major-party presidential candidates appear not to have too much to say about
abolishing federal agencies. In the past several years, we have seen more
than a little public and legislative interest in what has been called reregula-
tion.
25
In a small number of instances, such as nuclear power, food and
drug products, banking and savings and loan institutions, and hazardous
waste sites, public interest in some type of continuing regulation has
persisted. There seem, however, to be few cheerleaders for any renewal
of economic controls. As we move toward the end of the century, many
commentators have expressed interest not in abolishing, but merely in
“fixing” government regulation, possibly by developing concepts of “regula-
tory flexibility.”
26
There is much discussion on the issue of moving a
substantial amount of regulatory effort from the federal level to the state
and local government levels through a process that has become known as
“devolution.”
27
No matter what form these new developments take, they are healthy
because they force everyone to re–examine some of the fundamental
assumptions of the administrative system of government. Putting agencies’
specific regulatory programs and conventional administrative procedures
under the microscope will help us develop more creative and effective
solutions for the problems of twenty–first century America.
28
There are some other currents of scholarship that both students and
practitioners should appreciate. In 1997, two distinguished administrative
25
Killing the CAB was symbolically important because the agency was established in
that flurry of New Deal legislation that helped create many of the federal agencies referred
to as the “Big Seven”—the CAB, Federal Communications Commission, Federal Power
Commission (now Federal Energy Regulatory Commission), Federal Trade Commission
(established in 1914), Interstate Commerce Commission (established in 1887 and now
abolished), National Labor Relations Board and Securities and Exchange Commission. This
does not mean that U.S. airlines are totally unregulated. They remain subject to all other
forms of government control (i.e., safety requirements, labor and equal employment laws,
antitrust statutes, and the like). Thus, the term deregulation frequently refers solely to
termination of economic regulation: It does not mean the total absence of regulation.
26
See, e.g., Symposium on Regulatory Reform, above note 18; Marshall Breger, Regula-
tory Flexibility and the Administrative State, 32 Tulsa L.J. 325 (1997); Douglas C. Michael,
Cooperative Implementation of Federal Regulations, 13 Yale J. on Reg. 535, 541 (1996)
("The government would rely on the regulated entities to develop specific and individual
implementation plans, and would thus restrict its role to assisting in and providing incentives
for self-implementation programs, and to maintaining a credible residual program of
detection, surveillance and enforcement.").
27
There is considerable debate as to the meaning of devolution and whether or not it
has already occurred. See, e.g., Mary A. Gade, The Devolution Revolution Has Already
Occurred, State Envtl. Monitor, Mar. 4, 1996.
28
Many of these innovations are discussed in more detail in Chapter 15.
(Pub. 878)
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