NCPA - National Center for Policy Analysis

Rushed Regulation Reform

January 20, 2012

The "interim final rules" of both the Obama administration (regarding the Affordable Care Act, or ACA) and the Bush administration (regarding the first regulations in the Department of Homeland Security, or DHS) sidestepped analytical prudence and short-circuited legally mandated procedures.  In both cases, government agencies rushed analysis required by Executive Order No. 12866 in order to justify government decisions that all appearances suggest were already made long before the analysis justified them.  Assessing these rushed regulations on three criteria makes clear the inadequate consideration that each received, say Christopher J. Conover of Duke University and Jerry Ellig of the Mercatus Center at George Mason University.

  • Openness: how accessible, clear and well-documented is the analysis?
  • Analysis: how well does the analysis identify the desired outcomes, systemic problem, alternatives, costs and benefits?
  • Use: to what extent did the agency claim to use the analysis or make provisions for retrospective analysis of the regulation?

On these criteria, both Obama's ACA and Bush's DHS regulations fall far below standards, even when compared with 2008 and 2009 regulations written by the same department.

Furthermore, the amount of time that each regulation was analyzed by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) is indicative of the rushed nature of each batch of regulations.

  • The interim final health care regulations received rapid review at OIRA, averaging just five days.
  • The DHS rules received somewhat longer review, averaging 22 days.
  • By comparison, OIRA took an average of 27 days to review proposed economically significant regulations in 2009 and 56 days in 2008.

Source: Christopher J. Conover and Jerry Ellig, "Rushed Regulation Reform," Mercatus Center, January 2012.

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