets of issues as a way of identifying 

questions for further research: how are rulemaking initiatives placed on agencies’

agendas: how is the rulemaking process managed within and across agencies; and 

what is the character of outside participation in the development of proposed rules. 

The last of these questions may be especially relevant to the Congress as it considers possible amendments to the APA. 

The goals of the APA offer a frame of reference for evaluating participation in proposal development. The Act sought to provide some uniformity across agencies (at 

least regulatory agencies) as they carried out their quasi-judicial and quasi-legislative responsibilities. By the same token, it sought to ensure a degree of due process 

that was appropriate for each of these functions. In the case of rulemaking, the ‘‘informal’’ or ‘‘notice-and-comment’’ procedures set forth in section 553 were designed 

to promote a certain level of rationality as well as transparency and inclusiveness 

in administrative policy making. The requirements that agencies publish a notice 

50

5The Administrative Procedure Act: A Legislative History (Washington, D.C.: U.S. Government 

Printing Office, 1946) Senate Doc. 248, 79th Cong., 2d. Sess. 6 Colin S. Diver, ‘‘Policymaking Paradigms in Administrative Law,’’ Harvard Law Review 95: 

393–434 (1981). 7 Richard B. Stewart, ‘‘The Reformation of American Administrative Law,’’ Harvard Law Review 88: 1667–1814 (1975). 

in the Federal Register and solicit comments from any and all interested parties 

were designed to promote these latter, democratic values.5

As many have noted, developments in administrative law over the past three-anda-half decades have been intended to reinforce these goals. The most important has 

been the requirement that agencies based their rules primarily on a record. This 

has resulted in part from provisions in some enabling statutes that supersede the 

APA and in part from judicial (re)interpretation of the APA’s ‘‘arbitrary or capricious’’ standard of review. Although the courts have backed off from the precedents 

of the 1970s in some respects, the ‘‘hard-look’’ doctrine of review is hardly dead— especially if one compares current practices with those that existed during the first 

two-and-a-half decades after the APA’s passage. Whether instituted by Congress or 

the courts, the extension of more rigorous due process to rulemaking has been motivated in part by the desire to ensure that bureaucracy consider all legitimate comments in arriving at policy decisions.6 This goal became popular as the result of the 

allegation that agencies were ‘‘captured’’ by special interests.7

If many of the most important decisions are made before notice appears in the 

Federal Register, however, what of the participation that occurs as agencies are developing proposals? How inclusive and transparent is that process? As with most of 

the other issues we examined in our study, there are no simple answers here. This 

is largely because agency practices are so diverse with regard to most of the key 

dimensions of proposal development. Although we had hoped that the data from our 

electronic survey would allow us to make systematic comparisons of such variation 

across agencies and policy areas, a low response rate prevented this. Still, our interviews and survey data allow for some important observations that suggest further 

study and that may ultimately be relevant for institutional reform. Indeed, the observation that such variation exists may be significant in and of itself given the relative standardization of practices within the comment phase of rulemaking. 

One thing that we found is that outside participation in proposal development is 

common. Although it does not always occur, it does occur frequently. Not surprisingly, in fact, a number of the officials we interviewed noted that gathering information from people outside of the agency was frequently indispensable to intelligent 

decision making. Although participants vary a great deal from agency to agency and 

from one rule to the next, they can include representatives of industry and other 

affected interests, public interest groups, and other agencies. The latter might become involved in order to resolve jurisdictional issues or coordinate across programs 

or to represent the interests of their constituents. 

OMB’s Office of Information and Regulatory Affairs can also be an important participant in proposal development. Although its level of involvement varies a good 

deal from one agency to the next, some officials characterized OIRA as the ‘‘800-

pound gorilla.’’ Its informal role in policy formulation is undergirded by the formal 

powers it enjoys at a later stage to return for reconsideration proposed rules that 

are not properly justified or that are inconsistent with the president’s agenda. In 

contrast, there was a near consensus among those we interviewed that, although 

specific statutory requirements were a very important source of rulemaking initiatives in some agencies, the extent and impact of congressional involvement in the 

development of proposed rules tended to be quite limited. 

Beyond the observation that it occurs and that it can involve various actors, we 

found that the character of participation varies considerably. The timing of input 

is one important dimension of variation. Some officials indicated that their agencies 

communicate with extra-governmental actors throughout proposal development 

while others indicated that their policy is to terminate communications at an intermediate stage of the process. Among the latter, the most common termination point 

is after the agency has collected general views about the nature of the problem 

being addressed and possible solutions to that problem and before it begins to articulate and support a specific policy proposal. The mechanisms of participation also 

vary a great deal. They range from informal conversations at trade conferences or 

over the telephone to e-mails and letters to hearings to advisory committees, among 

various other possibilities. Some agencies even use focus groups on occasion. 

A generalization that one can offer about participation in proposal development, 

however, is that—unlike notice-and-comment under the APA—it does not usually 

occur by general invitation. Rather, it occurs either at the specific invitation of the 

51

agency or at the initiative of the participant. The primary exception to this generalization is when agencies solicit comment from all interested parties through an advanced notice of proposed rulemaking. Yet although the use of ANPRMs varies from 

one agency to the next, they are never used on a routine or even a frequent basis. 

Although we did not gather precise data, it appears as if they are employed significantly less than five percent of the time across all rulemaking. 

Our interviewees offered several explanations for their reluctance to use advance 

notices more often. One was that ANPRMs were an additional source of delay in 

a process that was already slowed by numerous procedural hurdles. This disincentive was sometimes reinforced by pressures from Congress and elsewhere to issue 

rules in a timely fashion. Another explanation was that advanced notices did not 

produce any useful information beyond what the agency could obtain by contacting 

stakeholders individually. Not surprisingly, virtually all of the officials we interviewed indicated that they made assiduous efforts to gather all relevant perspectives, and many expressed confidence that they usually knew who were affected by 

their rules. In addition, several officials noted that, because it did not occur in response to a specific proposal, comment pursuant to advance notices was too 

unfocused to be of much value. Two of the senior people we interviewed noted that 

their agencies’ use of ANPRMs had declined in recent years as the result of these 

factors. 

In brief, then, although critical policy decisions are at least tentatively made during proposal development, participation during that phase of rulemaking is not subject to the same institutional guarantees of inclusiveness that the APA provides during the comment phase of rulemaking. Whether or not this is a problem, much less 

a problem that Congress should seek to address is a complex issue that involves a 

variety of considerations. One obvious question is whether agencies are effective in 

gathering input from all relevant stakeholders during proposal development (or 

whether participation and influence tends to be confined to the ‘‘usual suspects’’). 

To the extent participation during proposal development is not inclusive, another 

important set of questions have to do with whether the APA’s notice and comment 

requirements redress participatory imbalances during proposal development. Are 

agencies willing to make substantial changes in proposed rules? Given the resources 

required for effective comment, moreover, the formal opportunity to offer feedback 

on proposed rules may have little practical effect in enfranchising those who have 

not had access to agency decision makers during proposal development. Finally, 

even if Congress could promote inclusiveness through institutional constraints on 

proposal development, the potential benefits of such a reform must also be weighed 

against its costs in terms of administrative efficiency and effectiveness. The officials 

we interviewed were unanimous in their opinion that requiring advanced notices for 

all or certain classes of rulemaking would impose undue delay on decision making. 

Our study also addressed the related issue of transparency in proposal development. Again, although the APA is silent on the subject, there has been an expectation since the 1970s that agencies base their rules on a record. Given this, almost 

all of the officials we interviewed indicated that they made available to the public 

all communications with actors outside of the Executive Branch (including legislators and legislative staff) that occurred after a notice appeared in the Federal Register. In contrast, there was wide variation in pre-notice docketing practices. A highlevel official in the general counsel’s office of one department indicated that his 

agency’s policy was that practically all communications with non-executive actors 

must be recorded. In contrast, another official indicated that his agency did not feel 

a need to docket any pre-notice communications. In between these two extremes, 

some interviewees said that their agencies did not docket early communications designed to collect general information about problems but became more conscious of 

the need to docket communications at the later stages of proposal development. Others indicated that they tended only to docket communications that were material 

to their proposed rules. 

Such wide variation in docketing practices may be attributable in part to the current ambiguity of judicial precedent in this area over the past thirty years. It is also 

undoubtedly attributable to agency culture and tradition, as well to the preferences 

key officials. One senior careerist with a good deal of influence over administrative 

procedures within his department indicated that he favored strict docketing requirements on policy as opposed to legal grounds. Given that most pre-notice participation occurred at the specific invitation of agency officials, he felt that recording such 

communications was desirable as a way of avoiding perceptions of bias in the process. 

As with inclusiveness, the prescriptive issues surrounding transparency are complex and invite further research. If off-the-record communications obviously detract 

from the openness (and thus perhaps the legitimacy) of proposal development, they 

52

8 Elena Kagan, ‘‘Presidential Administration,’’ Harvard Law Review 114 (2001). 9For a recent discussion see William F. West, ‘‘The Institutionalization of Regulatory Review: 

Organizational Stability and Responsive Competence at OIRA,’’ Presidential Studies Quarterly

35 (March 2005). 

may also be desirable in terms of administrative efficiency and effectiveness. Although the officials we interviewed were not as consistent in their opposition to 

docketing requirements as they were to advanced notices, a number of them indicated that ex parte conversations facilitated the kind of information gathering required for rulemaking. As in the legislative process, moreover, on-the-record communications may be inimical to the bargaining and compromise required for the accommodation of competing interests. Although agency officials involved in rulemaking 

typically describe it as a ‘‘technical’’ process of ascertaining legislative intent and 

making sound factual determinations, there is little doubt that it is also frequently 

a political process that requires ‘‘partisan mutual adjustment’’ among competing interests. (It usually requires only a little prodding in interviews to bring this out.) 

Some officials also indicated that off-the-record communications with other agencies and OMB were important for coordination and management among administrative programs. Indeed, any effort by Congress to require the docketing of communications within the Executive Branch would necessarily have to consider the legal 

implications of such a policy. This observation is underscored by the Supreme 

Court’s sympathy in recent decades for a ‘‘unified executive’’ as a means of 

rationalizing policy implementation across the federal bureaucracy.8 Yet while managerial prerogatives within the executive are certainly an important consideration, 

it is also true that other agencies, OMB, and the White House sometimes act as conduits for private interests in their efforts to influence rulemaking. This is well-documented in the case of OIRA, for example.9 To some extent, therefore, docketing requirements for non-governmental actors but not for members of the Executive 

Branch might have the potential to produce a misleading appearance of transparency. 

All of this is to say that the development of proposed rules deserves much more 

attention than it has received. It is the proverbial black box; the part of the iceberg 

that lies under the water. Again, our study was an exploratory effort designed to 

identify some the key parameters of variation in the process and to identify important questions rather than to answer them. That was true of our consideration of 

agenda setting and the management of proposal development as well. 

In the case of agenda setting, for example, we found that whereas some agencies’ rulemaking consisted primarily or exclusively of discretionary initiatives that derived from various sources (agency staff research, feedback from enforcement officials, suggestions from affected groups, etc.) other agencies’ agendas were dominated 

by non-discretionary (legislatively required) rules. Still other agencies combined the 

two in various proportions. A systematic, cross-agency study of where ideas for rules 

come from and of why some ideas become rules and others do not can add a good 

deal to our understanding of how government works. An examination of agenda setting might also have prescriptive value. In the case of one agency, for example, although non-discretionary rules comprised a minority of its total workload, the fact 

that they took precedence nonetheless made it difficult to plan and execute a coherent agenda for all rulemaking. The official with whom we spoke felt that more effective communication with Congress could help alleviate this problem. 

The management of proposal development is also a fertile area for further investigation. For example, we found that some agencies have highly detailed, formalized 

procedures whereas others have no written policies to guide the process. The degree 

to which key decisions in the formulation of proposed rules is centralized at the departmental level also varies a good deal. To observe that such variation exists naturally suggests the questions of why it exists and what difference it makes in terms 

of agency performance. 

There are many other important dimensions of proposal development that have 

received little if any attention. For example, what are the forms and roles of advisory committees and to what extent do these bodies provide effective representation 

for stakeholders? Another important set of questions concerns whether and how 

rulemaking is coordinated across agencies. The list could go on. 

This is not to say that studying proposal development is easy. Evaluative and prescriptive analysis is complicated at the conceptual level by the fact that we expect 

different qualities in the rulemaking process. Given its legislative nature, we naturally want it to reflect the democratic values of openness and balanced responsiveness. Given its administrative nature, we also want it to be carried out in as timely 

and efficient a manner as possible. A third criterion, which might labeled ‘‘substantive rationality,’’ is the expectation that rulemaking decisions be objective and 

53

based on rigorous empirical evidence. All of these criteria are legitimate bases for 

assessing proposal development (and rulemaking more generally). As might be evident from the preceding discussion, however, they all potentially conflict with one 

another in critical ways. 

Data collection presents another, more practical challenge to the study of proposal 

development. Because of its extreme diversity, studies that focus on one or a few 

cases are of limited value in developing generalizations. Conversely, gathering process-related data for a large sample of rules can be a daunting task. As we found, 

for example, efforts to accomplish this goal through surveys of agency personnel face 

several obstacles, not the least of which is the inherent reluctance of bureaucracy 

to share information. Indeed, two agencies ordered their staff not to comply with 

our survey despite (or perhaps because of) a cover letter indicating that it was being 

conducted under the auspices of CRS and the Judiciary Committee. Even the senior 

officials we interviewed, all of whom were extremely helpful, were sometimes unable 

to share internal documents describing the rulemaking process. 

Still, the research needs to be done. Gaining a better understanding of the administrative process is an essential foundation for sound institutional policy. Again, I 

am grateful for the opportunity that you and CRS have given us to explore one 

broad dimension of rulemaking and I also applaud other recent initiatives to shed 

more light on topics such as e-rulemaking and the use of advisory committees. 

As an editorial observation, let me close by stressing the need to devote more resources to policy and legal analysis in these and other areas of the administrative 

process. For years, the Administrative Conference of the United States produced 

studies by first-rate scholars that were of considerable practical as well as academic 

value. Because it was clearly non-partisan and free of organizational ties that might 

otherwise bias its analysis, ACUS enjoyed the kind of access to agencies that is necessary for studying many of the most important issues in the administrative process. I am happy that ACUS has been re-authorized, and I would like to join the 

more distinguished individuals who have argued that it should be funded as well. 

This would produce substantial benefit for relatively little cost. 

Thank you.

Mr. CANNON. Thank you. We will use that last statement when 

it comes to get it re-funded. 

Professor Breger, you are recognized for 5 minutes. 

TESTIMONY OF PROFESSOR MARSHALL BREGER, THE CATHOLIC UNIVERSITY OF AMERICA-COLUMBUS SCHOOL OF LAW, 

WASHINGTON, DC 

Mr. BREGER. Thank you. My name is Marshall Breger. I teach 

at the Columbus School of Law at The Catholic University of America. I am pleased to join you today in this discussion of the future 

of the Administrative Procedure Act. 

If I may just follow along with Congressman Watt’s comments, 

the Administrative Procedure Act may be 60, but I think like many 

baby-boomers, it is not ready for retirement, rather for reviving, retuning, and hopefully a new lease on life. 

Having said that, the APA has served us well for the last 60 

years, but we have to remember we are today in a different time 

and a different place. In 1946, over 90 percent, and I could get you 

the exact numbers, but over 90 percent of the activities of administrative agencies were adjudications. Now, it has flipped. It is mostly rulemaking. 

In 1946, we came out of the New Deal with great enthusiasm, 

belief in the power of the regulatory process to address political, 

economic, and social problems. Today, we are more realistic, if not 

more skeptical. Indeed, we have a kind of default position for market solutions and the regulatory process has to prove itself in every 

instance. But being skeptical about regulation does not mean that 

you should be uninterested in the regulatory process. In fact, it 

means you need to think more hardly, more seriously, and have 

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more empirical research about regulation, what works, what 

doesn’t work, and what works better. So I am very pleased that 

this Committee is beginning to address that issue. 

I am going to speak about a number of issues in rulemaking, 

which I believe is the gravamen of this hearing, that I think are 

important to consider in thinking about revisions of the APA. First, 

informal rulemaking. You know that the notice and comment rulemaking process has been called by Kenneth Davis the greatest invention of Government in the 20th century. No doubt, it swept the 

board and changed the nature of the administrative process. 

However, we have seen in the last 60 years growing accretion of 

requirements for what is supposed to be informal, from the judiciary, growing accretions of requirements from Congress in mandates, and from the White House OIRA process, making informal 

more formal. 

We have had the growth of non-statutory informal rulemaking 

techniques, interim rulemaking, direct final rulemaking, advance 

notice of proposed rulemaking. And we have had the increasing 

tendency for agencies to bypass the ‘‘informal’’notice-and-comment 

process using interpretive rules and other forms of guidance to 

avoid what they call the ‘‘ossification’’ of the rulemaking process. 

Now, we certainly don’t want ossification. What we have to think 

of now, is the time to begin to institutionalize and codify some of 

these non-statutory techniques and to consider how to pattern interpretive and guidance documents to make sure that they provide 

the proper transparency and public participation that the Administrative Procedure Act stands for. 

Secondly, we have seen and we will see a growth in cooperative 

regulation, EPA, OSHA, VPP program, EPA Brownfields program, 

where there is an individuated interaction between the regulated 

entity and the regulator. It is trying to find flexible individual solutions. This is good. This is terrific, but it leaves us a challenge. 

How to have flexibility and at the same time neutrality, fairness 

and the rule of law? The rulemaking process has to think about 

that. 

Similarly, we have to think about public-private partnerships. 

We have had and we will have an increased growth in public-private partnerships, Government-sponsored enterprises, Government 

corporations, contracting out of what we generally think of as public functions, charter schools, private prisons. Does administrative 

law end when we start to move out of the traditional or classic public bureaucracy? That is a challenge for administrative law and for 

the APA. 

Judicial review. When the APA was passed, it instituted the notion of substantial evidence on the record as a criteria for judicial 

review. Justice Frankfurter said, Congress has set a mood for the 

judges to follow in reviewing administrative agency actions. Sixty 

years is a great deal of judicial experience. It may be appropriate 

for Congress to revisit that mood and recalibrate its notions of the 

proper relationship between judicial review of the courts and the 

agencies. 

And similarly, the whole problem of deference to agency interpretations of statutes and regulations, the Chevron case, and now the 

55

Mead and cases following, call out for some guidance from Congress on what the proper canons of construction should be. 

Finally, I think we need to be looking at State and local innovations. There is a tendency when the APA was passed, to Federal 

administrative law. That is what we study. That is what we focus 

on. There has been a really cauldron of creativity in the States, 

California, Arizona, Florida to name a few. We need studies to look 

at what they have been doing and to see how they are relevant to 

the Federal administrative process. 

Now, to complete this agenda, what we need is an institution like 

the Administrative Conference to undertake the kinds of studies 

that marry not just academic expertise, but practical experience. 

That was a peculiar genius of the conference. 

So I applaud this Committee for reauthorizing the conference, 

and I hope that it will be appropriated in this year and future 

years to continue this work and begin to solve these problems. 

I thank the Committee, and I would be happy to answer any 

questions. 

[The prepared statement of Mr. Breger follows:]

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PREPARED STATEMENT OF MARSHALL J. BREGER


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Mr. CANNON. Thank you, Professor. 

I couldn’t help thinking while you were speaking that between 

the Ranking Member and me, we at least, maybe more than average between us, spent more than half of the life of APA as lawyers. 

That is a startling concept when you think about the evolution, especially recent evolution. In your litany of these issues, I was getting more and more nervous. How do we deal with this? 

The answer, of course, is ACUS. We need to reauthorize it. We 

need to fund it. We need to get people who are smart together because even with all the scope of this Committee and its resources, 

we can’t deal with the problems that are transforming before us as 

quickly as the litany that you presented. So thank you for that. We 

will have some questions. 

Professor Magill, you are recognized for 5 minutes. 

TESTIMONY OF PROFESSOR M. ELIZABETH MAGILL, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA 

Ms. MAGILL. Thank you, Mr. Chairman. My name is Elizabeth 

Magill. I am a law professor at the University of Virginia. I teach 

and write in the fields of administrative law and constitutional law. 

I am so pleased to be asked to testify before the Subcommittee 

because, like a lot in the administrative law community, we have 

all admired the work of the Subcommittee, the leadership in seeking the reauthorization of ACUS and its passage in 2004. 

We have admired the efforts of the Subcommittee with the assistance of CRS’s American Law Division to start to identify a research agenda to address important questions of administrative 

process and funding projects like Professor West’s and the project 

Professor Freeman testified about last fall and the fall of 2004. We 

are so excited about what is happening, and it is such a pleasure 

as a result of that to be asked to testify. 

This hearing recalls the adoption of the APA and asks the question, where do we go from here? I am going to do my best in the 

last minute of my remarks to answer that question, but I have to 

say at the outset that I don’t know exactly where we go from here 

because in my opinion we don’t fully comprehend where we are 

right now. 

That is, despite the scope and the significance of the administrative state, there is not enough, as all the witnesses to date have 

said, and I bet the subsequent witness will say and this Subcommittee knows so well, there is not enough systematic and careful work that asks about the way the administrative state works, 

actually what it does, and whether it does it well. 

Nor is there enough systematic work about the various mechanisms we have and rely on to curb the exercise of agency discretion, congressional oversight, executive oversight, judicial review. 

There are lots of examples that highlight the lack of empirically 

grounded research and writing on the administrative state. 

One of my favorites that I uncovered is that there is an often repeated statistic, repeated many times, that 90 percent of agency action is informal, that is it falls below the APA requirements. It is 

not formal enough to invoke the APA requirements. I traced the origin of the statistic and the author of the statistic said, this is a 

guess. So I think the first step to studying the course for the future 

70

is the investment of resources in careful study of the most pressing 

issues that arise across a range of agencies. 

And if I might add a little bit to the pitch for why ACUS, it is 

wonderful that it is here, why it needs to be appropriated, I think 

administrative process is a little different than a lot of other questions we might want to address. And that is because administrative 

agencies do a wide variety of things in a wide variety of ways. So 

there is an enormous complexity. 

At the same time, I think most people who study them think 

there are enough similar tasks that they do, for instance, relying 

on science to make decisions, a similarity in their processes, that 

you can generalize across agencies. But that is a pretty tough task 

to produce useful answers to questions that both take account of 

the complexity that is across the administrative state, but also try 

to find generalizable lessons. 

So I think that is an added sort of argument for why we need 

funding of a think tank like ACUS. 

I think I was asked to testify because for the past several years 

I have been trying to find out exactly where we are now, which is 

what I said was I think the first step to figuring out where we go 

in the future. With a colleague at the University of Michigan, Steve 

Croley, we have been working together to try to provide a comprehensive empirical picture of Federal agency decision-making. 

Our data, our project will present pretty detailed data on the frequency and type of decisions that Federal agencies make, both 

across agencies and across time. Our goal is to explain with attention to the legal parameters of agency decision-making tools, as indepth a data as is available on the frequency, including the changing frequency over time, of agency reliance on these tools. By 

‘‘these tools,’’ I mean rulemaking, adjudication, litigation on behalf 

of agencies, and guidance. 

Our data is presented in the aggregate, how many rules do we 

have across the Federal Government and how that has changed 

over time, if it has changed over time, and it is also agency by 

agency. So our project is, as I have described, quite descriptive, but 

we also try to address various questions that are raised by the descriptive patterns we uncovered. 

We undertook this project because as students of the administrative state and teachers of administrative law, we were incredibly 

frustrated by the lack of comprehensive information about what 

agencies do, and whether it has changed over time, and if so, how. 

So our primary goal has been to supply what we think is missing, 

some certain basic comprehensive facts about agency behavior. 

We have relied on a lot of sources in the work we have been 

doing. In identifying the sources, we I think have had an ACUSlike attitude, which is our preference was for data collected across 

a large number of agencies, collected by neutral entities at regular 

intervals. So we wanted to avoid collecting data agency by agency 

because that risks inconsistency in the way a single entity characterizes what it does. 

Our sources are largely Government sources. They are OPM, the 

GAO, the Regulatory Information Service Center, OIRA at OMB, 

the GSA, the Executive Office of U.S. Attorneys, and the Administrative Office of the Courts. So the work of the project really has 

71

been collecting and presenting in meaningful and useful form data 

that is already out there. 

We are still very much in the process of writing and analyzing 

what we found. In January of 2006, we presented some preliminary 

findings, and let me give you a flavor of them. The core of the work 

is a chapter devoted to each of the major policymaking tools available to agencies, as I said, rulemaking, adjudication, Government 

litigation, and guidance. I will talk about rulemaking, adjudication 

and Government litigation very quickly, because I have 50 seconds 

left. 

So knowing how many rules are promulgated each year is actually a pretty complicated enterprise. A rule is a legal term of art. 

There are different definitions of rules, and even within definitions, 

there are different types of rules. There are two sources that provide pretty good aggregate data and those are the ones we rely on. 

Agencies together issue over about 4,000 final rules per year, an 

amount that reflects a gradual decline from the early 1980’s when 

they issued over 6,000 rules a year, and 66 percent of all final rules 

come from agencies whose heads report to cabinet secretaries, and 

10 percent come from the independent agencies. That is a decline 

from about 20 percent 2 decades ago, and the last 25 percent come 

from agencies like EPA that don’t report to cabinet secretaries, but 

to the president. 

Not all rules, though, have substantive effect. Some are ministerial. There are somewhere between, 1,000 and 1,200 rules each 

year that had a substantive effect. Among the substantive rules, 

about 500 to 700 are far-reaching enough that they trigger White 

House review. That number was closer to 500 in the 1990’s and it 

is now, since 2000, closer to 700 each year. Of those 500 to 700, 

45 to 75, depending on the year, are huge rules, for lack of a better 

term. They have an estimated annual impact on the economy of 

more than $100 million. 

I am going to skip to Government litigation because I think what 

we see there is——

Mr. CANNON. Ms. Magill, from my perspective, I am quite interested and you don’t need to worry about the time. 

Ms. MAGILL. Okay. All right. Sorry. These are red stop signs. 

Let me talk a moment, half of a minute, about adjudication. 

Tracking adjudication, as many people at this table know, in the 

Federal Government is actually quite difficult. There are two different kinds of adjudicators, there are actually more than that, but 

administrative law judges, obviously, and what have been denominated presiding officers. 

They are not administrative law judges, but they preside over 

evidentiary hearings. There is no current Government-wide collection of data on the number of adjudications performed each year. 

The vast majority of administrative law judges in the Federal Government adjudicate cases in the Social Security Administration. 

The Social Security Administration ALJs have since 1991 always 

constituted more than 72 percent of all Federal ALJs. After the Social Security Administration, the next highest employers of ALJs 

are Labor, the NLRB, and the Energy Department. 

In the aggregate from 1991 to 2004, the number of ALJs in the 

Federal Government increased by 13 percent, and that increase, of 

72

course, occurred during a period when total Government employment declined by about 15 percent. But the 13 percent increase 

was not consistent across agencies. 

Basically, Social Security Administration ALJs increased, while 

other ALJs decreased. So Social Security ALJs increased 31 percent, while non-Social Security Administration ALJs declined 37 

percent. Roughly speaking, you could say that the number of adjudicators in the Federal Government who are implementing regulatory programs, say, at the NLRB or in the Energy Department, 

declined, while the number of adjudicators adjudicating benefits in 

the Social Security Administration increased. 

There are many adjudicators in the Federal Government, however, who are not ALJs. We know this from two surveys, the first 

one conducted under the auspices of ACUS, and the first one was 

in 1989. It showed that there were several thousand presiding officers in 1989. The author found 2,600 presiding officers. That number increased to 3,300 in a follow-up survey in 2002. 

The largest users of presiding officers were in the Justice Department’s Executive Office for Immigration Review, the Veterans Administration and the IRS. That was from 2002. 

Last, Government litigation. I think it is less written about, although there are actually quite great data sources that tell you 

what is happening with Government litigation. That is one window 

onto the administrative state, observe the litigation that is brought 

on behalf of agencies, and also the defense of litigation when the 

United States defends an agency from a suit brought against it. Affirmative litigation is called U.S. plaintiff litigation in the reports, 

and U.S. defendant litigation is the defense of litigation. 

A look at these data are actually revealing on a lot of different 

fronts. The most dramatic descriptive trend, my coauthor and I 

found, was a quite significant decline in U.S. plaintiff litigation 

starting from 1990 to the present. The Administrative Office of the 

U.S. Courts reports that U.S. plaintiff litigation declined by twothirds in a 14-year period between 1990 and 2004, going from 

30,000 U.S. plaintiff cases to 10,000 in 2004. 

Another source we used was from the Justice Department which 

tracks the cases brought by United States Attorneys in U.S. Attorneys’ offices throughout the country, which is the lion’s share of 

litigation handled by the Justice Department. From 1991 to 2003, 

overall civil cases handled by the U.S. Attorneys declined by 11 

percent, but the U.S. plaintiff cases declined by 60 percent, while 

U.S. defendant cases increased 11 percent. Affirmative litigation on 

behalf of every agency that the Justice Department represents declined, except for the Interior Department. 

Kind of a whirlwind tour of statistics that we are going to 

present with more detail in our book. The goal, as I said, is to provide an accurate and systematic picture of the activities of the administrative state. Like the other witnesses, I hope this sort of 

grounded work will be a basis for moving forward, identifying the 

right questions to ask and potentially identifying solutions. 

The data obviously raise a lot of different questions. Why in the 

last 5 years are there more significant rules being forwarded to the 

White House’s OIRA for review? What accounts for the rise in presiding officers? Why is the number of regulatory ALJs declining? 

73

1 A revised version of this statement is published in the Appendix of this hearing. 

And what is happening to the work that they did? Why has U.S. 

plaintiff litigation declined so dramatically? 

So I think the real question that this Subcommittee is interested 

in is where do we go from here. My plea is we don’t quite know 

where we are, and we need to invest more resources in figuring out 

where we are and identifying the important questions, and answering them in a systematic way, not by anecdote, not by haphazardly 

gathered data, but by very careful collection of information that establishes the facts on the ground and allows us to move forward. 

Thank you very much. 

[The prepared statement of Ms. Magill follows:]

PREPARED STATEMENT OF ELIZABETH MAGILL 1

My name is Elizabeth Magill and I am a law professor at the University of Virginia School of Law. Thank you for asking me here today. 

My teaching and research are in the fields of constitutional law and administrative law. I have taught administrative law and related courses—food and drug law, 

advanced administrative law—since 1998. My academic writing in administrative 

law is about judicial review of administrative action and about the varied procedural 

choices agencies make when they implement their statutory mandates—whether, for 

instance, they adopt a legislative rule or adjudicate a case or bring an enforcement 

action in the courts. I have served as a reporter for the APA Restatement Project 

of the Administrative Law and Regulatory Practice Section of the American Bar Association. 

I am especially pleased to be asked to testify before this Subcommittee. Like many 

administrative law professors, I have admired this Subcommittee’s work on administrative process. The academics I know all cheered this Subcommittee’s leadership 

in seeking the reauthorization of the Administrative Conference of the United 

States and we hailed its passage in 2004. We have also admired the efforts of this 

Subcommittee to, with the assistance of the Congressional Research Service’s American Law Division, identify a research agenda to address important questions of administrative process and to fund several research projects. 

I. WHERE DO WE GO FROM HERE?

This hearing, which recalls the adoption of the Administrative Procedure Act sixty 

years ago, has been convened to ask what the future holds. I will do my best to answer that question in a moment, but I must note at the outset that it is not exactly 

clear where we go from here. That is because we do not fully comprehend where 

we are this moment. Despite the scope and significance of the administrative state, 

there is not enough systematic work that identifies what agencies are doing and 

asks whether they are doing it well; nor is there enough systematic work that asks 

about the effects of the mechanisms used to curb agency discretion—Congressional 

oversight, Executive and judicial review. There are many examples that highlight 

this lack of empirically-grounded research and writing on the administrative state. 

As Professor Jody Freeman pointed out in her testimony before this Subcommittee 

in 2005, an often-repeated statistic was that 80% of EPA rules were challenged in 

court; the only problem was that this had no basis in fact as one study demonstrated. Another often repeated statistic is that 90% of agency action is ‘‘informal’’—that is, it does not follow procedures specified in the APA—but, after tracing 

the origin of this statistic, I found that the author of the statistic represented it as 

a ‘‘guess.’’

In my view, the first most important step to setting a course for the future is the 

investment of resources in careful study of the most pressing issues that arise 

across a range of agencies. This Subcommittee’s leadership has started us down that 

road, and I will speak in a moment about work that advances that objective. But 

I do not have any doubt that more remains to be done. 

Careful and systematic study is not an easy task and that is one reason why there 

is not enough of it. The administrative state is incredibly complex. Agencies have 

distinctive statutory mandates—some distribute benefits, some regulate the market, 

some protect the nation. They also follow different processes and have distinctive 

designs—Commission, Administrator, Cabinet level or not Cabinet level. They adVerDate 0ct 09 2002 14:31 Oct 10, 2006 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6621 G:\WORK\COMM\072506\28907.000 HJUD1 PsN: 28907
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dress a dizzying variety of tasks in varied ways. That complexity makes systematic 

and generalizable research very difficult to conduct. 

At the same time, it is clear that administrative agencies are not so distinctive 

that one cannot generalize about their behavior and draw conclusions about what 

may trouble us about the soundness or wisdom of their activities. Of course, most 

agencies are subject the basic template provided for in the Administrative Procedure 

Act. More than that, though, many agencies share similar substantive tasks—they 

must rely on scientific judgments to do their business or they manage large benefit 

programs or they are in the business of licensing firms before they enter the market. 

Looking across agencies to determine and assess how they perform these tasks is 

obviously a worthwhile endeavor. Agencies are also subject to similar controls. They 

are the object of close oversight by Congress, the Executive, and/or the federal 

courts. Thus, despite the enormous complexity of the administrative state, there are 

common issues and problems that affect a large set of agencies such that cross-agency study will repay enormous dividends and will guide administrative reforms. 

To figure out where we go from here, then, we must invest the resources to study 

the general issues that affect a substantial number of agencies and, if warranted, 

identify problems and formulate solutions. I would emphasize that those resources 

must be put in the hands of people who will approach their study in a systematic 

way. In my view, such studies must rely on the time-tested methods of social scientific inquiry, rather than the haphazard gathering of data or, worse, anecdote. It 

is only careful study that can establish the facts of the matter and thus provide a 

sound basis for identifying problems that need to be rectified. 

There are several promising signs that such study is starting to occur. In part, 

these developments are due to the efforts and vision of the Members and staff of 

this Subcommittee and the CRS. Re-authorization of ACUS has generated enormous 

enthusiasm in the administrative law community. The studies that this Subcommittee’s efforts have spawned—Professor West’s work on public participation in rulemaking that we are hearing about today and Professor Freeman’s study of judicial 

review of administrative action—are important efforts that will advance our understanding and clarify what, if anything, is needed in the way of law reform. More 

than that, in my corner of the world, an increasing number of my peers are convinced of the need for empirical study of the administrative state and an increasing 

number of people in law teaching have the necessary training to engage in rigorous 

empirical work. 

II. ESTABLISHING AN ACCURATE PICTURE OF THE ADMINISTRATIVE STATE’S ACTIVITY

For the past several years, I have been working with a colleague to complete what 

I just testified was the most important step to take before we could identify what 

comes next—that is, we have been working on a project to find out exactly where 

we are now. My colleague is Professor Steven Croley at the University of Michigan 

Law School and we have been working together to provide a comprehensive empirical picture of federal agency decision-making. We have received several grants to 

support our work, including from the Milton and Miriam Handler Foundation and 

the Olin Foundation. Our goal, in the most general terms, is to describe what agencies do and how that has changed over time. 

Our project will present detailed data on the frequency and type of decisions that 

federal agencies make, both across agencies and across time. Our book explains the 

legal parameters of agencies’ primary decision making tools—including legislative 

rulemaking, adjudication, litigation, and agency guidance—and provides as in depth 

data as is available about the frequency, including change in frequency over time, 

of agency reliance on those tools. Our data is presented in the aggregate (how many 

rules across the federal government and how has that changed over time) as well 

as agency by agency. We also identify patterns in that data. Our project is heavily 

descriptive, but we also provide narrative explanation of why, when, and how federal agencies make decisions, and we address various normative questions implicated by our empirical findings as well. 

Professor Croley and I undertook this project because, as students of the administrative state, we were frustrated by the lack of comprehensive information about 

agency decision-making. Most administrative law scholarship focuses primarily on 

judicial review of agency decision making. While obviously important, judicial reaction to agency work product is only one window onto the activities of the administrative state. Meanwhile, political scientists and economists who write about agency 

behavior are not generally attentive to the legal differences among the agencies’ policymaking tools. As teachers of administrative law, we found no work that examined 

empirically the range and frequency of procedures agencies employ. More than that, 

no work provides a ready general source of data about the form and frequency of 

75

administrative agencies’ legal work-product. Our motivation for undertaking this 

project has been primarily to supply what is missing—certain basic, comprehensive 

facts—about agency behavior and agency decision-making. 

Our effort has several goals. Most basically, we aim to shed descriptive light on 

fundamental but understudied questions about federal agency decision-making. For 

example: Exactly how often do agencies engage in rulemaking and adjudication 

processes under APA? Which agencies do so the most, and which the least? Have 

agencies engaged in more or less rulemaking, and adjudication, over time (and adjusting for variables like population, GNP, and legislative activity)? In addition, how 

many of which different types of rules—‘‘regulatory rules,’’ ‘‘redistributive rules,’’ ‘‘governmental housekeeping rules,’’ etc.—have agencies issued over recent years? 

How many staff have agencies committed to the adjudication processes over time? 

How many times do agencies sue to enforce their statutory mandates and how, if 

at all, has that changed over time? How often are agencies sued and required to 

defend their exercises of authority and how, and if so, has that changed over time? 

A related goal of our project is to provide others with an empirical base from 

which others can draw their own conclusions about administrative government. We 

hope to inspire others to enlist the data we supply to advance their own research 

on agency behavior. Abstract discussions of administrative government should be 

grounded as much as possible in concrete facts about what agencies really do, and 

the facts we present will inform others’ work. 

Last but not least, we engage in analyses ourselves, practicing what we preach. 

That is, in addition to presenting the facts about the type and volume of agency activities, we consider how those facts might connect to perennial normative debates 

about, for example, executive versus legislative control of agencies, agency accountability and independence, and the appropriate size and role of the federal government, among others. We also explore our descriptive findings by running several 

statistical tests to evaluate hypotheses related to normative discussions of agency 

activity. For example, we investigate whether certain agency decision-making procedures increase or decrease with Republican or Democratic administrations, or in 

times of divided or undivided government, among other things. 

We have collected data from a very wide variety of sources. In identifying sources, 

we had a strong preference for data collected across a large number of agencies, and 

collected by neutral entities at regular intervals. We wished to avoid collecting data 

agency by agency because of the risks of inconsistency this raises. Our sources are 

largely available from various government sources. The data come from, for example, Office of Personnel Management, GAO, the Regulatory Information Service Center, Office of Information and Regulatory Affairs at OMB, the General Services Administration, Executive Office of the United States Attorneys, and the Administrative Office of the U.S. Courts. Much of it is available in a raw form that must be 

analyzed and aggregated to be meaningful and appropriate for generalization. Most 

of the labor of our project consists of the legwork of finding, compiling, and aggregating data across many different sources, and then organizing and presenting that 

data in meaningful ways. 

We are still in the process of producing our book. But in January of 2006, at the 

annual meeting of the American Association of Law Schools, we presented some of 

our preliminary findings. I will recount for you some of what we reported there. 

The core of the book are chapters devoted to each of the major policy making tools 

available to agencies—rulemaking, adjudication, government litigation, and guidance. Let me provide a few highlights of our findings about rulemaking, adjudication, and government litigation: 

*Rules: Knowing how many rules are promulgated each year depends on the type 

of rule as well as the classification system of the entity that collects the information. 

‘‘Rule’’ is a legal term of art and there are different definitions of rule and different 

types of rules. But, two sources, RISC and GAO, provide the most useful aggregate 

data on the number of rules issued each year. Relying one these data sources, we 

have come to the following preliminary conclusions. 

First, agencies together issue just over 4,000 final rules per year, an amount reflecting a gradual decline since the early 1980s, when they issued just over 6,000 

rules a year. Second, about 66% of all final rules come from agencies whose heads 

report to cabinet secretaries, while only about 10% percent come from the independent agencies, down from about 20% percent two decades ago. The remaining 

25% come from executive-branch agencies, like the EPA, whose heads do not report 

to cabinet secretaries but to the President. 

Considering proposed rather than final rules, the same general pattern emerges. 

Agencies now publish about 2,700 proposed rules a year, down from over 3,500 in 

the early and mid-1980s. Here, however, independent agencies publish a bigger 

share, 15–20% of proposed rules, with non-cabinet executive agencies publishing 

76

just barely more than that, and the remaining 60% then coming from cabinet agencies. 

Not all rules, however, have a substantive effect. Somewhere between 1,000 and 

1,200 rules issued each year have a substantive effect. Among substantive rules, between about 500 and 700 rules each year are far-reaching enough to trigger White 

House review. The number was closer to 500 in the late 1990s, and approximates 

700 each year since 2000. Of those, about 45 to 75 per year constitute huge rules 

with an estimated annual impact on the economy of more the $100 million. 

*Adjudication: Tracking adjudication in the federal government is difficult because there are different types of adjudicators—Administrative Law Judges (ALJs) 

and Presiding Officers (POs)—who preside over evidentiary hearings and there is 

no current governmentwide collection of data on the number of adjudications conducted each year. For one putting together an accurate empirical picture of administrative adjudication, the primary sources are OPM personnel data, two publications 

by the ACUS in the late 1970s, and two surveys of non-ALJ adjudications conducted 

in 1989 and 2002. 

The vast majority of ALJs in the federal government adjudicate cases in the Social Security Administration. SSA ALJs have, since 1991, always constituted more 

than 72% of the total ALJs in the federal government. After SSA, the next highest 

employers of ALJs are Labor, NLRB, and the Energy Department. 

In general, from 1991 through 2004, the total number of ALJs increased by 13%, 

from 1191 to 1341. This increase occurred during a period when total government 

employment declined by 15%. 

The 13% increase in the number of ALJs was not consistent across agencies. Social Security Administration ALJs increased by 31% while the number of non-SSA 

ALJs declined 37% between 1991 and 2004. In other words, the number of adjudicators who are implementing regulatory programs declined while those adjudicating 

benefits have increased. 

Many who adjudicate cases in the federal government are not ALJs. We know 

from two surveys that there are several thousand POs conducting evidentiary hearings. In a 1989 survey, the author found 2,692 POs and this number increased to 

3,370 according to a follow-up survey conducted in 2002. As of the 2002 survey, the 

largest number POs were in the Justice Department’s Executive Office for Immigration Review, the Veterans Administration, and the IRS and the largest number of 

cases decided by POs were in EOIR, the IRS, and the Appeals Council of the SSA. 

*Government Litigation: One window onto to the administrative state is to observe litigation on behalf of agencies in the courts. This includes affirmative litigation—called ‘‘US as plaintiff’’ litigation—brought by the federal government as litigation whether the government is defending against a challenge to its activities—

called ‘‘US as defendant.’’ The Administrative Office of the Courts and the Executive 

Office of U.S. Attorneys each track this litigation. 

A look at those data are revealing on a variety of fronts, but the most dramatic 

descriptive trend is the dramatic decline in ‘‘US as plaintiff’’ litigation. The Administrative Office of the Courts reports that US plaintiff litigation declined by two thirds 

in a 14 year period. In 1990, there were 30,000 US plaintiff cases and this declined 

to 10,000 in 2004. During the same period, US as defendant litigation increased dramatically, from just under 25,000 cases to nearly 40,000 cases. 

The Executive Office of the US Attorneys reports similar data, although their data 

track agency litigation more closely because US Attorneys represent client agencies 

throughout the government. From 1991 through 2003, overall civil cases handled by 

US Attorneys declined by 11%. But US plaintiff cases declined by 60% while US defendant cases increased by 11%. Affirmative litigation on behalf of every agency that 

DOJ represents declined, except the Interior Department. 

This whirlwind tour of statistics provides just a slice of the data we will present 

in our book. As you can see, our goal is to provide an accurate and systematic picture of the activities of the administrative state. It is our hope that this sort of 

grounding will be a basis for moving forward by identifying the right questions to 

ask. And the data raise many questions: Why, in the last five years, are there more 

‘‘significant’’ rules being forwarded to OIRA for review? What accounts for the rise 

in POs? Why is the number of regulatory ALJs declining? Why has US Plaintiff litigation declined so dramatically? 

III. WHERE DO WE GO FROM HERE?

So I return to the question I started with, namely, where do we go from here? 

As I said at the outset, I do not know where we go next because of the dearth of 

77

sound and careful work about where we are now. I am absolutely confident that further study is necessary to identify problems and formulate solutions. And the reauthorized ACUS gives is a real opportunity to move forward. Once funding is secured, 

many will clamor to fund various research projects. They may disagree on the priority, but few will disagree about the central need for more and more rigorous work 

about what is occurring at agencies. And there are many worthy research projects. 

In the fall of 2005, you heard testimony from Professor Jeffrey Lubbers, Mr. Mort 

Rosenberg, and Professor Jody Freeman, all suggesting possible avenues for research of a reconstituted ACUS. I have read their testimony and believe they made 

extremely valuable suggestions. I will add a few of my own to the list. My suggestions are not detailed proposals for study, but what I view to be the most important 

general areas for research. 

External Agency controls: To my mind, a central question about agency activity 

is whether and how the various oversight mechanisms that are in place for agencies 

work. Agencies are subject to control and oversight by Congress, by the Executive, 

and they are subject to judicial review by courts. To my mind, asking about the 

function and efficacy of these control mechanisms is probably the most important 

question we can be asking. Thankfully, there is work that has been and is being 

done on these areas. Professor Croley has carefully studied the White House Review 

of agency rules and Professor Freeman is now engaged in her own comprehensive 

study of judicial review of agencies. These two studies are notable for their systematic—as opposed to ad hoc-approach and they have and will teach us a lot. But we 

need to do more because these external controls on agencies are so important and 

it is a complex enterprise to assess their efficacy. In my view, we are just at the 

beginning of building an accepted base of knowledge and moving toward conclusions 

about the wisdom and efficacy of these control mechanisms. 

Internal Agency Controls: Another promising area for research is to get inside the 

agency and study how agencies make their important decisions. My own research 

has made me very interested in why it is agencies choose to implement their mandates in such different ways, some relying heavily on adjudication, others relying 

heavily on rules. But there are many other questions, for instance: When and why 

do agencies adopt enforcement guidelines? How do they organize internal appeals 

from front-line decision makers? How do they set their regulatory priorities? These 

questions about the internal decision making process of agencies are central to understanding why they behave the way they do and, as a result, are worthy of sustained attention. 

Effectiveness of Rules. Many have noted that we have no way to determine the 

effectiveness of rules after they are in place. Among other things, we presently have 

no mechanism to determine whether the projections contained in the cost-benefit 

analysis when the rule is adopted turn out to be accurate in the long-run. Answering this question may not answer questions about the overall efficacy of regulations, 

but it would be a useful question to ask and, more importantly, it is just the sort 

of analytic task that a think tank arm of government could design and conduct. A 

research program aimed at identifying the promising ways to go about assessing the 

costs and benefits after implementation and comparing them to earlier projections 

would be a worthy enterprise. 

Thank you for inviting me here today. I am gratified by the interest this Subcommittee has shown in the efficacy and fairness of administrative process.

Mr. CANNON. Thank you. I look forward to your report. 

Professor Coglianese, you are recognized for 5 minutes or whatever time you would like to take. 

TESTIMONY OF PROFESSOR CARY COGLIANESE, UNIVERSITY 

OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PA 

Mr. COGLIANESE. Thank you very much. 

Chairman Cannon, and fellow Members of the Subcommittee, I 

appreciate the invitation to testify here today. I recently joined the 

University of Pennsylvania Law School faculty, after spending 12 

years at the John F. Kennedy School of Government, where I remain a senior research fellow and continue to do work on administrative law, with a particular emphasis on empirical inquiry of the 

regulatory process. 

78

I would like to take my time today to talk about the role of information technology in the rulemaking process, and what kind of implications that has for thinking about the Administrative Procedure 

Act in the next 60 years. I would like to make three main points. 

First, information technology is here to stay. It is an important 

fixture in the administrative process. Second, empirical research on 

the effects of information technology is important for decision-makers to have available in deciding how to deploy information technology in a smart way. And third, information technology projects 

present key management challenges, some of which will demand 

congressional involvement in oversight. 

Let me take each of these in turn. First, information technology 

has become a major issue in how we think about the rulemaking 

process today, and it will only continue to be a major issue in the 

future. 

Now, that is, I think, something that is quite different than at 

least the first 50 years of the Administrative Procedure Act. During 

that time, information technology moved roughly from carbon copy 

to photocopy, but the way in which information was managed by 

regulatory agencies remained largely paper-based. People who 

wanted to find out about the rulemaking process had to come to 

Washington, physically enter a docket room to gather information. 

If they wanted to participate in the regulatory process, there might 

be an occasional public hearing held somewhere in the country that 

they might attend, but generally speaking they would participate 

by picking up the phone or, more commonly, sending in a letter. 

That has changed. It is now possible with information technology 

for people in Washington State, as well as Washington, D.C., to access information about any rule that Government agencies are developing. It is now possible for people all around the country to engage in an interactive iterative way with themselves or with Government officials over regulations, through the Internet. 

This is a process that has been encouraged, that is the process 

of employing information technology in the rulemaking process, encouraged by both the Clinton administration and the Bush administration. The Bush administration most recently has created an erulemaking initiative which has produced an online portal called 

Regulations.gov at which place any member of the public can go 

and find out about any proposed rule that is open for comment and 

comment on it. 

The e-rulemaking initiative is now also developing a Federal 

docket management system which will be a single location on the 

Internet where eventually a member of the public could go and find 

all the supporting documents for any rule across the Federal Government. These issues are, as I say, here to stay. 

The second point is that we need to understand what difference 

this information technology is actually making, what kind of effects 

it is having on the rulemaking process. Now, one of the predictions 

that is most widespread both among Government officials, as well 

as among academics, is that the Internet will create what some 

people have even called a revolution in public participation, allowing citizens to play a role in rulemaking that they have never been 

able to play before and involving them on a frequent basis in the 

regulatory process. 

79

This actually is an issue that researchers have examined quite 

extensively already. A growing body of research is developing on 

these questions. What is most surprising, perhaps given these predictions, is that the available research is showing that public participation has not increased in almost all rules due to the advent 

of the Internet. 

I say that should be surprising given the predictions, but I think 

with hindsight it probably shouldn’t be too surprising. Rulemaking, 

whether it is e-rulemaking or not, is still a fairly technical, and if 

not even arcane, area of public policymaking. So we probably 

shouldn’t be surprised that many members of the public are not 

participating on a frequent basis. 

Indeed, just as the Internet has lowered the cost to participate 

in the rulemaking process, it has also lowered the cost for members 

of the public to chat online with their friends or follow sports results or celebrity gossip or do other things that they would probably much rather do with their time. 

Now, the fact that public participation has not expanded with the 

advent of e-mail and Regulations.gov does not mean that e-rulemaking shouldn’t be pursued. There are other important purposes 

for using information technology in the regulatory process, from 

transparency, from public expectations about access to Government, from enhanced oversight by the legislature or the executive 

branch, various administrative efficiencies, and I also think a great 

deal of benefit for academic researchers. 

But for all of those purposes, empirical research will be important to figure out which kind of technologies are actually serving 

those goals, how well are they serving those goals, and how can information technology be better deployed to serve those goals. 

My third and final point is that in any information technology 

project, technology is only half the battle. Organizational and institutional factors matter a lot for the success of any information 

technology project. When we had our symposium here in December 

of 2005, a number of people expressed concerns and complaints 

about the current Federal Docket Management System, its searching capability, and the kinds of information that it holds. 

Those are concerns that the people managing the project are 

aware of. But they might be among the first to acknowledge that 

the institutional structures right now for pursuing information 

technology projects relate to rulemaking, the FDMS project in particular, are really somewhat makeshift. It is the Environmental 

Protection Agency that is actually managing a Government-wide IT 

initiative related to rulemaking. 

However much you may admire the work that the folks at EPA 

are doing, it is not clear that an individual regulatory agency 

should have the authority to be managing this project. We might 

look in the future at the model of the Office of Federal Register or 

the National Archives and Records Administration as a possible institutional way of organizing information technology projects in the 

future. 

Of course, as with efforts for empirical research and other important efforts of Government, IT projects also need adequate funding 

vehicles as well. So there is a continued role for Congress in purVerDate 0ct 09 2002 14:31 Oct 10, 2006 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6601 G:\WORK\COMM\072506\28907.000 HJUD1 PsN: 28907
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suing and overseeing information technology projects as they related to rulemaking. 

I thank the Committee for the opportunity to talk with you about 

these issues and for your interest in these issues. 

[The prepared statement of Mr. Coglianese follows:]

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PREPARED STATEMENT OF CARY COGLIANESE


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Mr. CANNON. Thank you, Professor. 

I intend to do more than one round of questioning, if that is 

agreeable to Mr. Watt. So I am going to limit myself to 5 minutes, 

and we will go back and forth, if that is interesting to you. 

I was intrigued, Professor Coglianese, by your comments about 

empirical studies. Can I ask a couple of questions of you all, four 

or five? 

How many of you have been online to look at Wikipedia or any 

other wiki? Do any of you do that? It is a fascinating experience. 

How many of you have used Google as your search engine? Okay. 

How many of you have e-mailed, or how many of you have looked 

at gmail? Okay, you are obviously the guru here. 

Are any of you members of an online community? 

Let me tell you my experience. I don’t spend a lot of time on the 

Net because my time is jerked around. But yesterday, I am too fat 

and I want to lose weight, and to do that I decided to Google ‘‘calorie counter.’’ So I ended up with a whole bunch of choices, and I went to a 

site called ‘‘sparklepeople’’ or something like that. It looked like it 

had a calorie counter, so I went to the site and couldn’t find the 

counter without joining. And I thought, what the heck, I joined the 

community, so I signed up. 

They asked for my e-mail. I was reluctant to give my real e-mail, 

and so I decided to see what Gmail is like. I don’t mean to bore 

you here, but if you are talking about being empirical, you can’t do 

empirical analysis retrospectively. You have to look at the tools 

that are available, and that is where I am sort of headed here. So 

Gmail is not e-mail. 

Let me just say, you also look at Gmail. I am not recommending 

that because that would not be a congressional thing to do, but it 

was fascinating, and I decided to sign up for the Gmail account. 

And I used that as the e-mail address, and I hope I am protected 

because you use your cell phone number, by the way, when you do 

Gmail. It is not e-mail. It is a different thing and very interesting. 

And then I became part of the community. It turns out the calorie counter was more awkward to use there than otherwise, but 

I did flip through the site to see how it worked, and it is a real 

community about people trying to use weight. 

In that environment, in the environment we are in, which is an 

environment of dramatic change, just with the difference between 

e-mail, where you communicate back and forth, and Gmail, where 

I think what they say on the Web site is archive and don’t delete. 

So, for instance, I had a very interesting conversation on texting 

from my telephone to my son’s telephone in quite a poignant point 

of our lives, and what I have on my telephone is my statement in 

the outbox and his statement in the inbox, and you can’t put them 

together, at least not with the technology that I have. 

So I have saved that, because it is sort of interesting. In fact, it 

is very interesting. I think 10 years from now he is going to be fascinated when we go back over that conversation. You can’t do that 

given the technology that is the latest technology you can get that 

I have had, but you can do it with Gmail. 

And so, when you talk about people being engaged, I am sort of 

lecturing here, but the reason I am, I really appreciated the input. 

98

This has been a remarkable hearing. When you look at the decisions we have to make, and you all are focused on those and dealing with those, it has got to be done in the context not of what Government is or what has been happening or what agencies have 

been doing or what agencies haven’t been doing, or what people are 

involved. 

Given the nature of the community, you are not going to get people, individuals normally involved with a system that has questions 

about what records are available, when you have Google that 

makes everything available. 

And so it seems to me part of what we need to do here is look 

at where we can go with people and their involvement. And you 

don’t expect a guy who is not a geophysicist to be commenting on 

a rule that relates to something technical like geophysics. But you 

can get him involved if you have a community and a discussion and 

a conclusion and a choice. 

And many times, we don’t vote on the rules. We do the things 

that make rational sense, but you can get feedback from people in 

the context of maybe we should think about this. If you have gone 

through and read and evaluated and considered the implications of 

what you are doing, how do you think Government ought to react? 

In that context, I think that we have to look back at our most 

famous and first democrat, Thomas Jefferson, who believed that 

that governs best which is closest to the people that are affected 

by it. How much Government are we going to be able to shift away 

from the Federal level and toward the local level? And by the way, 

you can multiply complexity because there are a lot more people at 

the local level than there are in Washington, D.C. 

So I am going to ask some questions in my next round. My time 

is almost up. I hope you will help as we go forward with this 

project, and you guys have been involved and we appreciate it. We 

absolutely need, the thing that has come through with great clarity 

is we need ACUS. 

ACUS is not what it was in the 1960’s. ACUS is the place where 

we can draw with resources everybody together and think about 

these issues. They are not Republican issues. They are not Democrat issues. They are issues of our time. They are issues that are 

largely created by technology and if we don’t answer them thoughtfully and with a thoughtful process, we are going to get the wrong 

kinds of answers. 

So with that, I will yield back and recognize the gentleman, the 

Ranking Member, for 5 minutes. 

Mr. WATT. Mr. Chairman, I am impressed. 

Mr. CANNON. That I didn’t ask a question? [Laughter.] 

Mr. WATT. No, with your knowledge of the technology. While you 

were exploring the technology, I was out running. [Laughter.] 

It will help you lose weight a lot faster. 

Mr. CANNON. He doesn’t need the calorie counter. I am almost 

ready to take that up. [Laughter.] 

Mr. WATT. Just a suggestion to you, in case you are looking for 

a suggestion about how to lose weight. Don’t count the calories, just 

burn them. [Laughter.] 

Anyway, having said that, Professor Breger, your last round of 

statements, or your last subject that you dealt with, was some of 

99

the creativity at the State level. I was hurriedly trying to read 

through your testimony. You gave it a sentence or two in your oral 

statement and you gave it a sentence or two in your written statement, too. 

So can you tell us a little bit more about what some of the States 

are doing in terms of creativity that we ought to be at least thinking about? 

Mr. BREGER. Thank you, Congressman. 

Arizona has, institutionalized by the State legislature, a kind of 

State OIRA process, which has some innovative features for centralized review of rulemaking, including the centralized review also 

suggesting to the agencies when they should be re-looking at existing rules or not. 

Florida has its own State APA which has dealt with interpretive 

regulations in innovative ways, also problems of waiver of regulation by agencies. California’s Administrative Procedure Act has a 

different approach toward judicial review with different levels of 

deference. 

And of course, the model State Administrative Procedure Act, 

which is a kind of model for the States, has a number of different 

approaches and solutions from the APA that are worth considering, 

including interpretative regulations among others. Those are just a 

few of the kind of creative activity that is going on in the States. 

I would be happy to enlarge on that in written testimony. 

Mr. WATT. I think that would be helpful to us, lest we have to 

go and Google what the States are doing. While my Chairman will 

be capable of doing that, I assure you I will not. [Laughter.] 

I won’t either e-mail it or Gmail it. 

Let me try to tie together what Professor Magill and Professor 

Coglianese said. Is it possible that the decline in hearings and U.S. 

litigation may be being precipitated by those limited number of 

people who are engaging in e-technology? It seems to me that one 

possibility is that e-technology is certainly enabling people who are 

interested in an issue to be a lot more involved in discussing that 

issue quickly and interactively. 

It used to be that you could only comment through the written, 

paper, slow-mail process. You got no response to that until the rule 

was actually made. Is this notion that I have that this increased 

interactive capability may be helping to sort through some of the 

disagreements that are taking place or were taking place that were 

not resolved, and maybe leading to a reduction in administrative 

procedures and/or litigation? 

Ms. MAGILL. Sure. It is an interesting idea. I guess the theory 

would be that increased participation and potential collaboration 

resolves conflicts, and therefore agencies have less need to bring 

enforcement actions or pursue violators of rules or statutory violations. That is an interesting idea. 

It is not something we had yet thought of, but we haven’t yet zeroed in on this descriptive finding. At the moment, we are very bigpicture, what has happened with rulemaking, what has happened 

with adjudication, what has happened with litigation. This descriptive trend surprised us. We presented it in January of 2006. There 

were several people from the Justice Department who were also 

surprised. 

100

So we don’t know the answer, and the best I can say is I think 

there are lots of possibilities. This is one possibility we can think 

about. We are some months away from thinking about it in a sort 

of rigorous way. What could possibly explain the reductions, and 

then try to test whether those factors do show up as causally related to the reduction, or at least correlated with the reduction. 

So it is an interesting idea, and I am sad to say I can’t yet tell 

you with confidence whether I think the data supports it. 

Mr. COGLIANESE. We don’t have any definitive research on that 

specific question, but it is highly plausible. In fact, one would expect that if members of the public can access Government information about rulemaking more easily, then their comments should be 

better informed and more helpful to the agency, right, which 

should enable the agency to make a better rule. 

And if it is easier for interested members of the public, as you 

say, those who have a connection with the rule and an understanding of the general area, if it is easier for them to participate, 

then Government may hear more from them. And that may enable 

them to anticipate problems, anticipate conflicts, and create a better rule. 

Right now, we don’t have any research that examines the extent 

to which information technology creates better rules, but we would 

hope it does. And we would hope that with increased investments 

and innovation in information technology, we could come up with 

tools that would make rules even better; that would not only avoid 

litigation, but deliver more benefits to society. 

Mr. WATT. Mr. Chairman, I know I am over my time, but since 

I am on a roll and I haven’t gotten Professor West yet, can I ask 

one more question? Well, actually one more question after that, too, 

but it is not as important. 

Mr. CANNON. Would the gentleman mind? I would like to follow 

up on the last question. Are you going to change the subject? 

Mr. WATT. No. I think I am going to extend it to the pre-comment period with Mr. West. That is what he devoted most of his 

time talking about, and his student may want to join in the conversation with us. 

I was just fascinated by how you can do this pre-comment period, 

get more interactive, especially through technology you could do it. 

But I don’t know how you would do it without having a bunch of 

Government officials just sitting there e-mailing back and forth in 

every agency. 

How would you structure this increased pre-comment notion that 

you think is desirable, that it seemed to me that you all thought 

it might be desirable, and maybe actually helpful in maybe decreasing even more the litigation, if you could get more people talking earlier in the process. But how do you structure something like 

that without just being so burdensome that it just takes up so 

much time that you can’t manage it? 

Mr. WEST. That is a great question. I don’t have a ready answer 

for it. 

You know, we wanted to see how much communication there was 

in the pre-notice phase of rulemaking, and with whom it took place 

and raise some issues. Should the pre-notice process be structured? 

That begs a number of other questions. In part, it depends on how 

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effective the comment phase of rulemaking is in redressing imbalances that occur during it. 

Mr. WATT. It has to be structured to some extent, don’t you 

think, because otherwise you don’t know who to communicate with. 

Maybe that is a good dissertation undertaking for your student. 

She is smiling, hey, maybe I can structure something pre-comment 

period. 

Mr. WEST. Well, that is a great question. 

An obvious alternative would be to require agencies to use advance notices for all rules or for certain kinds of rules, maybe rules 

that reach a certain threshold of significance. Actually, our study 

was based in large part on interviews with seasoned public servants, many of whom had been working in the area of rulemaking 

for decades. They were uniformly against that, a requirement for 

advance notice is across the board. They thought that that would 

just impede efficiency too much. 

Mr. WATT. And be burdensome. 

Mr. WEST. It would be burdensome. It would delay the process. 

Mr. WATT. It would take a lot of time. 

Mr. WEST. Sure it would, yes. It is already a protracted process 

and they felt that it would lengthen rulemaking by years, in some 

cases. 

Mr. WATT. I didn’t change the subject, I don’t think. 

Mr. BREGER. Mr. Chairman, if I can just add, when I was Solicitor of Labor, when we did Advance Notices of Proposed Rulemaking, these were for major rules. We thought through in advance questions to ask with great particularity to see what the different interest groups in the regulated community thought about 

going in different directions. We found that was very helpful. 

We also developed some roundtables trying to bring together different interest groups. I won’t call them focus groups. 

Mr. WATT. That is the same thing as a chat room? 

Mr. BREGER. But in person. That was pre-high-tech. Again, that 

was very useful in bringing to our attention problems in our thinking and therefore make the rule better. 

And finally, and of course with Professor Coglianese here, I have 

to mention negotiated rulemaking, which is another mechanism, 

where he is an expert, but another mechanism which we used at 

the Labor Department to bring out in kind of less than formal ways 

problems with a proposed rule to try to refine it and improve it in 

the rule development process. 

Thank you. 

Mr. CANNON. Neg reg, of course, was one of the great successes 

of ACUS. 

Mr. BREGER. Yes. 

Mr. CANNON. May I ask, how many students do we have who are 

associated with your project here? Do you want to raise your hand, 

those who are associated with Dr. West’s project? 

Mr. WEST. Just one. 

Mr. CANNON. One. Do you have any other students associated 

with Dr. Magill’s project? 

Okay, we are not going to put anybody on the spot here. Thanks. 

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Let me follow up on this line of reasoning, whether we call it a 

chat room or in-person kind of thing. Let me give you another experience that I had, also related to my weight. 

I have decided, since this discussion, I am going to find a keyboard that has more resistance so I am using more calories when 

I do that, but I noticed my weight was different in Utah than in 

Washington. I had the same brand of scale. I got it from Costco. 

It was very consistently different. 

So I Googled the difference in altitude and weight. I got a very 

simple answer, but that was as part of a discussion board, and 

somebody responded to that simple answer with a more complex 

answer, and then somebody who had a Ph.D in something came on 

and said no and then gave a very big answer, a very complicated 

answer. The net effect is I think it is just a consistent difference 

in my scales. 

But the reason I tell that story is because if you look at the world 

like having to do a pre-rulemaking and a notice of rulemaking or 

a negotiated rulemaking, you are dealing with what a few people 

in an agency are seeing, as opposed to what the world is seeing. 

And so maybe if you have a context for discussions, this rule is not 

working because I have a farm in Minnesota and it is a different 

situation from the people that you have regulated in other parts of 

the country. 

If you have that kind of an environment, all of a sudden you get 

the right kind of input from the right kind of people, and then 

maybe some agronomist somewhere can point out, you think your 

farm is different, but in these regards it is the same. And the guy 

says, oh, yes, you are right. And so you have compliance by a guy 

who might otherwise not comply on the low end, and therefore less 

litigation, but on the other end you have people, associations of 

people that then focus on their interest and their differences and 

the way they communicate. 

So if you look at the Internet as a way to do what we used to 

do better, it is not the same thing as saying, what do we have, 

what tools do we have available that allows us to do better what 

we ought to be doing, rather than what we have done. And so, let 

me just hope that that will ferment in your perfervid imaginations. 

Ms. Magill, may I ask you a question? You said that the 90 percent agency actions informal statistic, when did he come up with 

that guess? Do you know? 

Ms. MAGILL. It was a speech given in the middle of the 1970’s, 

published in the Administrative Law Journal. 

Mr. CANNON. We have been using that figure, that guess, for 30 

years. 

Ms. MAGILL. Professor Freeman had an example in the fall of 

2005 in her testimony that I think people relied upon. This was the 

80 percent figure, 80 percent of EPA rules are challenged in court. 

A study demonstrated that that was not true. I am not sure my 

90 percent figure has been the basis for policymaking, but it is repeated a lot. 

Mr. CANNON. It is repeated a lot, yes. 

Ms. MAGILL. It is repeated a lot. It is a difficult enterprise to 

carefully answer the question, how much agency action is informal, 

even in one agency. So maybe a guess is the best we can do. I don’t 

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think so. But to answer that question definitely would be hard, but 

again, we can do better than a guess, I think. 

Mr. CANNON. And probably the difference is going to be relevant 

and significant as we go forward. 

Ms. MAGILL. Yes. 

Mr. CANNON. Dr. West, in your prepared statement, you said two 

agencies ordered their staff not to comply with your survey, despite 

a cover letter indicating that it was being conducted under the auspices of CRS and the Judiciary Committee. 

What were the two agencies that refused to cooperate with you? 

Mr. WEST. Caitlyn, correct me if I am wrong, but I think it was 

the Internal Revenue Service and the Department of Transportation. 

Mr. CANNON. Ms. Miller, would you like to join us at the table? 

We won’t even put you under oath. We would love to have you 

here. 

Do either of you have a guess as to why those two agencies were 

uncooperative? 

This goes on your resume. You have yet to testify. You have to 

say something at some point. [Laughter.] 

Mr. WEST. The person from the IRS told us that. We assured everyone that the survey would be confidential and that it would not 

even identify specific regulations, but they were nonetheless afraid 

that that would establish a precedent that would lead to lawsuits 

or other efforts to open up, to get access to communications that 

occurred during the pre-notice phase of rulemaking. That was my 

recollection for IRS. 

I can’t remember the rationale that was given to us by the Department of Transportation. 

Ms. MILLER. We did do the survey electronically, and we got 

some e-mails. We sent out the cover letter to all of our respondents, 

and then we sent out a preliminary e-mail with the link to the survey. We got some responses back that there were policies from the 

counsel’s office in the departments that they were not to participate 

in any academic surveys. Their impression was that they were too 

busy. 

Mr. CANNON. I suspect that means we have to haul them in here 

before this Committee, right? 

Mr. WEST. I will add, though, that especially with the Department of Transportation, the other part of our study consisted of 

interviews with experienced Government officials, people from general counsel’s offices and so forth. There were several people from 

Transportation that were extremely helpful in that part of the 

project. 

Mr. CANNON. You know, there is an interesting overlay between 

what Congress can do and what our staff can do, and what an academic institution can do. I suspect that ACUS sort of helps bridge 

that gap by working together with staff. 

Do you think, Professor West, that if ACUS had been involved 

that that would have affected these agencies’ reaction? 

Mr. WEST. Well, it might have, and this is something that Curtis 

Copeland and I discussed. ACUS is obviously a nonpartisan agency 

without any apparent institutional bias. So people in the agencies 

might be more forthcoming to cooperate in research by ACUS than 

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in research occurring under the auspices of, say, a congressional 

Committee. 

Mr. CANNON. But would you indulge me for one more question? 

Dr. Breger, you headed ACUS for a period of time. In your experience, did ACUS ever work with Committee staff to get information 

that was otherwise difficult to get? 

Mr. BREGER. We worked with Committee staff in the sense that 

Committee staff often suggested projects to us. We generally had 

a good working relationship with the agencies. The reason is that 

every agency by statute was a member of ACUS. Usually, their 

chief legal officer, or their general counsel, was the member or the 

deputy general counsel in charge of regulations. So they, in a 

sense, bought into the process. 

As a result, we had a much easier time. I won’t say ‘‘easy.’’ We 

had a relatively easy time in gaining their cooperation, certainly on 

the front end of the study. One of my jobs after the plenary assembly approved a recommendation was to knock on everyone’s door 

and say, why don’t you accept it? That was not always so easy. 

Mr. CANNON. You know, you gave a litany of the problems we 

have. Everybody has suggested that there is a vast amount that we 

don’t know that is knowable, and ACUS can help us know that on 

the one hand. On the other hand, we have great opportunities to 

transform what we do, and having agencies buy in through ACUS 

makes the case very, very strongly, I think, for ACUS. 

I yield back. Do you have more questions, Mel? 

Mr. WATT. I just wanted to follow up with Professor Coglianese. 

Can you provide a little information about how EPA got to managing e-rulemaking, the whole process? And would ACUS be an alternative to that? Or what would be the logical alternatives to one 

particular agency taking the lead on something like that? 

Mr. COGLIANESE. Certainly. The president established an e-Government agenda which had 24 different projects. E-rulemaking was 

one of those projects. For each project, the Administration designated a lead agency to administer these initiatives. 

My understanding is that OMB hired a consulting firm to examine the hardware that was used by agencies that had online docket 

systems in place already, and that the consultant report identified 

the EPA as having the best hardware, which was not surprising 

since EPA was one of the most recent agencies, at that time, to 

adopt such a system. So it had the latest technology. 

EPA has since worked with a great deal of cooperation by all the 

other agencies, 100 agencies or so, that are connected in this erulemaking initiative. Many of the agencies that issue a lot of rules 

are more active in working collaboratively with EPA, but the 

project is administered by EPA. That has led to some challenges 

when it comes to funding. 

Initially, OMB was channeling funds on a pro-rata basis according to how many rules an agency issues, all coming from different 

agencies to fund this initiative. The congressional Appropriations 

Committee didn’t quite agree with that as an approach to funding 

e-Government efforts and has since called into question that practice, and now it is much more difficult to fund this project adequately because of this makeshift institutional structure. 

105

The other thing that has happened is that EPA really has no 

final say, in a sense, because it is not administering a statutory 

mandate that has vested management authority in it. So an alternative model for undertaking an e-rulemaking project like this that 

covers the entire Federal Government would probably not be 

ACUS, but something like the Office of Federal Register, which 

similarly is charged with an information management function that 

cuts across the entire Federal Government. There are standards for 

what goes into the Federal Register, what format it is in, and the 

like, and those standards apply to all agencies. 

So something like that might be the more appropriate model to 

look at creating an institution that could manage information technology projects that cut across the Government, and hopefully extend indefinitely into the future and allow for innovation as technology improves over time. 

Can I add one other comment, by the way, to your earlier point 

about chat rooms and involving the public in notice-and-comment 

rulemaking? 

Mr. WATT. I have actually never been in a chat room. 

Mr. COGLIANESE. I just wanted to note, it wasn’t in my testimony, but it is in a forthcoming article I have written that will appear in the Duke Law Journal. There have been several agencies 

that have tried chat-room, online discussions, interactive forums, 

as ways of generating information. 

There was one study by Woody Stanley, a DOT employee, where 

he looked at a project that the Federal Motor Carriers Administration had undertaken. He went to the Web site, and you could either 

join the chat room or you could file a comment. 

Interestingly enough, the people who filed the comments and 

chose that avenue tended to be the usual suspects. But people who 

entered the chat room and discussed issues tended to be truck drivers who wouldn’t ordinarily have filed comments. And through that 

interactive dialogue, Stanley reports, there were different kinds of 

issues that were presented to the agency than emerged in the comments. 

The comments focused on a lot of technical issues, costs and the 

like. The truck drivers were raising issues of practicality, of safety 

and the like, that were not emphasized as much through the formal comments. So there is some work being done by agencies to explore these interactive opportunities, and some research being done 

on what it all means. 

Mr. WATT. Your second dissertation is on structuring this e-rulemaking technology. We are giving her a lot of information today. 

Thank you, sir. I appreciate it. I yield back. 

Mr. CANNON. I have one very quick question, and then a couple 

of things for the record. 

Professor Coglianese, have you worked at all with the IEEE to 

help develop standards in this regard? They are a massive resource, and you ought to connect with them. 

In fact, let me suggest a name, Lee Hollaar, L-E-E, last name HO-L-L-A-A-R, has worked on the Hill on the Senate side. He has 

a degree in computer science and also law, and he works closely 

with the IEEE. He is on several of their Committees, and we can 

get you his phone number. He would be a great guy to talk to 

106

about this because he is smart and he has the background and he 

can connect with the folks who ought to be doing this at IEEE, and 

they ought to be part of our overall project. 

And just for the record, it is Ms. Miller, right? And what is your 

first name? 

Ms. MILLER. Caitlyn. 

Mr. CANNON. C-A-I-T-L-I-N? 

Ms. MILLER. Y-N. 

Mr. CANNON. Y-N. Okay. Great. M-I-L-L-E-R. 

Ms. MILLER. Correct. 

Mr. CANNON. Just so you know, this is the permanent record forever, and you are here with us. We thank you for being here. 

I ask unanimous consent that we keep the record open for 10 

business days, working days, for follow-up written questions. Without objection, so ordered. 

Let me just thank you all. We appreciate your expertise. It is a 

very difficult issue which is timely and very important, and we appreciate your involvement here today, but also in the broader 

project. We look forward to seeing you again soon. 

Thank you. 

We are adjourned. 

[Whereupon, at 12:59 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

REVISED PREPARED STATEMENT OF PROFESSOR M. ELIZABETH MAGILL, UNIVERSITY

OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA 

My name is Elizabeth Magill and I am a law professor at the University of Virginia School of Law. Thank you for asking me here today. 

My teaching and research are in the fields of constitutional law and administrative law. I have taught administrative law and related courses—food and drug law, 

advanced administrative law—since 1998. My academic writing in administrative 

law is about judicial review of administrative action and about the varied procedural 

choices agencies make when they implement their statutory mandates—whether, for 

instance, they adopt a legislative rule or adjudicate a case or bring an enforcement 

action in the courts. I have served as a reporter for the APA Restatement Project 

of the Administrative Law and Regulatory Practice Section of the American Bar Association. 

I am especially pleased to be asked to testify before this Subcommittee. Like many 

administrative law professors, I have admired this Subcommittee’s work on administrative process. The academics I know all cheered this Subcommittee’s leadership 

in seeking the reauthorization of the Administrative Conference of the United 

States and we hailed its passage in 2004. We have also admired the efforts of this 

Subcommittee to, with the assistance of the Congressional Research Service’s American Law Division, identify a research agenda to address important questions of administrative process and to fund several research projects. 

I. WHERE DO WE GO FROM HERE?

This hearing, which recalls the adoption of the Administrative Procedure Act sixty 

years ago, has been convened to ask what the future holds. I will do my best to answer that question in a moment, but I must note at the outset that it is not exactly 

clear where we go from here. That is because we do not fully comprehend where 

we are this moment. Despite the scope and significance of the administrative state, 

there is not enough systematic work that identifies what agencies are doing and 

asks whether they are doing it well; nor is there enough systematic work that asks 

about the effects of the mechanisms used to curb agency discretion—Congressional 

oversight, Executive and judicial review. There are many examples that highlight 

this lack of empirically-grounded research and writing on the administrative state. 

As Professor Jody Freeman pointed out in her testimony before this Subcommittee 

in 2005, an often-repeated statistic was that 80% of EPA rules were challenged in 

court; the only problem was that this had no basis in fact as one study demonstrated. Another often repeated statistic is that 90% of agency action is ‘‘informal’’—that is, it does not follow procedures specified in the APA—but, after tracing 

the origin of this statistic, I found that the author of the statistic represented it as 

a ‘‘guess.’’

The first most important step to setting a course for the future is the investment 

of resources in careful study of the most pressing issues that arise across a range 

of agencies. This Subcommittee’s leadership has started us down that road, and I 

will speak in a moment about work that advances that objective. But I do not have 

any doubt that more remains to be done. 

Careful and systematic study is not an easy task and that is one reason why there 

is not enough of it. The administrative state is incredibly complex. Agencies have 

distinctive statutory mandates—some distribute benefits, some regulate the market, 

some protect the nation. They also follow different processes and have distinctive 

designs—Commission, Administrator, Cabinet level or not Cabinet level. They adVerDate 0ct 09 2002 14:31 Oct 10, 2006 Jkt 000000 PO 00000 Frm 00111 Fmt 6601 Sfmt 6621 G:\WORK\COMM\072506\28907.000 HJUD1 PsN: 28907
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dress a dizzying variety of tasks in varied ways. That complexity makes systematic 

and generalizable research very difficult to conduct. 

At the same time, it is clear that administrative agencies are not so distinctive 

that one cannot generalize about their behavior and draw conclusions about what 

may trouble us about the soundness or wisdom of their activities. Of course, most 

agencies are subject the basic template provided for in the Administrative Procedure 

Act. More than that, though, many agencies share similar substantive tasks—they 

must rely on scientific judgments to do their business or they manage large benefit 

programs or they are in the business of licensing firms before they enter the market. 

Looking across agencies to determine and assess how they perform these tasks is 

obviously a worthwhile endeavor. Agencies are also subject to similar controls. They 

are the object of close oversight by Congress, the Executive, and/or the federal 

courts. Thus, despite the enormous complexity of the administrative state, there are 

common issues and problems that affect a large set of agencies such that cross-agency study will repay enormous dividends and will guide administrative reforms. 

To figure out where we go from here, then, we must invest the resources to study 

the general issues that affect a substantial number of agencies and, if warranted, 

identify problems and formulate solutions. I would emphasize that those resources 

must be put in the hands of people who will approach their study in a systematic 

way. In my view, such studies must rely on the time-tested methods of social scientific inquiry, rather than the haphazard gathering of data or, worse, anecdote. It 

is only careful study that can establish the facts of the matter and thus provide a 

sound basis for identifying problems that need to be rectified. 

There are several promising signs that such study is starting to occur. In part, 

these developments are due to the efforts and vision of the Members and staff of 

this Subcommittee and the CRS. Re-authorization of ACUS has generated enormous 

enthusiasm in the administrative law community. The studies that this Subcommittee’s efforts have spawned—Professor West’s work on public participation in rulemaking that we are hearing about today and Professor Freeman’s study of judicial 

review of administrative action—are important efforts that will advance our understanding and clarify what, if anything, is needed in the way of law reform. More 

than that, in my corner of the world, an increasing number of my peers are convinced of the need for empirical study of the administrative state and an increasing 

number of people in law teaching have the necessary training to engage in rigorous 

empirical work. 

II. ESTABLISHING AN ACCURATE PICTURE OF THE ADMINISTRATIVE STATE’S ACTIVITY

For the past several years, I have been working with a colleague to complete what 

I just testified was the most important step to take before we could identify what 

comes next—that is, we have been working on a project to find out exactly where 

we are now. My colleague is Professor Steven Croley at the University of Michigan 

Law School and we have been working together to provide a comprehensive empirical picture of federal agency decision-making. We have received several grants to 

support our work, including from the Milton and Miriam Handler Foundation and 

the Olin Foundation. Our goal, in the most general terms, is to describe what agencies do and how that has changed over time. 

Our project will present detailed data on the frequency and type of decisions that 

federal agencies make, both across agencies and across time. Our book explains the 

legal parameters of agencies’ primary decision making tools—including legislative 

rulemaking, adjudication, litigation, and agency guidance—and provides as in depth 

data as is available about the frequency, including change in frequency over time, 

of agency reliance on those tools. Our data is presented in the aggregate (how many 

rules across the federal government and how has that changed over time) as well 

as agency by agency. We also identify patterns in that data. Our project is heavily 

descriptive, but we also provide narrative explanation of why, when, and how federal agencies make decisions, and we plan to address various normative questions 

implicated by our empirical findings as well. 

Professor Croley and I undertook this project because, as students of the administrative state, we were frustrated by the lack of comprehensive information about 

agency decision-making. Most administrative law scholarship focuses primarily on 

judicial review of agency decision making. While obviously important, judicial reaction to agency work product is only one window onto the activities of the administrative state. Meanwhile, political scientists and economists who write about agency 

behavior are not generally attentive to the legal differences among the agencies’ policymaking tools. As teachers of administrative law, we found no work that examined 

empirically the range and frequency of procedures agencies employ. More than that, 

no work provides a ready general source of data about the form and frequency of 

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administrative agencies’ legal work-product. Our motivation for undertaking this 

project has been primarily to supply what is missing—certain basic, comprehensive 

facts—about agency behavior and agency decision-making. 

Our effort has several goals. Most basically, we aim to shed descriptive light on 

fundamental but understudied questions about federal agency decision-making. For 

example: Exactly how often do agencies engage in rulemaking and adjudication 

processes under APA? Which agencies do so the most, and which the least? Have 

agencies engaged in more or less rulemaking, and adjudication, over time (and adjusting for variables like population, GNP, and legislative activity)? In addition, how 

many of which different types of rules—‘‘regulatory rules,’’ ‘‘redistributive rules,’’ ‘‘governmental housekeeping rules,’’ etc.—have agencies issued over recent years? 

How many staff have agencies committed to the adjudication processes over time? 

How many times do agencies sue to enforce their statutory mandates and how, if 

at all, has that changed over time? How often are agencies sued and required to 

defend their exercises of authority and how, and if so, has that changed over time? 

A related goal of our project is to provide others with an empirical base from 

which others can draw their own conclusions about administrative government. We 

hope to inspire others to enlist the data we supply to advance their own research 

on agency behavior. Abstract discussions of administrative government should be 

grounded as much as possible in concrete facts about what agencies really do, and 

the facts we present will inform others’ work. 

Last but not least, we engage in analyses ourselves, practicing what we preach. 

That is, in addition to presenting the facts about the type and volume of agency activities, we consider how those facts might connect to perennial normative debates 

about, for example, executive versus legislative control of agencies, agency accountability and independence, and the appropriate size and role of the federal government, among others. We also explore our descriptive findings by running several 

statistical tests to evaluate hypotheses related to normative discussions of agency 

activity. For example, we investigate whether certain agency decision-making procedures increase or decrease with Republican or Democratic administrations, or in 

times of divided or undivided government, among other things. 

We have collected data from a very wide variety of sources. In identifying sources, 

we had a strong preference for data collected across a large number of agencies, and 

collected by neutral entities at regular intervals. We wished to avoid collecting data 

agency by agency because of the risks of inconsistency this raises. Our sources are 

largely available from various government sources. The data come from, for example, Office of Personnel Management, GAO, the Regulatory Information Service Center, Office of Information and Regulatory Affairs at OMB, the General Services Administration, Executive Office of the United States Attorneys, and the Administrative Office of the U.S. Courts. Much of it is available in a raw form that must be 

analyzed and aggregated to be meaningful and appropriate for generalization. Most 

of the labor of our project consists of the legwork of finding, compiling, and aggregating data across many different sources, and then organizing and presenting that 

data in meaningful ways. 

We are still in the process of producing our book. But in January of 2006, at the 

annual meeting of the American Association of Law Schools, we presented some of 

our preliminary findings. I will recount for you some of what we reported there. 

The core of the book are chapters devoted to each of the major policy making tools 

available to agencies—rulemaking, adjudication, government litigation, and guidance. Let me provide a few highlights of our findings about rulemaking, adjudication, and government litigation: 

*Rules: Knowing how many rules are promulgated each year depends on the type 

of rule as well as the classification system of the entity that collects the information. 

‘‘Rule’’ is a legal term of art and there are different definitions of rule and different 

types of rules. But, two sources, RISC and GAO, provide the most useful aggregate 

data on the number of rules issued each year. Relying one these data sources, we 

have come to the following preliminary conclusions. 

First, agencies together issue just over 4,000 final rules per year, an amount reflecting a gradual decline since the early 1980s, when they issued just over 6,000 

rules a year. Second, about 66% of all final rules come from agencies whose heads 

report to cabinet secretaries, while only about 10% percent come from the independent agencies, down from about 20% percent two decades ago. The remaining 

25% come from executive-branch agencies, like the EPA, whose heads do not report 

to cabinet secretaries but to the President. 

Considering proposed rather than final rules, the same general pattern emerges. 

Agencies now publish about 2,700 proposed rules a year, down from over 3,500 in 

the early and mid-1980s. Here, however, independent agencies publish a bigger 

share, 15–20% of proposed rules, with non-cabinet executive agencies publishing 

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just barely more than that, and the remaining 60% then coming from cabinet agencies. 

Not all rules, however, have a substantive effect. Somewhere between 1,000 and 

1,200 rules issued each year have a substantive effect. Among substantive rules, between about 500 and 700 rules each year are far-reaching enough to trigger White 

House review. The number was closer to 500 in the late 1990s, and approximates 

700 each year since 2000. Of those, about 45 to 75 per year constitute huge rules 

with an estimated annual impact on the economy of more the $100 million. 

*Adjudication: Tracking adjudication in the federal government is difficult because there are different types of adjudicators—Administrative Law Judges (ALJs) 

and Presiding Officers (POs)—who preside over evidentiary hearings and there is 

no current governmentwide collection of data on the number of adjudications conducted each year. For one putting together an accurate empirical picture of administrative adjudication, the primary sources are OPM personnel data, two publications 

by the ACUS in the late 1970s, and two surveys of non-ALJ adjudications conducted 

in 1989 and 2002. 

The vast majority of ALJs in the federal government adjudicate cases in the Social Security Administration. SSA ALJs have, since 1991, always constituted more 

than 72% of the total ALJs in the federal government. After SSA, the next highest 

employers of ALJs are Labor, NLRB, and the Energy Department. 

In the aggregate, from 1991 through 2004, the total number of ALJs increased 

by 13%, from 1191 to 1341. This increase occurred during a period when total government employment declined by 15%. 

But the 13% increase in the number of ALJs was not consistent across agencies. 

Social Security Administration ALJs increased by 31% while the number of non-SSA 

ALJs declined 37% between 1991 and 2004. In other words, the number of adjudicators who are implementing regulatory programs declined while those adjudicating 

benefits have increased. 

Many who adjudicate cases in the federal government are not ALJs. We know 

from two surveys that there are several thousand POs conducting evidentiary hearings. In a 1989 survey, the author found 2,692 POs and this number increased to 

3,370 according to a follow-up survey conducted in 2002. As of the 2002 survey, the 

largest number POs were in the Justice Department’s Executive Office for Immigration Review, the Veterans Administration, and the IRS and the largest number of 

cases decided by POs were in EOIR, the IRS, and the Appeals Council of the SSA. 

*Government Litigation: One window onto to the administrative state is to observe litigation on behalf of agencies in the courts. This includes affirmative litigation—called ‘‘US as plaintiff’’ litigation—brought by the federal government as well 

as litigation where the government is defending against a challenge to its activities—called ‘‘US as defendant.’’ The Administrative Office of the Courts and the Executive Office of U.S. Attorneys each track this litigation. 

A look at those data are revealing on a variety of fronts, but the most dramatic 

descriptive trend is the dramatic decline in ‘‘US as plaintiff’’ litigation. The Administrative Office of the Courts reports that US plaintiff litigation declined by two thirds 

in a 14 year period. In 1990, there were 30,000 US plaintiff cases and this declined 

to 10,000 in 2004. During the same period, US as defendant litigation increased dramatically, from just under 25,000 cases to nearly 40,000 cases. 

The Executive Office of the US Attorneys reports similar data, although their data 

track agency litigation more precisely because the reports categorize litigation based 

on the client agency that US Attorneys are representing. From 1991 through 2003, 

overall civil cases handled by US Attorneys declined by 11%. But US plaintiff cases 

declined by 60% while US defendant cases increased by 11%. Affirmative litigation 

on behalf of every agency that DOJ represents declined, except the Interior Department. 

This whirlwind tour of statistics provides just a slice of the data we will present 

in our book. As you can see, our goal is to provide an accurate and systematic picture of the activities of the administrative state. It is our hope that this sort of 

grounding will be a basis for moving forward by identifying the right questions to 

ask. And the data raise many questions: Why, in the last five years, are there more 

‘‘significant’’ rules being forwarded to OIRA for review? What accounts for the rise 

in POs? Why is the number of regulatory ALJs declining? Why has US Plaintiff litigation declined so dramatically? 

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III. WHERE DO WE GO FROM HERE?

So I return to the question I started with, namely, where do we go from here? 

As I said at the outset, I do not know where we go next because of the dearth of 

sound and careful work about where we are now. I am absolutely confident that further study is necessary to identify problems and formulate solutions. And the reauthorized ACUS provides an opportunity to move forward. Once funding is secured, 

many will clamor to fund various research projects. They may disagree on the priority, but few will disagree about the central need for more and more rigorous work 

about what is occurring at agencies. And there are many worthy research projects. 

In the fall of 2005, you heard testimony from Professor Jeffrey Lubbers, Mr. Mort 

Rosenberg, and Professor Jody Freeman, all suggesting possible avenues for research of a reconstituted ACUS. I have read their testimony and believe they made 

extremely valuable suggestions. I will add a few of my own to the list. My suggestions are not detailed proposals for study, but what I view to be the most important 

general areas for research. 

External Agency controls: To my mind, a central question about agency activity 

is whether and how the various oversight mechanisms that are in place for agencies 

work. Agencies are subject to control and oversight by Congress, by the Executive, 

and they are subject to judicial review by courts. Asking about the function and efficacy of these control mechanisms is probably the most important question we can 

be asking. Thankfully, there is work that has been and is being done on these areas. 

Professor Croley has carefully studied the White House Review of agency rules and 

Professor Freeman is now engaged in her own comprehensive study of judicial review of agencies. These two studies are notable for their systematic—as opposed to 

ad hoc-approach and they have and will teach us a lot. But we need to do more because these external controls on agencies are so important and it is a complex enterprise to assess their efficacy. In my view, we are just at the beginning of building 

an accepted base of knowledge and moving toward conclusions about the wisdom 

and efficacy of these control mechanisms. 

Internal Agency Controls: Another promising area for research is to get inside the 

agency and study how agencies make their important decisions. My own research 

has made me very interested in why it is agencies choose to implement their mandates in such different ways, some relying heavily on adjudication, others relying 

heavily on rules. But there are many other questions, for instance: When and why 

do agencies adopt enforcement guidelines? How do they organize internal appeals 

from front-line decision makers? How do they set their regulatory priorities? These 

questions about the internal decision making process of agencies are central to understanding why they behave the way they do and, as a result, are worthy of sustained attention. 

Effectiveness of Rules. Many have noted that we have no way to determine the 

effectiveness of rules after they are in place. Among other things, we presently have 

no mechanism to determine whether the projections contained in the cost-benefit 

analysis when the rule is adopted turn out to be accurate in the long-run. Answering this question may not answer questions about the overall efficacy of regulations, 

but it would be a useful question to ask and, more importantly, it is just the sort 

of analytic task that a think tank arm of government could design and conduct. A 

research program aimed at identifying the promising ways to go about assessing the 

costs and benefits after implementation and comparing them to earlier projections 

would be a worthy enterprise. 

Thank you for inviting me here today. I am gratified by the interest this Subcommittee has shown in the efficacy and fairness of administrative process.

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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR WILLIAM WEST, THE

BUSH SCHOOL OF GOVERNMENT AND PUBLIC SERVICE, TEXAS A&M UNIVERSITY, 

COLLEGE STATION, TX


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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR MARSHALL BREGER, THE

CATHOLIC UNIVERSITY OF AMERICA—COLUMBUS SCHOOL OF LAW, WASHINGTON, DC


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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR M. ELIZABETH MAGILL, 

UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA


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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR CARY COGLIANESE, 

UNIVERSITY OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PA


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