Management of the Administrative State

Historically three disciplines have studied the functioning of the administrative state: law, economics and political science/public administration.  Unfortunately none of the aforementioned disciplines have focused on the management of the administrative state.  By management of the administrative state we mean the processes which govern how decisions are made.

To date the management of the administrative state has been defined in large part by four actions: (1) the passage of the Administrative Procedure Act, (2) benefit-cost analysis, (3) centralized regulatory review and, (4) implementation of a regulatory budget.  These process changes have been controversial; they continue to be the subject of review by each of the aforementioned professions and have been augmented by the laudatory accomplishments of the current Administration.

With the exception of the work of the legal profession on the Administrative Procedure Act and the work of the economics profession on benefit-cost analysis, the three  professions have in large part been bystanders regarding the initiation of managerial process changes, and therefore management, of the administrative state. (The myriad of analytical requirements imposed on regulators are considered by some as addressing managerial concerns but they can also be considered as modifying the information base for managerial decisions but are not in themselves process changes fundamental to management of the administrative state.)

A forthcoming paper titled OIRA: Past, Present and Future recommends three managerial changes in the governance of administrative state: (1) the declaration of a select group of existing executive orders as “iconic” so as to require a higher burden of analysis prior to their possible revocation by an incoming Administration, (2) enforcing a decades old executive order which places OMB at the helm of the interagency review process for both the issuance of new executive orders and the revocation of existing executive orders and (3) the initiation of a public debate on whether a mechanism should be employed which would allow policymakers to control the size of the administrative state.

Based upon a historical review of their publications to date it is not obvious that any of the three professions which traditionally have emphasized the study of the internal operations– in contrast to the management— of the administrative state have a  membership who in total are either equipped or interested in addressing  the merits of the aforementioned proposals. Therein defines the challenge as reinforced by the failure to adopt this initiative  for one of the three aforementioned disciplines.

Another way to review the matter may be that practitioners possess in large part the intricate knowledge of the management of the administrative state by the executive branch whereas members of the academy possess in large part knowledge of the management of the administrative state by the judiciary. The aforementioned “initiative” was designed to bridge these differences which is  a challenge because the day job of practitioners is not commensurate with the opportunity that members of the academy have to publish learned articles.

We would like to emphasize  that it is one thing to study the administrative state and a far different thing to actually manage it; consider for example the management challenges in implementing either of these two regulatory initiatives. Please consult the center column of this page for a statement of some of the critical principles which historically have governed the management of the administrative state.

We conclude that if we are going to work to designate Executive Orders 12291 and 12866 as Iconic so as to establish a higher level of deference to be accorded Executive Order 12866  prior to its possible  modification or revocation by an incoming Administration and to preserve the accomplishments of the current Administration  then our best bet is to place an emphasis on working with the economic community.  That said, in addition to working with academicians in the economic community considerable attention will be given to recruiting members of the practitioner component of the economic community since history demonstrates that they have been responsible in large part for the major recent innovations in the management of the administrative state.

It should be noted that the reference to Executive Orders could be expanded to include OMB Directives; if that were the case all of the four innovations in this post would be eligible for the “Iconic” designation.

References

Trump: Procedural Reforms

Clinton: Executive Order 12866

Reagan: Executive Order 12291

OIRA Reinvigorated

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