The Peak of Trump’s Fact-Free Vendetta Against Regulation
Lo and behold, that started to happen during the presidency of Barack Obama. Obama’s OIRA administrator, Cass Sunstein, broadened cost-benefit’s scope to include, for instance, the calculation of benefits to people living outside the United States, and to assign a (human) cost to the release into the atmosphere of carbon ($21.40 per metric ton). You can guess what happened next. “As economists got better at measuring the benefits of regulation,” Stuart Shapiro, a onetime OIRA analyst and now professor of public policy at Rutgers, observes in The Regulatory Review, “benefit-cost analysis began to be seen as a tool that supported more stringent regulation of the economy.”
How committed, really, are Republicans to cost-benefit analysis? In 2019, Berkeley law professor Daniel Farber, author of the classic 1986 New Republic essay “The Case Against Brilliance,” found a way to measure this, and if it wasn’t brilliant, it was certainly shrewd. In 2017, a Republican Congress had used expedited procedures under the Congressional Review Act, or CRA, to eliminate 14 Obama-era regulations. To what extent, Farber asked, did Congress rely on cost-benefit analysis in selecting regulations to kill off?
The pool of regulations eligible to block was limited to those passed at the tail end of Obama’s presidency, so Farber looked only at those. What he found was that the regulations Congress targeted through proposed CRA resolutions corresponded not at all with OIRA cost-benefit analyses. Indeed, fully one-third of the regulations that members of Congress sought to eliminate had no OIRA cost-benefit analysis at all, because their economic impact was too slight. Among major rules eligible for elimination, most never even got considered, even though they came with cost-benefit analyses. And among those regulations that were considered, minor ones were repealed at twice the rate of major ones.
