Having spent 15 years in civil service, I find a lot in this post to agree with. It is much, much too hard to do things in federal government. And I learn a lot from all your posts.
But I would urge you to take seriously the role of the courts in creating this mess. There are bad lawyers. But the good ones often are warning the agency abo…
Having spent 15 years in civil service, I find a lot in this post to agree with. It is much, much too hard to do things in federal government. And I learn a lot from all your posts.
But I would urge you to take seriously the role of the courts in creating this mess. There are bad lawyers. But the good ones often are warning the agency about real hazards that can waste enormous amounts of agency effort. Go read a regulatory preamble from the 1970s. It’s a hoot. The agencies often took a few pages to say “here’s what we’re doing”, offered a minimal justification, and that was it. Now, a rulemaking is a multiyear saga, as the agencies jump through every hoop, and know the courts are at the end of the gauntlet. A lawyer who doesn’t warn the program staff what can happen if, say, you end up in front of a judge in ND Tex, is not doing their job. If you don’t document everything to the nth degree you are going to have to do it again. Period. An agency can spend hundreds of pages documenting its reasons, but if the court doesn’t like the way it handled a few comments? Do it over.
Maybe more importantly, recent cases are have made it so easy to sue - and to reopen longsettled decisions - that it’s almost malpractice if the private bar doesn’t tell their clients to sue. Was an agency rule upheld 15 years ago by a court that gave the agency Chevron deference? Find a business willing to serve as name plaintiff and sue - this time the agency gets no deference - and statute of limitations isn’t even a problem.
I don’t know who is tracking this, or how, but I’ll be shocked if there isn’t a rapid increase in litigation challenges - which takes up massive amounts of staff time and makes everybody more cautious. Don’t even get me started on the other signals courts have sent about where they might go. A lot of uncertainty raises transaction costs.
I’m not saying it’s the answer to go back to the 1970s. That was excessive the other way. But the courts are a deeply entrenched, massively powerful force that will create more and more and more transactional costs unless they are compelled to change. Don’t want scared bureaucrats who triple-check everything and write impossibly burdensome memos? Do something about the courts. If things stay as they are, and staff is cut, just wait and see how slow and ossified the govt is going to be - you ain’t seen nothin’ yet.
Completely agree. Do you follow Nick Bagley from UMich? He writes about this and is my guru on the topic. Would love to hear more from you on this too.
We need an overhaul and simplification of stuff like the Administrative Procedure Act, reducing the "attack surface" for litigation challenging agencies' rules. You would think that the conservative legal establishment might like such a victory over trial lawyers, but at least right now, the conservatives think they have an opportunity to simply destroy the entire regulatory system, so they're not interested in a compromise that makes the regulatory system work better. They don't want clear, reasonable rules that are issued and updated at a reasonable pace. They want no rules.
There are hints in the Gorsuch concurrence of W. Va. v. EPA of a SCOTUS majority that would uphold the constitutionality of administrative rulemaking (but consistent with the "major questions" doctrine). It'd be nice to be litigating over the constitutionality of Congressionally-enacted laws, rather than broad administrative regulations which lack democratic accountability, such that the primary way to reform them is to catch the bureaucracy in some APA procedural error in court.
If they want those bills written by Congress, you'd imagine they would have written them when they controlled congress or at least proposed them or offered to compromise with Democrats on simplification, but clearly that's not what they want.
The recent preliminary injunction against the USDA’s SECURE rule is an example in my field. Important simplifying reform of the regulatory oversight of certain kinds of genetic modification of crops, well-known to be free of any reasonable risk, enacted over a 4 year period of careful deliberation by highly conscientious civil servants, got vacated by the court out because of the picayune legalistic objections of a gadfly/Luddite external group.
I'm a new state employee and I see this as well. The sheer volume of work and documentation I have to create to do something as simple as reconcile a month's worth of CC charges is staggering. But it's all part of a process that, I'm told...repeatedly, is designed to ensure compliance and minimize risk of fault arising from a potential audit. The absolute obsession with process to minimize risk to your program, department, and agency murders innovation/creativity in the crib.
And you see this in leadership too - there really isn't any initiative around increasing efficiency/streamlining workflows. Coming from private industry this remains the hardest thing for me to adjust to - leadership is very different. It's less about improving anything and more about just making sure it can actually get completed in a reasonable timeframe (while adhering to process/administrative manual/legislation).
And if you want to use new technology/software to help with this endeavor? Jesus.
I really disagree with this because from a systems perspective it is premised on the belief that a) every single action will get sued over and b) the only way to win is to have a very good case. But this lawyerly perspective fails to recognize that even a perfectly documented process that gets bogged down in a suit for multiple years has already lost.
Much better to just move and make lots of changes. Follow the law, but look for shortcuts at every step. If you deliver 100 projects and 50 get shutdown or restarted because of a lawsuit, that's a winning ratio. Much much much better than 10 mega-efforts that take years to get off the ground because of endless clearance. Risk management should include changing our appetite for risk and accepting a greater failure rate.
The government has plenty of lawyers. It's not a crime to keep them busy and we're not paying a retainer.
Well yeah - that’s my feeling of the situation as well but management doesn’t see it that way. Frankly many reports and podcasts (Statecraft is great on this) show that a lot of this isn’t actually necessary and that over long time periods legislation and rules were misinterpreted and yet these processes live on.
As for risk - the appetite seems to be different because of public scrutiny. Departments are always worried about admitting fault for anything for fear of public outrage/criticism and/or scrutiny from a controlling agency. Look at stuff like Solyndra, healthcare.gov launch, future gen, etc. The public exposure can be infinitely larger than a smaller private company/corporation. So you get this - a very risk averse environment designed to ensure responsibility for any fault not be on your program, department, agency, etc.
It's like the difference between SpaceX and Blue Origin. SpaceX launches, some fail, then they learn from mistakes and go on. Blue Origin hasn't yet launched New Glenn, they've been building it for 10 years and we're about to see tomorrow if their ten year efforts amount to much.
Have no experience in government but fully agree with the spirit of this comment. Move fast and be optimistic rather than spending tons of time dotting every "i" and crossing every "t" on fewer projects.
It's funny though - as someone who has been watching the SEC attack crypto, I very much have felt the opposite. I realize this industry is not universally loved, but at least for the sake of the discussion believe (1) there are serious people who see value in this technology (2) these serious people are not looking for no regulation - rather regulation that acutally makes sense for the technology at hand (e.g. not requiring properties that are fundamentally at odds with how the technology works) (3) the condemnation of the SEC has been bipartisan both in the courts and from legislators (please go look up the cases they've lost and the rebukes they've gotten - inclusive of shuttering the SLC office when they misrepresented facts to a court)
Personally, I've been frustrated on the SEC's unwillingness to work with folks who want to be good actors, or give clarity - and I had the feeling of "FAFO" when Chevron happened.
What are the bounding constraints on regulators who fail to provide clarity to external participants, accelerate rulemaking to avoid input from the public, routinely mischaracterize everyone in the industry as "hucksters, scam artists, fraudsters, ponzi scheme[r]s"?
From the gov't I can empathize with you feeling like you're mired by rules and regulations, but on the outside we do not have the weight of infinite tax dollars behind us to fight lawsuits from agencies that won't even provide clear rules folks can abide by.
Imho if bureaucrats want more responsibility (and I want an outcome oriented gov't!) it needs to be coupled with personal accountability and responsibility.
It should not be the case that an agency like the SEC can lose so many court cases (and be called arbitrary and capricious by the courts!) - causing millions of legal fees for an industry, because of one chair's personal vendetta. Maybe that accountability only happens at some leadership level - but I don't see how you can have one (which costs the bureaucrats nothing since its public funds, but is insanely expensive for private individuals and companies) without the other.
There's a tension here - you want to give more agency for folks to actually have an impact, but what recourse would you suggest for the people who are affected when a regulator decides to exert more power outside the bounds of the law?
I think that’s where elections come in - if there’s a change in leadership/direction then the freedom granted to gov would translate to faster change to reflect that. As is the incoming admin likely had no illusions about the difficulty they’re about to face - imagine if it was easier for them to implement stated goals and objectives.
Elections are unfortunately slow - and especially for agency positions they can have tenure that extends past an election (so what is the accountability for someone who abuses their role and power?)
4-5 years worth of lawsuits (free for the agency with tax dollars, bankruptcy/devastating for private entities) is not a reasonable outcome imho.
Personally I'd be much more onboard with giving more agency more remit - if there was more democratic checks on their power and some form of personal accountability for leadership (this may already exist - but if you are losing tons of court cases in a regulation by enforcement scheme this is an abuse of our tax dollars; if you're getting rebuked as arbitrary and capricious by judges even more so)
And to be clear - I think there's a bunch of routine stuff which I think is unobjectionably good for folks to have more efficiency, I guess I'm just stuck at how do you protect against the downside case? To me it doesn't even feel like a hypothetical given the last four years
Having spent 15 years in civil service, I find a lot in this post to agree with. It is much, much too hard to do things in federal government. And I learn a lot from all your posts.
But I would urge you to take seriously the role of the courts in creating this mess. There are bad lawyers. But the good ones often are warning the agency about real hazards that can waste enormous amounts of agency effort. Go read a regulatory preamble from the 1970s. It’s a hoot. The agencies often took a few pages to say “here’s what we’re doing”, offered a minimal justification, and that was it. Now, a rulemaking is a multiyear saga, as the agencies jump through every hoop, and know the courts are at the end of the gauntlet. A lawyer who doesn’t warn the program staff what can happen if, say, you end up in front of a judge in ND Tex, is not doing their job. If you don’t document everything to the nth degree you are going to have to do it again. Period. An agency can spend hundreds of pages documenting its reasons, but if the court doesn’t like the way it handled a few comments? Do it over.
Maybe more importantly, recent cases are have made it so easy to sue - and to reopen longsettled decisions - that it’s almost malpractice if the private bar doesn’t tell their clients to sue. Was an agency rule upheld 15 years ago by a court that gave the agency Chevron deference? Find a business willing to serve as name plaintiff and sue - this time the agency gets no deference - and statute of limitations isn’t even a problem.
I don’t know who is tracking this, or how, but I’ll be shocked if there isn’t a rapid increase in litigation challenges - which takes up massive amounts of staff time and makes everybody more cautious. Don’t even get me started on the other signals courts have sent about where they might go. A lot of uncertainty raises transaction costs.
I’m not saying it’s the answer to go back to the 1970s. That was excessive the other way. But the courts are a deeply entrenched, massively powerful force that will create more and more and more transactional costs unless they are compelled to change. Don’t want scared bureaucrats who triple-check everything and write impossibly burdensome memos? Do something about the courts. If things stay as they are, and staff is cut, just wait and see how slow and ossified the govt is going to be - you ain’t seen nothin’ yet.
Completely agree. Do you follow Nick Bagley from UMich? He writes about this and is my guru on the topic. Would love to hear more from you on this too.
We need an overhaul and simplification of stuff like the Administrative Procedure Act, reducing the "attack surface" for litigation challenging agencies' rules. You would think that the conservative legal establishment might like such a victory over trial lawyers, but at least right now, the conservatives think they have an opportunity to simply destroy the entire regulatory system, so they're not interested in a compromise that makes the regulatory system work better. They don't want clear, reasonable rules that are issued and updated at a reasonable pace. They want no rules.
There are hints in the Gorsuch concurrence of W. Va. v. EPA of a SCOTUS majority that would uphold the constitutionality of administrative rulemaking (but consistent with the "major questions" doctrine). It'd be nice to be litigating over the constitutionality of Congressionally-enacted laws, rather than broad administrative regulations which lack democratic accountability, such that the primary way to reform them is to catch the bureaucracy in some APA procedural error in court.
No, just by and large, they want those rules written by congress
And they don't want to bunch of discretion by the administrative state
If they want those bills written by Congress, you'd imagine they would have written them when they controlled congress or at least proposed them or offered to compromise with Democrats on simplification, but clearly that's not what they want.
“the conservatives think they have an opportunity to simply destroy the entire regulatory system…”.
Exactly. O
The recent preliminary injunction against the USDA’s SECURE rule is an example in my field. Important simplifying reform of the regulatory oversight of certain kinds of genetic modification of crops, well-known to be free of any reasonable risk, enacted over a 4 year period of careful deliberation by highly conscientious civil servants, got vacated by the court out because of the picayune legalistic objections of a gadfly/Luddite external group.
https://natlawreview.com/article/district-court-grants-summary-judgment-part-plaintiffs-vacating-and-remanding-final
One of thousands of such across all domains we can anticipate when DOGE starts getting real.
I'm a new state employee and I see this as well. The sheer volume of work and documentation I have to create to do something as simple as reconcile a month's worth of CC charges is staggering. But it's all part of a process that, I'm told...repeatedly, is designed to ensure compliance and minimize risk of fault arising from a potential audit. The absolute obsession with process to minimize risk to your program, department, and agency murders innovation/creativity in the crib.
And you see this in leadership too - there really isn't any initiative around increasing efficiency/streamlining workflows. Coming from private industry this remains the hardest thing for me to adjust to - leadership is very different. It's less about improving anything and more about just making sure it can actually get completed in a reasonable timeframe (while adhering to process/administrative manual/legislation).
And if you want to use new technology/software to help with this endeavor? Jesus.
Apologies for the typos. iPhone at lunch…
Isn't the solution to get actual legislation through congress?Instead of trying to do it through the administration street of state?
I really disagree with this because from a systems perspective it is premised on the belief that a) every single action will get sued over and b) the only way to win is to have a very good case. But this lawyerly perspective fails to recognize that even a perfectly documented process that gets bogged down in a suit for multiple years has already lost.
Much better to just move and make lots of changes. Follow the law, but look for shortcuts at every step. If you deliver 100 projects and 50 get shutdown or restarted because of a lawsuit, that's a winning ratio. Much much much better than 10 mega-efforts that take years to get off the ground because of endless clearance. Risk management should include changing our appetite for risk and accepting a greater failure rate.
The government has plenty of lawyers. It's not a crime to keep them busy and we're not paying a retainer.
Well yeah - that’s my feeling of the situation as well but management doesn’t see it that way. Frankly many reports and podcasts (Statecraft is great on this) show that a lot of this isn’t actually necessary and that over long time periods legislation and rules were misinterpreted and yet these processes live on.
As for risk - the appetite seems to be different because of public scrutiny. Departments are always worried about admitting fault for anything for fear of public outrage/criticism and/or scrutiny from a controlling agency. Look at stuff like Solyndra, healthcare.gov launch, future gen, etc. The public exposure can be infinitely larger than a smaller private company/corporation. So you get this - a very risk averse environment designed to ensure responsibility for any fault not be on your program, department, agency, etc.
It's like the difference between SpaceX and Blue Origin. SpaceX launches, some fail, then they learn from mistakes and go on. Blue Origin hasn't yet launched New Glenn, they've been building it for 10 years and we're about to see tomorrow if their ten year efforts amount to much.
Have no experience in government but fully agree with the spirit of this comment. Move fast and be optimistic rather than spending tons of time dotting every "i" and crossing every "t" on fewer projects.
It's funny though - as someone who has been watching the SEC attack crypto, I very much have felt the opposite. I realize this industry is not universally loved, but at least for the sake of the discussion believe (1) there are serious people who see value in this technology (2) these serious people are not looking for no regulation - rather regulation that acutally makes sense for the technology at hand (e.g. not requiring properties that are fundamentally at odds with how the technology works) (3) the condemnation of the SEC has been bipartisan both in the courts and from legislators (please go look up the cases they've lost and the rebukes they've gotten - inclusive of shuttering the SLC office when they misrepresented facts to a court)
Personally, I've been frustrated on the SEC's unwillingness to work with folks who want to be good actors, or give clarity - and I had the feeling of "FAFO" when Chevron happened.
What are the bounding constraints on regulators who fail to provide clarity to external participants, accelerate rulemaking to avoid input from the public, routinely mischaracterize everyone in the industry as "hucksters, scam artists, fraudsters, ponzi scheme[r]s"?
From the gov't I can empathize with you feeling like you're mired by rules and regulations, but on the outside we do not have the weight of infinite tax dollars behind us to fight lawsuits from agencies that won't even provide clear rules folks can abide by.
Imho if bureaucrats want more responsibility (and I want an outcome oriented gov't!) it needs to be coupled with personal accountability and responsibility.
It should not be the case that an agency like the SEC can lose so many court cases (and be called arbitrary and capricious by the courts!) - causing millions of legal fees for an industry, because of one chair's personal vendetta. Maybe that accountability only happens at some leadership level - but I don't see how you can have one (which costs the bureaucrats nothing since its public funds, but is insanely expensive for private individuals and companies) without the other.
There's a tension here - you want to give more agency for folks to actually have an impact, but what recourse would you suggest for the people who are affected when a regulator decides to exert more power outside the bounds of the law?
I think that’s where elections come in - if there’s a change in leadership/direction then the freedom granted to gov would translate to faster change to reflect that. As is the incoming admin likely had no illusions about the difficulty they’re about to face - imagine if it was easier for them to implement stated goals and objectives.
Elections are unfortunately slow - and especially for agency positions they can have tenure that extends past an election (so what is the accountability for someone who abuses their role and power?)
4-5 years worth of lawsuits (free for the agency with tax dollars, bankruptcy/devastating for private entities) is not a reasonable outcome imho.
Personally I'd be much more onboard with giving more agency more remit - if there was more democratic checks on their power and some form of personal accountability for leadership (this may already exist - but if you are losing tons of court cases in a regulation by enforcement scheme this is an abuse of our tax dollars; if you're getting rebuked as arbitrary and capricious by judges even more so)
And to be clear - I think there's a bunch of routine stuff which I think is unobjectionably good for folks to have more efficiency, I guess I'm just stuck at how do you protect against the downside case? To me it doesn't even feel like a hypothetical given the last four years