Editor’s Note: This post should be read in conjunction with this page.
Background
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 continually on the management of the administrative state. By management of the administrative state we mean the processes which not only govern how decisions are made but also the processes governing which decisions are made and who makes them.
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 which provides the mechanism for expanding OIRA’s mandate. These process changes are controversial; they continue to be the subject of review by each of the aforementioned professions and have been augmented by these select 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 perfecting the methodologies for conducting benefit-cost analysis (but not the requirement to perform benefit/cost analyses), the three aforementioned disciplines 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 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) improving 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 dealing with regulatory matters by delineating a specific role for OIRA and (3) the initiation of a public debate on the continuance of a mechanism which would allows policymakers to control the size of the administrative state through the use of a regulatory budget. In particular a regulatory budget allows OIRA to become proactive instead of reactive by developing government-wide programs to address a specific problem such as a pandemic.
Based upon a historical review of their publications to date it is not obvious that any of the three aforementioned professions which traditionally have emphasized the study of the 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 recommendations.
Successful regulatory practitioners possess an intricate knowledge of the management of the administrative state through constant interventions in rulemakings sponsored by executive branch agencies; successful members of the legal academy possess a detailed, but very different, knowledge of the management of the administrative state through in-depth penetrations of agency operations through the doors of the judicial branch. Notwithstanding the laudable contributions of these two groups by in large they have not participated in developing management mechanisms for the administrative state because they have little interest in the historical development of centralized regulatory review.
The failure to emphasize the importance of understanding and appreciating the historical development of centralized regulatory review is apparent when political appointees to executive branch agencies from either of the aforementioned professions believe that the mere signing of an Executive Order in itself will result in meaningful improvements. This shortsightedness occurs because of the failure to recognize that in the absence of civil service entrepreneurs who have a passion for constructing and installing the supporting modular building blocks on a continual basis over an extended period of time that an executive order will not be institutionalized in the administrative state; see for example the first four paragraphs of this post.
The above conclusions argue that the first officer in the cockpit of the regulatory state should (1) be sensitive to instituting long term changes and (2) be focused on utilizing a managerial mechanism which maximizes net social benefits, however measured, of a government-wide regulatory program as opposed to one limited to the individual review of the very small number of ” significant” regulations.
The posts which follow the initial post on this website are a written description of the particular events or phenomena which characterize the establishment of centralized regulatory review over the past half century. The aforementioned descriptions are limited to a total of two dozen and are presented in the middle column of the homepage in a decreasing order of significance; substitutions are made when with the passage of time historical reviews demand that other actions be recognized and the relevant substitutions be placed on the homepage.
Each entry on the aforementioned page in itself is not a management principle but collectively they allow each reader to develop their own set of principles depending on their assessment of each entry presented therein.
