A Magna Carta for the Management of the Administrative State

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The Program

CRE has just completed its analysis of the contribution that three professions,  economics, law and political science, make to the management of the administrative state. Although select parties in each of the aforementioned professions have made notable contributions to the effective working of the administrative state, we discovered that management improvement is not the long suit of their professions taken as whole.  Yes, we use the term “management” because whether or not the administrative state is constitutional it plays a dominant role in society, in part because of the increasing interdependency of its citizenry.  Consequently  the efforts herein  are focused on  managing the administrative state —  not destroying it. In other words make the best of it.

There is no free lunch; acceptance of the administrative state comes at a price–it must be subject to meaningful regulation. To date regulation of the administrative state frequently has been subject to the whims of the then incumbent Administration because of a lack of consensus on the underlying principles which are to guide the said “regulation of the regulators” or in the past to “Reign in the King” or more generally to manage the regulators.

In a nutshell Executive Branch management of the regulators was nearly non-existent until the advent of centralized regulatory review.

The sections which follow are aimed at providing a pathway to the development of the aforementioned principles  by initiating a public debate on the principles which are to guide the management of the administrative state by the Executive Branch. CRE encourages other parties to undertake initiatives similar to the one described herein and hopefully keep us apprised of their progress.

It is recognized upfront that this project requires a dedicated commitment over a substantial period of time comparable to other ventures undertaken by CRE personnel over the past half century.

Governance

See Political Science, Law, Economics and Management of the Administrative State

Management

The formulation of a Magna Carta for the Administrative State is a gigantic effort. One possible first step is for each of the three governing disciplines, as described above, to develop its own version of the said document through a series of continuous posts on this website.  Suggested topics for  Parts I, II and III are set forth below.

Part I: Economics

Part I would set forth the governing economic principles for the management of the administrative state giving due consideration to the views of six former OIRA Administrators and  the views of other scholars on the emergence of existential threats.

Part II: Legal

Part II would delineate the legal principles which would govern the management of the administrative state. In Management 101 the term “management: is defined as  the coordination of all resources through the process of planning, organizing, directing and controlling in order to attain stated goals.

Part III: Presidency

Part III would delineate the operating principles for Presidential involvement in the administrative state based upon an in-depth historical review of the record since the nation’s founding. This part would also explore the options for the “enforcement” of the Magna Carta.

Implementation

Part I: Economics

In order to jump start the process, governmental, not-for-profit, academic and commercial bodies should canvass their constituencies to solicit their views on adopting the nine management  principles set forth below for inclusion in Part I: Economics of the Magna Carta for the Administrative State.  Participating parties may record their views with or without attribution in the space provided below.

The proposed management principals are as follows:

(1) The existence of positive net benefits for a proposed rule is a necessary but not sufficient condition for its issuance as a final agency action.

(2) No rule can be issued as a final agency action unless, subsequent to demonstrating APA compliance, it is preceded by inclusion in a government-wide, multiyear plan which has been subjected to notice and comment and issued as a final rule.

(3) No guidance document can serve as the basis for a mandatory administrative action until it is issued as a final rule.

(4)  The “benefits” of a rule external to the national efficiency account must be considered at the request of the sponsoring agency.

(5)  Unless explicitly prohibited by law, “major” rules are to be accompanied by a benefit-cost analysis.

(6)  Any executive order classified as Iconic shall not be revoked or modified for at least thirty days subsequent to the seating of a new Administration.

(7)  Agencies are encouraged to develop multiagency regulatory programs compliant with the Information Quality Act for inclusion in the multiyear plan described in (2) above with a particular emphasis on plans which address existential threats such as climate change.

(8)  All information disseminated by any federal agency will continue to be subject to the Information Quality Act and agencies will support judicial review of their actions on a case-by-case basis after notice and comment.

(9) The Office of Information and Regulatory Affairs is the organization accountable for the management of the administrative state and its staff level must be increased to the level in place at its establishment some forty years ago.

The above are presented to demonstrate the need for a public debate of the principles which should guide the management of the administrative state and by no means are considered to be all inclusive.

Part II: Legal

Under review by a select number of relevant parties. Please note the recommendations of topics to be addressed in the remarks of Mr. Kogan presented in the text below.

Part III: Presidency

CRE welcomes assistance in contacting relevant parties.   Here is a comprehensive background paper Magna Carta and the Contemporary Presidency which when augmented by this  extraordinary publication Magna Carta, the Rule of Law, and the Limits on Government moves in the direction of the ultimate paper we seek.

Expert Comments Requested

The magnitude and complexity of this endeavor is so substantial that it is imperative that scholars and practitioners in a wide range of disciplines present their views in the comment section that follows. Anonymous replies are accepted.  We also encourage  “reply comments” to the comments submitted by others.

We will continue to accept emails from the general public sent to this address but our preference for comments submitted by expert parties is to submit them for the record in the space below because we are  building a public database for researchers. Substantive comments from the public will be published in a separate post herein.

Outside parties cannot post documents, as opposed to comments, on this page; those wishing documents to be posted should notify CRE at the aforementioned address and CRE will post them as requested. The documents will be posted in The Library.

CRE will take the requisite steps to ensure that Executive, Legislative and Judicial Branch employees are advised of the activities herein.

5 comments. Leave a Reply

  1. James Broughel

    Here are a few suggested improvements: Principle #4 could be reworded to say “If a regulation has important distributional impacts, those should be factored into the agency’s decision.” I believe this is the intended meaning.

    Principle #1 could be amended to say: “The existence of positive net benefits implies a proposed rule increases allocative efficiency. This is a necessary but not sufficient condition for its issuance as a final agency action.” This wording would make clear what net benefits refers to.

  2. Lawrence Kogan

    This is an interesting concept, but it is presented in a bureaucratic vacuum with the unproven assumption that a single branch of government can ever be expected to honestly govern itself.

    I do not give credence to any notion of an “administrative state”; nor do I accept the “administrative state” as it has evolved, as a fait accompli. Furthermore, what I don’t see, which I consider necessary and indispensable to any further discussion of this subject matter, is a reference to the United States Constitution, the Bill of Rights and the Declaration of Independence, or any reference to notions of federalism, liberty interests, private property rights, individualism, etc. I also don’t see any reference to consistency with statutory interpretation, non-delegation, judicial deference, etc., all of which have resulted in too much authority being aggregated by executive agencies with little, to no oversight, from a cacophonous Congress and a deferential judiciary obsessed with stare decisis at the expense of administering justice.

    I regret such skepticism, but, my regulatory and litigation experience betrays me.

  3. Pagosa Daily Post

    Most Americans associate England’s Magna Carta (the Great Charter) with the right to a jury trial if they are accused of a crime. Few realize the Charter was the culmination of a tax revolt. It’s a declaration of economic property rights — against high taxes and government restriction on who can engage in commerce — that has renewed relevance in 2020 America.

    In 2020, our economic liberty is being threatened by government mandated shutdowns. We are being subjected to regulation of private property, business, and commerce in a way tyrannical English kings would envy. Government officials are restricting individual freedom to pursue commerce, contrary to rights guaranteed in Magna Carta. Those most negatively impacted by the shutdown are small-business owners, their families and employees — the very group of people Magna Carta protected from this very sort of oppressive regulation. These shutdowns turn back the clock on economic freedom by eight centuries.

    Read complete article.

  4. CRE

    Priority Work Areas
    10 21 20

    This section is a permanent post aimed at informing our readers of the highest priority areas where we seek their assistance.

    1. Redraft the economic principles in Part I based on public comments received as of this date.

    2. Delineate the draft legal principles set forth in Part II giving due consideration to comments received as of this date.

    3. Provide CRE with the names of individuals or organizations capable of drafting an outline of the Presidency paper set forth in Part III.

    4. We have added a Library which contains key publications relevant to the current discussion. We welcome your suggestions for additions thereto.

    CRE is soliciting the comments from those schooled in the subjects under discussion. Those merely wishing to provide an unsubstantiated personal opinion should provide the said information to CRE at this address. These submissions will be published periodically in a single post.

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