A Note on "Government Efficiency"

There is a major focus these days on the topic of government efficiency, spurred by the creation of what is being called a “Department of Government Efficiency.” I have had the good fortune of being involved in simplification of government, and reduction of paperwork and regulatory burdens, in various capacities, and here are six quick and general notations.

1. The Administrative Procedure Act is central to the relevant project. It needs to be mastered. It offers opportunities and obstacles. No one (not even the president) can clap and eliminate regulations. It’s important to know the differences among IFRs, TFRs, NPRMs, FRs, and RFIs. (The best of the bunch, for making rules or eliminating rules: FRs. They are final rules.)
2. The Paperwork Reduction Act needs to be mastered. There is far too much out there in the way of administrative barriers and burdens. The PRA is the route for eliminating them. There’s a process there.
3. The Office of Information and Regulatory Affairs is, for many purposes, the key actor here. (I headed the office from 2009-2012.) A reduce-the-regulations effort probably has to go through that Office. Its civil servants have a ton of expertise. They could generate a bunch of ideas in a short time.
4. It is important to distinguish between the flow of new burdens and regulations and the stock of old ones. They need different processes. The flow is a bit easier to handle than the stock.
5. The law, as enacted by Congress, leaves the executive branch with a lot of flexibility, but also imposes a lot of constraints. Some of the stock is mandatory. Some of the flow is mandatory. It is essential to get clarity on the details there.
6. The courts! It’s not right to say that recent Supreme Court decisions give the executive branch a blank check here. In some ways, they impose new obstacles. Any new administration needs a full understanding of Loper Bright, the major questions doctrine, Seila Law, and much more (jargon, I know, I know).

by Cass Sunstein, Substack |  Read more:

[ed. See also: Regulating Sausages (MR): "In the comments on Sunstein on DOGE many people argued that regulations were mostly about safety."

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[ed. I would agree that's a large part of it. Something bad happens and instead of making institutional and/or supervisory changes that would keep the bad thing from happening again ("you're reassigned; don't ever let that happen again!), we get regulations (ie. legal statements of intent and ass-covering). But that's just one part of what could be called burdensome regulatory oversight. Here are a few other thoughts, just off the top of my head:

• Evolution: We learn more over time (scientifically, socially, legally, etc.) so adjustments are needed to achieve original and sometimes enhanced versions of a subject objective. Also, new developments arise (Internet, cybercrime, AI, financial instruments, 5G networks, etc. etc.) requiring new rules where previously none existed.

• Politics: Covers a lot of territory. Payback for campaign donations; support for home-state industries; alignment with voting constituency and issues; etc. etc. Lots of granularity in how this category is applied (to the benefit of politicians/political causes).

• Lobbying: Corporations (and others) lobby for regulations all the time to secure niche advantages over competitors; provide legal cover; maintain economic and industry dominance, etc. etc. That's the whole raison d'etre lobbyists exist.
  

• Social Programs: Social Security, Medicare/Medicaid, EBT, FEMA, Immigration, Defense. All massive items widely supported by the majority of the population (and which, along with interest payments on the national debt, constitute the bulk of annual federal spending). Cut with caution.

• Other: Wide range of regulations for anything and everything else: highway standards; consumer protection; NGO contracts; scientific advances; copyright; trade benefits; and so on. Not a significant proportion of the national budget but still entangled both widely and deeply with other programs/priorities.

So, after a few spectacular shots (defund the DOE! NPR!) with subsequent legal challenges, I don't personally see much getting accomplished, other than just making government more inefficient and dysfunctional than it already is. There are too many embeded interests, with constituencies for everything. As noted in this recent NYT column: "an inclination to destroy something is not evidence of an ability to manage it, or reform it, or improve it — quite the contrary.”  Plus, there's this.