Although Supreme Court chief justice nominee John Roberts worked for an administration generally hostile to regulation, documents released by the Reagan Library from his time as White House counsel reveal that he raised considerable objections to at least one of the period’s far-reaching regulatory "reform" proposals. In 1983, while working as Associate Counsel to President Ronald Reagan, Roberts was asked to review a radical regulatory reform bill proposed by then-Rep. Trent Lott (R-MS). The bill, known as the Regulatory Oversight and Control Act of 1983 (H.R. 3939), would have imposed significant burdens on regulatory agencies, mandating the following:

• All regulatory agencies would perform cost-benefit analysis for all new major rules (i.e., those that would impose costs greater than $100 million).
• Agencies would also have to review all existing major rules over a ten year cycle.
• All newly proposed and existing major rules would include sunset provisions, which would force the rule to expire no later than 10 years after it was promulgated.
• Further, major rules would only pass with congressional approval, and Congress would be given an opportunity to disapprove all non-major rules.

Along with these provisions, the legislation would have also codified parts of Reagan's Executive Order 12911, such as the requirement that agencies produce a regulatory agenda. Other provisions would have changed the way rules were judicially reviewed and given Congress greater oversight authority over the rulemaking process. Many of these provisions would have in effect stifled all agency rulemaking. Moreover, many of these ideas are now being proposed once again by conservatives in the House. Roberts wrote two memos to White House Counsel Fred Fielding responding to the proposed legislation. In the memos, Roberts opposed several specific provisions of the bill and criticized the bill overall for overburdening agencies. Though Roberts did condone the use of cost-benefit analysis in agency rulemaking, he believed that the review of existing rules would overly burden agencies. Roberts also strongly disagreed with the mandate for congressional review of agency rules. Very little about Roberts’ opinions on regulatory reform can be discerned from the first of these documents, an Oct. 7, 1983 memo with recommendations for a White House letter to Lott regarding the bill. Roberts took a prudent, legalistic approach to the legislation, recommending the White House respond with only "broad generalities" until the White House Counsel office had time to evaluate the bill carefully and consult the affected agencies. He did elaborate on one part of the bill, but only because he concluded it was unconstitutional. Roberts’ second memo, from Oct. 17, was more revealing. In response to an OMB request for comments on the bill, Roberts was stronger in his criticism of H.R. 3939 as a handicap to agency rulemaking, objecting to "the burden of mandating agency review of existing regulations." Roberts also criticized the bill for "hobbling agency rulemaking by requiring affirmative Congressional assent to all major rules." Though Roberts did agree with the use of cost-benefit analysis in evaluating new regulations, he believed applying cost-benefit analysis ex post would drain agency resources and stymie White House efforts to put forth new regulatory initiatives. In a document drafted by Roberts and signed by Fielding, Roberts acknowledged that "several of the provisions, such as those mandating regulatory analyses of agency rules and requiring agencies to adopt the most cost-effective alternative, appear to be consistent with the Administration's approach to regulatory reform." Roberts added, however, that "other provisions of the bill would seem to impose excessive burdens on the regulatory agencies in a manner that could well impede the achievement of Administration objectives." Although the Roberts files reveal little about his approach to regulatory policy itself, there is ample additional evidence that Roberts is hostile to the exercise of federal power to fashion solutions to national problems, whether by questioning the Commerce Clause as a basis for environmental protection or by actively litigating against standards established through Spending Clause programs.