Regulatory Analysis in the United States: Underlying Tensions and Contested Legitimacy

Over the past thirty years, every U.S. president, from both political parties, has supported regulatory analysis of major agency regulations by the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management & Budget (OMB). Although there have been relatively minor revisions of the presidential Executive Orders mandating such regulatory review over the years, the central thrust of the Executive Orders has remained relatively constant. Notwithstanding this apparent bipartisan support of regulatory analysis, the role of regulatory analysis has been controversial because of the legal status of the Executive Orders which are subsidiary to the organic statutes under which agencies regulate. Many of those regulatory statutes do not permit consideration of the types of economic factors evaluated in regulatory analysis, creating an inherent tension that has spawned much of the controversy about regulatory analysis in the United States. This paper traces the history of regulatory analysis in the U.S. from 1980 to the present, and evaluates the tension between regulatory analysis and organic statutes that has limited the effectiveness of, and increased the controversy over, regulatory analysis.