Handmaidens of the legislature? Understanding regulatory timing

Abstract

When does legislation trigger regulation? The US Congress regularly passes laws that authorise government agencies to write legally binding regulations. Yet, when this occurs, agencies may take years to act – or, at times – may never act at all. We theorise that the breadth of the congressional statutory delegation drives the timing of agency policy production. In particular, when Congress expressly tells an agency to promulgate a rule, we expect agencies to do so quickly. Yet, when Congress provides greater policymaking discretion to agencies, we expect other factors – and especially, internal agency considerations – to drive regulatory timing. We use data from almost 350 statutes spanning four decades, which are then matched up with thousands of regulations, to assess the argument. Using innovative methods, we find support for our hypotheses. Overall, we produce a deeper understanding of the link between delegation and discretion: suggesting when it occurs, as well as, importantly, why.

Rule Significance and Interbranch Competition in Rulemaking Processes

“…These are pronounced and even stronger than under Model P, given the mean of the dependent variable under these thresholds. Likewise, the coefficient of the AGI of Model CP is statistically significant under the thresholds of 1, 1.25, 1.50, 1.75, and 2, with the average 30 If we include an indicator for agency-Congresses which lead up to and encompass a presidential election to account for the pace of agency rulemaking at the end of a presidential term (Haeder and Yackee 2022), or an alternative indicator for political time for presidential reelection, our primary results are not altered. While previous studies tend to find the effect of divided government is negative and statistically significant, we uncover more systematic evidence for this effect only with very low-significance thresholds under Model CP.…”

“…Page Count is the count of pages used by the first NPRM, direct final rule, or interim final rule published in the Federal Register for each RIN 10 . Assuming texts with the force of law which are cited more often in scholarly research are more likely to be substantively important (see Haeder and Yackee 2022; Yackee and Yackee 2016), we include Legal Citations , which captures the number of times an RIN is cited as visible in Hein Online’s Law Journal Library search 11…”

“…Page count, as well as UA abstract word count, has been used by other scholars as a complexity measure (Haeder and Yackee 2022; Potter 2019; Yackee and Yackee 2016), and we acknowledge that this variable is correlated with regulatory complexity. Agencies anticipate public objections by writing longer background/justification texts for a more significant rule before the legal text of a proposed rule.…”

“… 25 Idiosyncratic characteristics of individual agencies may include regular demand for regulation and accumulated workload (uneconomical to measure for 55 agencies) (see Haeder and Yackee 2022; Yackee and Yackee 2016), or the scope of an agency’s mission (Acs and Cameron 2013). As Potter and Shipan (2019) argue, their use of this model is more appropriate than a negative binomial model with fixed effects in this context.…”

Handmaidens of the legislature? Understanding regulatory timing

“…We assess the argument by focusing on the dynamic empirical relationship between the policymaking authority centred in the legislative branch and the policymaking actions of the executive branch. More specifically, we use a large dataset that spans four decades (Haeder and Yackee 2021), which links the legislature’s demand for regulation to the bureaucracy’s supply of regulation. In doing so, we assess the article’s three hypotheses regarding agency policy responsiveness.…”