Between the Agency and the Court: Ex Ante Review of Regulations

Abstract

Abstract Administrative regulations are an important tool of modern government, but their legitimacy is often questioned since they are adopted by the executive branch rather than the legislature. Judicial review of the legality of regulations is necessary but not sufficient as an accountability mechanism because judicial review is subject to many practical and legal shortcomings, especially including its high cost. Consequently, the vast majority of regulations are never subject to judicial review, which creates an accountability deficit. This deficit can be remedied through ex ante administrative review of the legality of regulations by an executive branch agency that is independent of the adopting agency. This Article evaluates executive branch ex ante legality review schemes in California, Chile, Israel, and France. Although these regulatory review schemes vary greatly, each of them scrutinizes the substantive and procedural legality of regulations (as distinguished from their economic or environmental effect or their political acceptability). This review takes place before the regulations are judicially reviewed and before they become effective. Ex ante administrative review can compensate for the failings of judicial review, promote the rule of law, and enhance the legitimacy of the regulatory process.