Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement.
This Article is the first to chronicle the statutory rise of regulatory monitors and to situate them empirically at the core of modern administrative power. Since the Civil War, often in response to crises, the largest federal regulators have steadily accrued authority to collect documents remotely and enter private space without any suspicion of wrongdoing. Those exercising this monitoring authority within agencies administer the law at least as much as the groups that are the focus of legal scholarship: enforcement lawyers, administrative law judges, and rule writers. Regulatory monitors wield sanctions, influence rulemaking, and create quasi-common law. Moreover, they offer a better fit than lawyers for the modern era of “collaborative governance” and corporate compliance departments, because their principal function — information collection — is less adversarial. Yet unlike lawsuits and rulemaking, monitoring-based decisions are largely unobservable by the public, often unreviewable by courts, and explicitly excluded by the Administrative Procedure Act (APA). The regulatory monitor function can thus be more easily ramped up or deconstructed by the President, interest groups, and agency directors. A better understanding of regulatory monitors — and their relationship with regulatory lawyers — is vital to designing democratic accountability not only during times of political transition, but as long as they remain a central pillar of the administrative state.'The Trouble with Counting: Cutting through the Rhetoric of Red Tape Cutting' by Jodi L Short in (2018) 103(1) Minnesota Law Review comments
With the issuance of Executive Order 13,771, which requires agencies to repeal two regulations for every one they propose, regulation counting has become a cornerstone of deregulatory policy in the Trump Administration. This article situates the “2-for-1” Order in a larger intellectual project that has long sought to demonstrate that the sheer quantity of regulations is causally related to declines in macroeconomic outcomes like U.S. employment and competitiveness. Regulation counting studies have provided political momentum for deregulatory policies like 2-for-1, and they will undoubtedly be used in the administration’s attempts to rationalize those policies and agency decisions made pursuant to them on judicial review. This article seeks to forestall such attempts by demonstrating that regulation counting studies do not, and cannot, rationalize deregulatory policies like EO 13,771 because they are, themselves, irrational and empirically unsound. It also explores the implications of the turn to regulation counting for the broader dialogue on regulatory reform. I argue that regulation counting starkly illustrates the limits of both cost-benefit analysis and progressive new governance regulatory reforms.