The “public charge” rule is a long-standing immigration policy that seeks to determine the likelihood that a prospective immigrant will become dependent on the government for subsistence. When the Trump administration sought to expand the criteria that would count against an applicant for permanent residency to include public benefits historically excluded from the calculation, thousands of commenters wrote to oppose or support the proposed changes. This paper explores the moral and practical reasons commenters provided for their position on the public charge rule and considers the value of the public comment process for immigration, health, and social policy.

This study, which is based on a survey of women's organizations’ staff members, answers two previously unexamined questions about women's groups’ participation in the rulemaking process: (1) How do women's organizations participate? (2) What are the characteristics of the women's organizations that are the most likely to participate? About one-quarter (27%) of women's organizations reported that they lobby rulemakers, often using relatively low-cost methods, such as submitting comments or signing on to comments written by coalitions or like-minded groups. Women's organizations with large staffs that are structured the most like political insiders or influential economic interest groups were the most likely to participate in the process, potentially biasing participation in favor of relatively advantaged subgroups of women. Together, these results suggest that although rulemaking presents unique opportunities to represent women, the most marginalized women may be underrepresented during rulemaking debates.

From 2018 through 2020, HHS approved state Medicaid demonstration waivers to impose new eligibility conditions such as work requirements, connecting current “personal responsibility” rhetoric and historical suspicion of malingering. The Biden administration reversed course but advocated to the Supreme Court for expansive administrative discretion. This approach supports health equity now but could enable reemergence of restrictive health policies down the road.

Rulemaking pursuant to the 2010 Dodd-Frank Act provides a useful setting to assess theories of interest group influence. In the wake of the financial crisis, Congress delegated new rulemaking authority to federal agencies to regulate mortgage markets. A critical aspect of this new regulatory regime engendered significant controversy from affected interests: “credit risk retention” would require sponsors of asset-backed securities to retain a stake in the risk of securitized assets. Contrary to unrefined industry capture-based accounts stressing the disproportionate role of larger, well-established regulated entities in setting policy, we find little evidence of sustained effort by large lenders to dilute regulatory standards via political investments. Rather, a diverse coalition of housing sector, community, and civil rights groups, backed by an ideologically diverse swath of legislators, forced substantial regulatory retrenchment. Our analysis suggests a more nuanced view of private influence, in which coordination plays a more substantial role than political investments alone.

Interest groups face many choices when lobbying: when, who, and how to lobby. We study interest group lobbying across two stages of regulatory policymaking: the congressional and agency rulemaking stages. We investigate how the Securities and Exchange Commission responds to interest groups at the end of these stages using a new, comprehensive lobbying dataset on the Dodd-Frank Act. Our approach examines citations in the SEC's final rules which reference and acknowledge the lobbying activities of specific interest groups. We find that more than 2,900 organizations engaged in different types of lobbying activities either during the congressional bill stage, the agency rulemaking stage, or both. Meetings with the SEC and hiring former SEC employees are strongly associated with the citation of an organization in a final rule. Comments submitted by trade associations and members of Congress are cited more in a final rule compared to other organizations. While there is more variety in the types of organizations who lobby the bureaucracy than those who lobby Congress, presence does not necessarily lead to recognition or influence.

Though the concept of intersectionality has been in circulation for nearly 30 years and women's organizations have long been criticized for failing to prioritize the concerns of women of color, poor women, and LGBTQ women, more research is needed to determine precisely why women's organizations do and do not discuss those intersectional identities during policy debates. This study analyzes 1,021 comments that women's organizations submitted to rulemakers to test a series of hypotheses about how women's organizations’ references to women's intersectional identities increase or decrease depending on the organization's primary constituency and ideology, the proposed rule's target population, and other features of the policy-making context. Using automated text analysis and a series of models, it shows that women's organizations do discuss intersectionally marginalized women in their comments. However, not all subgroups of women are equally represented during the process. Women's organizations focus on women's sexual orientations and gender identities more than their races, ethnicities, nationalities, or socioeconomic statuses. Intersectionally marginalized women also tend to receive the most attention when commenters are from organizations that are explicitly focused on representing intersectionally marginalized women and when bureaucrats include references to intersectionally marginalized women in their proposed rules.

Environmental justice (EJ) has represented an important equity challenge in policymaking for decades. President Clinton’s executive order (EO) 12898 in 1994 represented a significant federal action, requiring agencies to account for EJ issues in new rulemakings. We examine the impact of EO 12898 within the larger question of how EO are implemented in complex policymaking. We argue that presidential preferences will affect bureaucratic responsiveness and fire alarm oversight. However, EJ policy complexity produces uncertainty leading to bureaucratic risk aversion, constraining presidential efforts to steer policy. We utilise an original data set of nearly 2,000 final federal agency rules citing EO 12898 and find significant variation in its utilisation across administrations. Uncertainty over the nature of the order has an important influence on bureaucratic responsiveness. Our findings are instructive for the twin influences of political control and policy-making uncertainty and raise useful questions for future EJ and policy implementation research.

Rulemaking gives agencies significant power to change public policy, but agencies do not exercise this power in a vacuum. The separation of powers system practically guarantees that, at times, agencies will be pushed and pulled in different directions by Congress and the president. We argue that these forces critically affect the volume of rules produced by an agency. We develop an account of agency rulemaking in light of these factors and test our hypotheses on a data set of agency rules from 1995 to 2007. Our results show that even after accounting for factors specific to each agency, agencies do, in fact, adjust the quantity of rules they produce in response to separation of powers oversight. Further analysis shows that the president’s influence is limited to those agencies that he has made a priority.

Most lobbying is invisible, meaning that interest groups routinely contact government officials “off the public record.” While such lobbying is ubiquitous, whether and how it may affect public policy decision-making remains largely unknown. I theorize that lobbying that employs both invisible and visible tactics is the most influential. I study the development of 38 health-related regulatory policies in Wisconsin to assess this argument. I employ government records, survey data from more than 350 individuals, and interviews with 15 state policymakers. I find that invisible and visible lobbying—when performed in combination—are associated with greater regulatory policy change. From a normative perspective, these results are both reassuring and troubling. On one hand, the results suggest that invisible lobbying, on its own, rarely drives state regulatory policy shifts. Yet, on the other hand, those interested parties with the resources necessary to lobby across multiple modes are more likely to see policy change.

This paper offers up a map of self-authored post-legislative guidance practice among the EU’s decentralised agencies. It shows that the use of guidance by EU agencies is widespread and significant, but not pervasive in that 14 of the EU’s 33 agencies currently engage in guidance-making. Where guidance is produced, it varies significantly between and within agencies as regards volume and length. These documents are hard to find, they are called a miscellany of different things, and there seems to have sprung up, ad hoc, a hierarchy of guidance that is both interesting and lacking in clarity. The question as to whether such guidance binds those to whom it has been addressed has been fudged, with agencies and courts engaging in exercises of tautology and misdirection to avoid the appearance of anything that looks like binding norm-making by the EU’s agencies. Consultation and participation in the making of guidance seems lackadaisical. This map suggests a level of differentiation that is so ill-thought out, and so ad hoc, so lacking in foresight and oversight, as to be dysfunctional. At the same time, the lack of engagement by the EU courts with these norms suggests that the site of opportunity for a way forward in this area lies other than with the judiciary.

The creation of the European Securities and Markets Authority (ESMA) has marked a major step towards more integrated rulemaking and supervision in the European financial market sector. ESMA's organisation and operations are strongly influenced by the position of this new Authority within the EU institutional framework. The European Court of Justice (in Case C-270/12) confirmed the legitimacy of the legal basis of ESMA itself and of its powers. While ESMA's governance still displays some features of a network among national supervisors, its quasi-regulatory functions and supervisory tasks are constrained by limitations directly or indirectly dictated by the Treaties. This paper highlights how the traditional concepts of independence and accountability towards EU institutions and stakeholders apply to ESMA. ESMA's relationships with national competent authorities, which retain direct supervisory powers with limited exceptions, and the EU institutions, which are competent for the adoption of legislative and non-legislative regulatory measures, are also considered. The analysis shows that tasks conferred on ESMA fall short to match its relatively high accountability, which is aligned with international best practices. The European Commission announced a possible revision of the European Supervisory Authorities (including ESMA) framework for 2014; we therefore suggest some reform proposals that could help streamline regulatory and supervisory functions at EU level, thus allowing ESMA to better exploit its potential while avoiding the risk of excessive centralisation of supervisory powers.

The formulation of legal rules is a challenging issue for lawmakers. Tradeoffs are inevitable between providing more guidance by specific rules and enlarging the scope by general rules. Using real options theory we show that the degree of precision should be considered as a degree of flexibility which increases the value of the text. Thus, we derive a normative principle for a draftsman to choose between rules versus standards and to decide when the law should be enacted. In highly innovating environments, delaying the enactment allows lawmakers to obtain more information. Therefore, the lower the degree of precision of the law, the shorter the delay.