abstract. Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every two rules they can repeal.
This Article explores the positive determinants and normative implications of regulatory bundling and unbundling. The empirical analysis reveals that agencies have been increasingly engaging in regulatory bundling for the last two decades. More generally, bundling behavior varies widely across different administrative agencies, and agencies appear to include more subjects in their final—as opposed to proposed—rules. These findings, in turn, raise significant normative concerns that could be addressed through a suite of tools novel to the administrative state: single-subject rules, line-item vetoes, and innovative uses of more traditional doctrines of judicial review. Whether some of these tools should be adopted, however, requires further empirical assessment of regulatory bundling’s causes and consequences.
authors. Professor and Ronald H. Coase Teaching Scholar, University of Chicago Law School; Associate Professor of Law and Jia Jonathan Zhu and Ruyin Ruby Ye Sesquicentennial Fellow, Cornell Law School, respectively. Many thanks to Bruce Ackerman, Zach Clopton, Sean Farhang, Lee Fennell, Michael Gilbert, Tom Ginsburg, Emily Hammond, Aziz Huq, Ronald Levin, Anne O’Connell, Justin Pidot, Ricky Revesz, Susan Rose-Ackerman, Kyle Rozema, and David Zaring for helpful comments and conversations. Thanks also to participants in the New Frontiers in the Empirical Study of Agency Policymaking Conference at University of Wisconsin–Madison; the Political Economy and Public Law Conference at Cornell Law School; the Conference on Empirical Legal Studies at Michigan Law School; the AALS session on New Voices in Administrative Law; the Yale Law Journal Contemporary Issues in Legal Scholarship Workshop; and faculty workshops at Chicago-Kent College of Law, Cornell Law School, University of Chicago Law School, and University of Colorado Law School. Julia Bradley, Colleen Guo, Christine Liu, Nathaniel Ludewig, Eileen Prescott, and Paul Rogerson provided superb research assistance.
The original dataset used in this Article is preserved in eYLS, Yale Law School’s data repository, under an embargo until March 31, 2021. The dataset will be available at digitalcommons.law.yale.edu/ylj.