Strategic avoidance and rulemaking procedures

Peter Bils, Robert J. Carroll and Lawrence S. Rothenberg
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Peter Bils: Departments of Political Science and Economics, 5718Vanderbilt University, Nashville, TN, USA
Robert J. Carroll: Department of Political Science, 14589University of Illinois at Urbana-Champaign, Urbana, IL, USA
Lawrence S. Rothenberg: Department of Political Science, 6927University of Rochester Rochester, NY, USA

Journal of Theoretical Politics, 2024, vol. 36, issue 2, 156-185

Abstract: Informal, ‘notice-and-comment’, rulemaking is the prototypical mechanism employed by US regulators. However, agencies frequently claim their actions exempt from the process, and courts typically agree. Agencies thus face an important strategic choice between informal rulemaking and avoidance. To study this choice, we analyze a model of rulemaking with exemption and empirically analyze agency avoidance. Our model implies that more biased agencies engage in less avoidance, as they face more skepticism from the courts and, thus, require support from group comments to have their rules upheld. Empirically, we find support for this prediction. As for policy implications, we show it is more beneficial to allow exemptions when the agency is more biased.

Keywords: Administrative Procedures Act; agency oversight; bureaucratic policymaking; good cause exemption; notice-and-comment rulemaking (search for similar items in EconPapers)
Date: 2024
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Persistent link: https://EconPapers.repec.org/RePEc:sae:jothpo:v:36:y:2024:i:2:p:156-185

DOI: 10.1177/09516298241237209

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