August 2, 2006 -- Each year federal agencies like the Environmental Protection Agency or the Food and Drug Administration make thousands of decisions that affect Americans. But little comprehensive data is collected about their practices. U.Va. law professor Elizabeth Magill testified before the House Subcommittee on Commercial and Administrative Law July 25 on the need for more empirical analysis of administrative agencies’ actions. She and other scholars hope to reinstate the Administrative Conference of the United States, a government think tank that sponsored data-driven studies on agency activities but lost its funding in the 1990s.

“Agencies' mandates include the most important activities of government—protecting the environment, providing transparency in the securities market, distributing government benefits—but the lack of data makes studying them difficult,” Magill said. “Which agencies produce the most number of rules, and how has that changed over time? How often do agencies appear in court to enforce their mandates or defend their activities and how has that changed over time? Without knowing the answers, anecdote and myth can dominate our conversations and even guide policy reform.”

Magill, an expert in administrative law, is co-authoring a book with University of Michigan law professor Steven Croley to fill this gap.

“By establishing what the facts are, we will put to rest some myths and also identify where further study is needed,” she said.

Magill presented some of the preliminary findings at the hearing. Agencies now issue about 4,000 rules each year, she explained, a gradual decline since the early 1980s, when agencies authored 6,000 rules. Around 1,000 to 1,200 rules issued each year have a substantive effect, and about 700 are significant enough to trigger White House review.

“About 45 to 75 per year constitute huge rules with an estimated annual impact on the economy of more the $100 million,” Magill testified.
The number of administrative law judges rose 13 percent from 1991 to 2004, Magill told the subcommittee, despite the fact that overall federal government employment dropped by 15 percent.  

One of the most significant trends in the data Croley and Magill collected concerned court cases involving the United States. Over a 14-year period, the Administrative Office of the Courts reported a two-thirds decline in the number of cases in which the government was the plaintiff. During the same period, the number of times the government served as a defendant rose from 25,000 to 40,000.

Magill said their data raised a number of topics for further exploration, such as why the number of rules warranting White House review is increasing and reasons for trends in government litigation.

“Our work won’t answer these questions,” Magill said, “but it will identify what the real questions are. My hope is that the resource we are creating will lead to a better understanding of administrative agencies, and will focus our attention and resources on what actually matters.

“Scholars spend much more of their time studying Congress and its activities than they do studying the activities of the administrative state,” Magill said, “but that is a mistake.  We’ve got to change that and we are taking steps to do so.”

— Reported by Mary Wood