Regulation

In Praise of the 'Deep State'

Trump's nominee for the office that vets regulations says the right things about career civil servants.

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Photographer: Saul Loeb/AFP/Getty Images

Amid the controversies dominating the news last week, hardly any attention was paid to the confirmation hearing for Neomi Rao, who was nominated by President Donald Trump to serve as administrator of the Office of Information and Regulatory Affairs. If confirmed, Rao, a law professor at George Mason University, will play a key role in overseeing federal regulation in areas such as environmental protection, food safety, health care, occupational safety and transportation policy. (I was privileged to head OIRA from 2009 to 2012.)

A paragraph in Rao’s opening statements deserves sustained applause:

Reading through OIRA’s statutory authorities as well as Executive Orders and OMB Guidance, I have been struck by the consistency of the principles guiding the work of the office across administrations. Perhaps this is one reason so many talented professionals work at OIRA and often stay for many years serving presidents of different parties.

The paragraph says two things that are in real tension with numerous comments from the Trump administration. First, it emphasizes continuity across administrations -- and pointedly rejects the idea that there have been radical breaks as the presidency changes hands. Second, it praises the “deep state” -- the talented professionals who serve both Democratic and Republican administrations, and who are civil servants rather than political appointees.

With respect to principles, Rao is entirely right. Whatever their differences, Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama have agreed on the importance of relying on the best available scientific evidence, of cataloging both costs and benefits, and (most important) of regulating when, and only when, the benefits justify the costs.

Sure, you can debate whether some of these administrations have paid enough attention to these principles. You can argue that they have violated them on important occasions. But principles do matter. As the French thinker François de La Rochefoucauld put it, “Hypocrisy is the tribute vice pays to virtue.” If Democratic and Republican presidents have embraced the same principles, it’s an excellent idea to take them seriously.

The Office of Information and Regulatory Affairs has about 45 civil servants, with a diversity of backgrounds; some are economists, some are lawyers, and some have degrees in public policy. All of them are highly experienced, and some have been there for decades.

They never push an ideological line, and they aren’t wedded to the status quo. When I headed OIRA, I had no idea whether my staff members were Democrats or Republicans.

Their major role was, and is, to provide and gather reliable information on regulation -- about the soundness of the agency’s supporting justification, about whether its approach would produce unacknowledged problems, about alternative approaches (including not regulating), about the accuracy of its assessment of costs and benefits, about the effects on small business and human health.

One of the staff’s favorite words is “analysis,” which refers to the technical grounds for any decision to regulate or not to regulate. Often analysis includes numbers: If a regulation is supposed to save lives, how many lives would it save? Two, or two thousand? If a regulation is supposed to cut costs, by how much, exactly?

In many cases, OIRA staff raised serious objections to regulations favored by powerful interest groups on both the left and the right, or even by high-level officials in the Obama administration. Thank goodness for that.

Sometimes their objections demonstrated that those regulations were a bad idea -- and, as a result, they were never issued. Sometimes their objections showed that the regulations could be greatly improved, perhaps by being scaled back, perhaps by being reoriented in some fundamental way. In many cases, the result was to increase public safety and to decrease the costs imposed on taxpayers (often by hundreds of millions of dollars).

OIRA’s staff members know that political officials, including the agency’s administrator and ultimately the president, are in charge. They follow orders (and they never leak). In that sense, they are unfailingly loyal to their bosses. But they also pride themselves on their concern for facts and the best scientific and economic thinking, and on their willingness to present fair counterarguments, even if they raise doubts about the views of the president himself.

There are occasions when it isn’t a ton of fun for the agency’s administrator to hear what the staffers have to say. But that’s hardly disloyalty.

On the contrary, it’s a big benefit for the American people. If the issue involves air pollution, opioids, occupational safety, or highway deaths (and in 2016, there were over 40,000), the central question is what approach would do more good than harm.

Instead of demonizing those who choose to work in the federal bureaucracy, we should be immensely grateful for their service. Neomi Rao appears to appreciate that point.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Cass R Sunstein at csunstein1@bloomberg.net

    To contact the editor responsible for this story:
    Katy Roberts at kroberts29@bloomberg.net

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