[National Affairs] The Next Phase of Regulatory Reform

on regulatory reform and theories of regulation

The Next Phase of Regulatory Reform

https://www.nationalaffairs.com/publications/detail/the-next-phase-of-regulatory-reform

excerpt:

Whatever arguments the next generation of regulatory reformers bring to the table, it's important that they acknowledge how factors like ideology, sense of purpose, and sense of identity are often more important drivers of regulation than almost anything else. When one's sense of status and identity are wrapped up in a cause, no amount of proof will change that person's beliefs. This is why, regardless of whatever lip service might be paid to evidence-based regulation today, empirical analysis is often absent from actual decisions.

One example of such evidence-free regulation in recent years comes from the Department of Health and Human Services (HHS). In 2021, HHS repealed a rule enacted by the Trump administration that would have required the agency to periodically review its regulations for their impact on small businesses. The measure was known as the SUNSET rule because it would attach sunset provisions, or expiration dates, to department rules. If the agency failed to conduct a review, the regulation expired.

Ironically, in proposing to rescind the SUNSET rule, HHS argued that it would be too time consuming and burdensome for the agency to review all of its regulations. Citing almost no academic work in support of its proposed repeal — a reflection of the anti-consequentialism that animates so much contemporary regulatory policy — the agency effectively asserted that assessing the real-world consequences of its existing rules was far less pressing an issue than addressing the perceived problems of the day (by, of course, issuing more regulations).

Through its actions, HHS has rejected the very notion of having to review its own rules and assess whether they work. In fact, the suggestion that agencies review their regulations is an almost inexplicably divisive issue in Washington today. "Retrospective review" has become a dirty term, while cost-benefit analysis has morphed into a tool to judge intentions rather than predict real-world consequences. The shift highlights how far the modern administrative state has drifted from the rational, evidence-based system envisioned by the law-and-economics movement just a few decades ago.

In today's administrative state, intellectual fads appear to be in the driver's seat, while science and economics are simply along for the ride. Despite pronouncements to the contrary, few intellectuals seem genuinely interested in "following the science": Too many have their careers, social status, and sense of personal identity wrapped up in perpetuating the status quo.
​

more at the link