This note examines the motivations, biases and expectations of the major institutional players in the Chevron debate, ranging from OMB, to the academic community to federal litigators to legal practitioners and ultimately judges. The Chevron Debate concerns Chevron Deference which is a result of a Supreme Court ruling which declared that when courts review actions taken by federal regulators the courts should defer to the views of the regulators if the underlying statute is ambiguous and if the position of the regulator is reasonable.
Alan Schmid: Founder of the Modern Day Application of Benefit-Cost Analysis to Regulations—the evanescent utilization of an outstanding academician in Washington
Nearly fifty years ago Alan Schmid, a visiting professor working at the Office of the Secretary of the Army, made a game changing announcement to his colleagues in the Systems Analysis Group housed in the Pentagon. Schmid argued that the then use of benefit-cost analysis, which was applied to capital expenditure projects such as dams and waterways, should be extended to federal regulations. The systems analysts in attendance were dumbfounded by the idea of applying benefit-cost analysis to a pile of paper as well as to a pile of concrete. The Schmid announcement is in this compendium: Schmid PPB.
Washington, D.C., August 3, 2017 – The Administrative Conference of the United States (ACUS) today announced the appointment of 13 new Public Members and 10 new Senior Fellows:
Re: Professor Chen article in the Administrative Law Review
Administrative law scholars when writing on centralized regulatory review often describe the state of affairs relative to a legal metric: usually the constitution, the APA or both. On the other hand Professor Chen utilizes a refreshing approach which bases her analysis on a comparison of two different groups capable of managing centralized regulatory review: White House personnel and experts in the executive branch agencies.
This article is an excellent example of the benefit of analyzing centralized regulatory review from the perspective of comparative administrative law. In particular the Professor concludes: “But President Obama channeled his executive actions through experts and agencies. President Trump has concentrated power in the White House and insulated executive power from agency expertise.”
Presently governance of the administrative state is controlled by the legal profession; the economics profession controls its analytical paradigms for program evaluation. The evolution of reigning disciplines in the management of the regulatory state could be characterized in the following manner:
1920’s – 1960’s Budget Analysts
1960’s – 1990’s Economists (Documented in forthcoming book (2019) by Professor Elizabeth Berman)
1990’s – 2020’s Attorneys
In addition to the legal profession two emerging disciplines are beginning to opine on governance of the administrative state; political scientists and practitioners of comparative administrative law.
The American Political Science Association Call for an Interdisciplinary Approach to Problems: All Hat No Cattle?
Editor’s Note: Subsequent to the following post ASPA advised CRE of measures CRE could take to increase an interdisciplinary approach to problems; CRE appreciates the initiative taken by ASPA.
The American Political Science Association (ASPA) issued an exemplary report on the need for an interdisciplinary approach to problems. Much to its credit, the National Science Foundation sponsored the report. The Center for Regulatory Effectiveness (CRE) has been a stalwart in supporting NSF funding of political science studies in the darkest of times; see page thirty two of this post.
The Latent Need to Update Law School Curricula
Our national debt continues to grow unabated. Neither political party shows any interest in controlling it; in fact when they do they face ostracism. The sad state affairs is that members of Congress do in fact represent their constituents —too well.
Years ago, in 1984, in a book titled “A Season for Spoils”, its author Jonathan Lash wrote:
“Years before, Tozzi had decided that there might not be much more that could be done to control federal spending, but that a great deal could be done to curtail federal requirements that made industry spend. He embarked on a campaign to give OMB the same kind of control over agency regulations that it already had over their budgets.”