Here is an easy Miller Analogy question for attorneys and economists: judicial review is to attorneys as ____ is to economists?
Answer: benefit-cost analysis
Nonetheless the answer is more complex because attorneys tend to emphasize judicial review and economists tend to emphasize benefit-cost analysis when it comes to both managing the administrative state and in challenging it.
The implementation of a regulatory budget will diminish, to a degree, the influence of both disciplines as presently practiced when it comes to managing the administrative state because the adoption of a proposed rule will no longer be based solely on the demonstration that its benefits exceed its costs. Instead before a rule is promulgated it will not only have to demonstrate as a necessary but not a sufficient condition that its benefits exceed its costs but it will also have to survive competition in an open forum as to its merits relative to other available proposed rules to even be considered for inclusion in a regulatory budget.
Far more wrenching is the fact that the magnitude of the net benefits of a proposed rule will not necessarily determine whether it is accorded a high ranking for inclusion in a regulatory budget because other social welfare functions may emerge, such as distributional considerations given the value laden construct of benefit-cost analysis as presently practiced.
A recent publication of Professor Richard Pierce of the George Washington University opens the door for a public debate of this issue when he concludes:
the gap between the goal of maximizing the net benefits of regulation as measured by cba and the goal of ensuring that agencies act in accordance with the preferences of the public, as those preferences are perceived by Congress, is likely to be as large as the gap between the goal of maximizing the net social benefits of regulation as measured by cba and ensuring that agencies act in accordance with the preferences of the public, as those preferences are perceived by the President.
