Sunstein on Breyer on Reasoned Decision-making

Cass Sunstein has a nice short essay on Justice Breyer in a forthcoming issue of the Harvard Law Review, "From Technocrat to Democrat":

There is an epistemic argument for judicial deference to the decisions of administrative agencies and legislatures: courts do not have easy access to relevant information, and they should defer to those who do. People who are steeped in technical issues, and alert to the importance of those issues, might well be inclined to embrace judicial modesty. In administrative law, then-Professor Stephen Breyer pioneered the view that judge-made doctrines reflect unarticulated assumptions about regulatory policy, and he urged that such doctrines could not be evaluated without a sense of the underlying substance and the likely human consequences. In light of the complexity of the substance, Breyer argued for a degree of modesty. On the Supreme Court, Justice Breyer has often embraced judicial modesty as well, emphasizing the importance and relevance of complex judgments of fact (sometimes with the aid of what we might call "the Breyer Appendix"). The principal qualification is his insistence on reasoned decision making, which he appears to regard as a quid pro quo for deference, as an aspect of the rule of law, and as an indispensable check on arbitrariness.

Reasoned decision-making as a condition precedent to deference is an increasingly attractive proposition in Canada, where affidavits and agency litigating positions can be used to place a decision-maker's thumb on the interpretive scales. 

To borrow from Sunstein:

The most important point here is that an agency may not defend its policy simply by asserting its preference. It has to offer reasons. To be sure, there is a risk that a judicial demand for reasoned decision making will serve, in practice, as a judicial demand for reasons with which judges agree...Nonetheless, a requirement of reason-giving can be seen as an effort to ensure that technical expertise is in fact being applied...

As Sunstein suggests, the presence of a reasoned decision may be a good proxy for the application of administrative expertise. It is interesting that the recent decline in importance of relative expertise in Canadian doctrine has coincided with the decline in importance of reasoned decision-making.

Keeping a Close Eye on the Tsar

A provincial Irish newspaper called the Skibbereen Eagle famously concluded an editorial on European politics by noting that it would be keeping a close eye on the Tsar of Russia.

There is nothing provincial about the accomplished Lisa Heinzerling, but she has nonetheless been keeping a close eye on President Obama's former regulatory Tsar, Cass Sunstein. Sunstein wrote an essay recently recounting his experiences as head of the Office of Information and Regulatory Affairs. Heinzerling has now posted an engaging and important response based on her time in the Environmental Protection Agency:

The Obama administration has continued and deepened a longstanding practice of White House control over rules developed by the Environmental Protection Agency (EPA), with cost-benefit analysis as the guiding framework. The Office of Information and Regulatory Affairs (OIRA) is the central player in this structure: it reviews, under a cost-benefit rubric, all agency rules that it deems “significant” under executive orders mandating this review. EPA rules deemed significant by OIRA are not issued without OIRA’s imprimatur.

As I explain in this article, OIRA’s actual practice in reviewing agency rules departs considerably from the structure created by the executive orders governing OIRA’s process of regulatory review. The distribution of decision-making authority is ad hoc and chaotic rather than predictable and ordered; the rules reviewed are mostly not economically significant but rather, in many cases, are merely of special interest to OIRA staffers; rules fail OIRA review for a variety of reasons, some extra-legal and some simply mysterious; there are no longer any meaningful deadlines for OIRA review; and OIRA does not follow – or allow agencies to follow – most of the transparency requirements of the relevant executive order.

Describing the OIRA process as it actually operates today goes a long way toward previewing the substantive problems with it. The process is utterly opaque. It rests on assertions of decision-making authority that are inconsistent with the statutes the agencies administer. The process diffuses power to such an extent – acceding, depending on the situation, to the views of other Cabinet officers, career staff in other agencies, White House economic offices, members of Congress, the White House Chief of Staff, OIRA career staff, and many more – that at the end of the day no one is accountable for the results it demands (or blocks, in the case of the many rules stalled at OIRA). And, through it all, environmental rules are especially hard hit, from the number of such rules reviewed to the scrutiny they receive to the changes they suffer in the course of the process.

My main project here is descriptive. Misunderstandings of the OIRA process abound. Too often these misunderstandings are perpetuated by, or not contradicted by, the very personnel who have been involved in the process. I hope that the descriptive account I provide here, aimed at correcting the misimpressions that have grown up around OIRA review, will help to renew the debate over the role of OIRA and the larger White House in agency rulemaking.

You can download "Inside EPA: A Former Insider's Reflections on the Relationship between the Obama EPA and the Obama White House" here. 

Regulatory Moneyball, Values and Cost-Benefit Analysis

Cass Sunstein has been whetting appetites for his new book, Simpler: the Future of Government (out April 9) by doling out tasty samples of its content (see e.g. here and here). One of these is an essay for Foreign Affairs, "Regulatory Moneyball". The title is borrowed from Michael Lewis' superb Moneyball: the Art of Winning in an Unfair Game, about Billy Beane's use of statistics to get the jump on baseball clubs who relied on hunches and instinct.

Cass Sunstein on OIRA

I linked in passing in Saturday's post to Cass Sunstein's very interesting article on OIRA, The Office of Information and Regulatory Affairs: Myths and Realities. Here is the abstract:

Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget (OMB), has become a well-established institution within the Executive Office of the President. This essay, based on public documents and the author’s experience as OIRA Administrator from 2009-2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role. Perhaps above all, OIRA operates as an information-aggregator. One of OIRA’s chief functions is to collect widely dispersed information – information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus on them (as do others within the Executive Branch, particularly the National Economic Council and the Council of Economic Advisers), above all in the case of economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA’s day-to-day work is devoted to helping agencies to work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role.

I had plenty of misconceptions about OIRA's role before reading Sunstein's piece, particularly about the relative importance of cost-benefit analysis, and am now much the wiser!