Betwixt the Cup and the Lip
Implementation is the key to success in any project.
What Is Lost During State Implementation of Federal Law?
The coming regulatory disruption is going to have wildly disproportionate effects in different states. The differences in governance between the red states (Florida) and the blue states (California) are going to get much larger.
‘In a forthcoming article, Anthony B. Derron, a Harry A. Bigelow Fellow and Lecturer in Law at the University of Chicago Law School, argues that unwritten state laws undermine the success of federal programs and agency decision-making. Through examples draw from across the United States, Derron illustrates how the unwritten and underspecified nature of state administrative law leaves regulated entities, the public, and federal counterparts in the dark.
‘Derron notes that states are responsible for nearly 90 percent of the implementation and enforcement of federal programs. He explains that states should have legal frameworks that balance federal standards with local needs when implementing federal programs. These legal frameworks—which federal law assumes are in place—would specify, for example, how state agencies decide who receives a permit, when enforcement action is warranted, and where policy is needed, he notes. Derron’s research uncovers that state administrative law often lacks this specificity.’
The End of Bureaucracy — How Leadership Must Evolve in the Age of Artificial Intelligence
Leaders are going to need an entirely different skillset as AI disrupts the control mentality inherent in bureaucratic structures. Soft skills, indeed.
‘If there's one enduring lesson from my career, it's this: Bureaucracy is the enemy of innovation. It stifles creativity, clogs decision-making and traps bold ideas in endless loops of approvals. Bureaucracy wasn't designed to foster progress — it was built to maintain control.’
Meanwhile in India …
‘On Saturday, the GST Council recommended 5% GST on salted popcorn, 12% on pre-packaged and labelled popcorn, and 18% on caramel popcorn. The move sparked widespread reactions, with many blasting Finance Minister Nirmala Sitharaman.
‘Pai said this was "silly and complex" and it "will lead to tax terrorism". Tagging Prime Minister Narendra Modi and Sitharaman, Pai said the citizens are becoming victims of "bad policy" which will make them "hostages to rent-seeking officials and create disputes". "GST needs to be simplified, not this."’
Building codes are getting more efficient at becoming complex.
‘Building code rules can add significantly to the cost of constructing new housing. Codes have ballooned in length and complexity, especially of late: A 2022 trade association member survey found that building code changes adopted just since 2012 account for 11 percent of the cost of building new apartments (Emrath and Walter 2022). Some building code requirements that deviate from international norms are beginning to draw scrutiny. A long-standing rule in place in most US communities requires apartment buildings over three stories to have two staircases. In most other countries, including those with death rates from fire well below the United States, taller multifamily buildings can be built around a single staircase, allowing for more efficient floorplans (Eliason 2021).’
Vivek may concede the loss on the spending continuing resolution. But don’t think he hasn’t learned. Here’s Tyler Cowen on the first skirmish.
‘I very much hope DOGE makes progress on its key issues — excess regulation and spending — but political change is tough and requires some highly unusual and idiosyncratic skills. Keep also in mind that while Trump has a mandate to attack Woke and secure the border, voters seem far less excited by cutting back on government spending and regulation (if anything the opposite?). Government spending is what “makes Washington go round,” and Reps love it, no matter what they may say in some of their more manufactured moments. So DOGE strategy will need to adjust accordingly.’
How Much of the Regulatory State is Safe Post–Loper Bright?
It will take years for Lopez to be understood in practice.
‘Lower courts are now implementing that stare decisis instruction. In doing so, they have differed in their interpretations of Chief Justice Roberts’s sparse instruction. Those differences will determine how many long-settled regulations will be up for grabs, or even if Chevron can live on after death. In a forthcoming piece outlining possible approaches to Chevron precedents, Professor Jonathan Remy Nash argues that stare decisis for Chevron decisions in any form will produce inconsistency as those agencies lucky enough to have had their interpretations judicially reviewed under Chevron will enjoy different interpretive privileges than the rest.
‘So how have lower courts been approaching Loper Bright’s statutory stare decisis instruction? Two case studies from the Ninth and Sixth Circuits reveal the tension between a narrow reading of Loper Bright — that only “specific agency actions” upheld under Chevron are safe — and a broader reading of Chief Justice Roberts’s instruction that would account for Loper Bright’s worry about agency flip-flopping, the Court’s “congressional acquiescence” justification for statutory stare decisis, and the reliance rationale for regular stare decisis. Those three concerns are important to weigh against Professor Nash’s inconsistency concern. Although only one lower court has discussed congressional acquiescence in-depth at all post–Loper Bright, the appropriate application of the stare decisis instruction is a principled rather than mechanical one.
‘Where lower courts come out will also impact the incoming Trump Administration’s plans to roll back or modify a host of regulations. Applying the Ninth Circuit’s view in Lopez v. Garland (described below) would permit agencies to have one last chance to flip-flop on their interpretation of a statute, while locking in that switch as the “best” interpretation of the statute, as Judge Benjamin Beaton of the U.S. District Court for the Western District of Kentucky indicated at a conference last month.’
DOGE Recommendations: Slash Federal Health Care Regulation
Cato is everywhere making recommendations to DOGE. Here they are on healthcare.
Ramaswamy’s specific expertise in the sector could prove interesting.
‘Individuals have a right to self-medicate, choose their health care providers, and choose whether and how to pool medical expenses with others. When the government respects these rights, health care becomes more universal as a matter of course. Prices fall, owing to market innovation and competition. Quality improves as new treatments and insurance designs make health care better and more secure. The Food and Drug Administration (FDA), the Center for Consumer Information and Insurance Oversight (CCIIO), and other federal and state agencies violate these fundamental human rights.
‘The results are higher prices and lower quality health care (i.e., less-universal health care). The FDA blocks access to essential medicines and requires patients to get unnecessary prescriptions. Cost–benefit analyses consistently find that, at the margin, FDA regulation on balance harms patient health. The CCIIO enforces regulations that increase insurance premiums and ration care until, as President Biden’s economic adviser Michael Geruso admits, even “currently healthy consumers cannot be adequately insured.” State licensing regulations block patients from accessing top doctors across the country.’