In this age represented by a near gatling gun approach to the issuance of Executive Orders the academy is to be complimented for giving increasingly greater attention to the institutional standing of well-reasoned, peer reviewed Presidential instruments that stand the test of time and in doing so might help quell the current state of chaos in the administrative state. The administrative state has been subjected to many Executive Orders but only a small number have had the impact as that of Executive Order 12291 which is administered by OIRA; its current bipartisan derivative prevails in part as Executive Order 12866. Executive Order 12291 required regulatory agencies to perform benefit/cost analyses of regulations and to submit them to OMB for review.
Several months ago the Center for Regulatory Effectiveness posted its views on dealing with school violence. Subsequently the Washington Post published a companion article that reached a similar conclusion. To view the Washington Post article, CRE comments thereto and the attendant public comments on both click here.
EPA’s well intended—but poorly designed—rule for transparency in science will not provide the relief so claimed and will thwart real reform because it fails to capitalize on existing statutes which address an identical problem.
I am with the Center for Regulatory Effectiveness and I am highlighting an issue seldom addressed in the comments submitted to EPA as of this date notwithstanding EPA requesting that the issue be addressed, namely:
“EPA solicits comment on this proposal and how it can best be promulgated and implemented in light of existing law and prior Federal policies that already require increasing public access to data and influential scientific information used to inform federal regulation.
For decades the academy of administrative law has written extensively on judicial precedent. Students are indoctrinated with the principle of Stare decisis, a Latin term which means “to stand by that which is decided”.
The emphasis on judicial precedent has a strong economic argument in support of its preservation independent of its merits because mastering the details of court rulings should yield a competitive advantage in litigation as a result of its questionable domination of law school curricula.
However with each passing day the emphasis on the widespread acceptance of judicial precedent may be misplaced however meritorious. Consider for example a post of Professor Richard Pierce on a recent ruling of the Supreme Court; he concludes:
PPBS, Planning, Programming and Budget System, introduced by Secretary of Defense Robert McNamara, has a number of offspring.
It immediately shifted power from budget analysts to quantitative analysts. PPBS shops were prominent in the Department of Defense and eventually the concept was expanded to the civilian agencies.
As is the case with numerous government reform measures it disappeared; however some of its offspring remain in place. One of the most notable is centralized regulatory review. Centralized regulatory review is a descendant of the requirement that benefit-cost analyses be applied to regulations. See this article for the history.
OIRA is “the lineal descendant of efforts by Presidents Nixon, Ford, and Carter to achieve greater coordination within the huge Executive Branch.”
CRE is not supportive of the EPA science initiative at this time because it creates a new regulatory regime without first exploiting to the fullest the existing regulatory regime which consists of the Data Access Act and the Data Quality Act. It has been nearly a month since CRE announced its opposition to the EPA Silent Science Initiative. During that time period we have examined the position of others and it appears that with the exception of NGOs, CRE is the only organization which has stated an outright opposition to the EPA proposal.
Here are CRE positions on this matter:
In that the Editor will approach his eightieth year in several weeks, he has been asked to provide the names of his contemporaries who not only made a noteworthy but also a unique impact on the functioning of the Administrative State, who did so both as a federal employee and in prior or subsequent non-federal employment, who were confirmed by the Senate and who are currently employed in their chosen field of endeavor.
Notwithstanding the aforementioned formidable list of qualifying conditions the names that come to mind in very short order include but are not limited to:
Editor’s Note: The conference programme is available here.
St Mary’s University, London, UK will hold a conference on Quantum Law on Tuesday 26th June 2018. Mr. Bruce Levinson, CRE Senior Vice President—Regulatory Intervention will make a presentation. For additional information contact Mr. Levinson at the CRE.
The following has been extracted from the brochures describing the program.
Quantum theory, the study of the nature and behaviour of matter and energy on the atomic and subatomic level, has come to occupy a dominant position in physics. It is however increasingly important also as both the basis of new or potential technologies and as a broader idea outside of subatomic physics itself, as both an artefact of popular culture but also a means of explaining other complex phenomena.
CRE’s Emphasis on Data Access and Data Quality is Rooted in the Paperwork Reduction Act Amendments of 1995
Notwithstanding regulatory folklore to the contrary, the Data Access Act and the Data Quality Act did not evolve from an overreach of centralized regulatory review but instead are based upon an explicit grant of authority from the Congress to the Director of OMB in the 1995 Amendments to the Paperwork Reduction Act.
44 U.S. Code § 3504 – Authority and functions of Director
- The Director shall oversee the use of information resources to improve the efficiency and effectiveness of governmental operations to serve agency missions, including burden reduction and service delivery to the public. In performing such oversight, the Director shall—(B) provide direction and oversee—