Rory Van Loo of BU has written Regulatory Police, forthcoming in the Columbia Law Review. Here is the abstract:
The front line for business regulation — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — guard against toxic air, financial ruin, and deadly explosions. Like police officers patrolling the streets for crime, this federal regulatory front line decides when and how to enforce the law. Yet whereas scholars devote considerable attention to the role of police officers in law enforcement, they have paid limited attention to regulatory police. This Article is the first to chronicle their statutory rise and to situate them empirically at the core of modern administrative power. Since the Civil War, in response to various crises the largest federal regulators have steadily accrued authority to collect documents and enter private space without any suspicion of wrongdoing. Those exercising this monitoring authority within agencies, regulatory police, administer the law at least as much as the groups that are the focus of legal scholarship: enforcement lawyers and rule writers. Regulatory police wield sanctions, influence rulemaking, and create quasi-common law. Yet unlike lawsuits and legal rules, monitoring-based decisions are less observable by the public, largely unreviewable by courts, and explicitly excluded by the Administrative Procedures Act (APA). The regulatory police function can thus be more easily ramped up or deconstructed by the President, interest groups, and other actors. A better understanding of regulatory police is vital to designing democratic accountability not only during times of political transition, but as long as they remain a central pillar of the administrative state.