Politics, Benefit-Cost Analysis and Centralized Regulatory Review

Professor Revesz has written an interesting article titled Congress and the Executive: Challenging the Anti-Regulatory Narrative.  In it he concludes:

Furthermore, in a troubling development, the Trump Administration’s has turned away from cost-benefit analysis in order to carry out its anti-regulatory agenda, disregarding an established bipartisan consensus that stretched back several decades.

Whether or not one agrees with his conclusion it emphasizes the importance of preserving critical executive orders as emphasized in this post so they can be used to referee such disputes.

OIRA’s Formative Years

Read a detailed account of the ascendancy of centralized regulatory review beginning with the Johnson Administration through the Reagan Administration. The text is accompanied by footnotes which contain originial source material.

Here

 

 

The Iconic Executive Order 12291: The Precedent for the Preservation of Critical Executive Orders and Centralized Regulatory Review

 

Editors Note: See a Library of relevant articles compiled from five decades of intense debate which lead to The 50th Anniversary of Centralized Regulatory Review.  The importance of examining current developments in centralized regulatory review relative to its precursors is discussed in this post and A European View on Executive Order 12291.

 

In this age represented by a near gatling gun approach to the issuance of Executive Orders the academic community is to be complimented for devoting increasingly greater attention to the institutional standing of well-reasoned, peer reviewed Presidential instruments, including both Executive Orders and Proclamations, that stand the test of time. In doing so they might help quell the current state of chaos in the administrative state, see Administrative Law in a Time of Chaos

Washington Post on Holding Parents Accountable For School Violence

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 Transparency in Science Rule: Open Letter to the Public

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.

Is stare decisis on a path to extinction?

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: The Torch That Lead To Centralized Regulatory Review

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.

A Very Memorable Quotation

Justice Breyer:

OIRA is “the lineal descendant of efforts by Presidents Nixon, Ford, and Carter to achieve greater coordination within the huge Executive Branch.”

Update on the CRE Position on the EPA Silent Science Initiative

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:

Icons of the Administrative State

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: