Five Recommendations for Improving Administrative Government

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Scholars and officials highlight recent recommendations for improving regulatory and administrative processes.

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The search for ways to improve how government works may have become a little easier lately, thanks to five recommendations recently issued by a distinctive public–private partnership known as the Administrative Conference of the United States (ACUS).

ACUS—which operates as an independent federal agency—brings together more than 100 experts from the public and private sectors to identify solutions to problems facing government agencies. At least twice each year, ACUS publishes recommendations on how officials should design and implement administrative processes and regulations to improve their ability to achieve desired outcomes.

ACUS’s recommendation process begins with its members seeking to identify pressing challenges or opportunities for improvement. The agency then assigns outside experts or agency staff to conduct research, prepare reports, and draft recommendations for consideration by committees of experts. Only after extended deliberations among ACUS’s governmental and nongovernmental members—at so-called plenary meetings—will the agency issue any recommendations.

Last December, ACUS published its latest series of five recommendations addressing topics as diverse as agency guidance, market-based regulatory instruments, plain English drafting, regulatory experimentation, and the use of waivers and exemptions. This series in The Regulatory Review includes five essays authored by leading public officials and scholars who were involved in the development of each of the five recent ACUS recommendations. Although the recommendations cover a range of subjects, they raise a series of common themes of good government—accountability, consistency, and the need for sound evidence.

The authors and coauthors of the essays include: Nicholas R. Parrillo, professor at Yale Law School; Lee Liberman Otis, Senior Vice President and Director of the Federalist Society’s Faculty Division; Blake Emerson, professor at the UCLA School of Law; Cary Coglianese, professor at the University of Pennsylvania Law School; Todd Rubin, attorney advisor at ACUS; Jason A. Schwartz, legal director at the Institute for Policy Integrity at NYU School of Law; H. Russell Frisby Jr., partner with Stinson Morrison Hecker LLP; E. Donald Elliott, senior of counsel at Covington & Burling LLP; Aaron L. Nielson, professor at Brigham Young University Law School; and Jennifer Nou, professor at the University of Chicago Law School.

The Regulatory Review is pleased to present this series of essays on ACUS’s latest recommendations.

Understanding and Addressing Controversies About Agency Guidance

March 5, 2018 | Nicholas R. Parrillo, Yale Law School, and Lee Liberman Otis, The Federalist Society

Although guidance is officially nonbinding, agencies are frequently under active and legitimate stakeholder pressure to be inflexible. An agency that departs from guidance in the case of one firm may put other firms at a competitive disadvantage and draw accusations of favoritism. The recent ACUS recommendation on agency guidance sets forth a series of measures to foster flexibility in the face of these challenges.

Using Plain Language to Draft Regulations

March 6, 2018 | Blake Emerson, UCLA School of Law

Plain language can advance core administrative law values, such as public participation in policymaking and the effective implementation of statutory goals. By identifying procedures and documentary formats that can advance those objectives, one of ACUS’s recent recommendations promises to deepen the federal government’s existing commitment to an effective and accountable administrative process.

Learning What Works in Regulation

March 7, 2018 | Cary Coglianese, University of Pennsylvania Law School, and Todd Rubin, ACUS

Government officials increasingly recognize the value in experimentation and evaluation when it comes to a variety of government programs. The stakes to society are often high for regulation, so it makes sense for government agencies to test and measure the impact of the rules they impose on the economy. ACUS’s recent recommendation on Learning from Regulatory Experience can help regulatory agencies think more carefully and systematically about making their regulations work better.

Regulating Marketable Permits

March 8, 2018 | Jason A. Schwartz, NYU School of Law, H. Russell Frisby, Jr., Stinson Morrison Hecker LLP, and E. Donald Elliott, Covington and Burling LLP

Billions of dollars’ worth of government permits are auctioned or traded in a wide variety of industries, from broadcasting to construction to fishing. The intended goals of marketable regulatory permits include lowering compliance costs, encouraging innovation, and easing administrative burdens. ACUS’s recent recommendations can help guide agencies on how to use marketable permits to harness the efficient decision-making powers of the market without undermining policy goals.

How Agencies Should Use Waivers and Exemptions

March 9, 2018 | Aaron L. Nielson, Brigham Young University Law School, and Jennifer Nou, University of Chicago Law School

Waivers and exemptions present a significant challenge: agencies often need to grant flexibility when circumstances require, but when abused they may result in arbitrariness and unfairness. How and when agencies use these tools is the subject of a set of recommendations recently adopted by ACUS.