Codifying the Cost-Benefit State

September 13, 2019

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Almost fifty years of presidential direction and agency practice, combined with ten years of increasing encouragement from the Supreme Court, suggest that the cost-benefit state has not only arrived, but is well past its introductory season. Benefit-cost balancing is now a dominant paradigm in administrative law for evaluating federal agencies’ exercise of delegated regulatory discretion. In response to increased scrutiny upon judicial review, agencies have taken steps to firm up their benefit-cost analyses. Despite multiple Executive Orders and supplementary guidance, neither executive nor legislative action has produced a clear set of justiciable standards against which courts can evaluate agency analyses for adequacy. The time might be right to develop judicially-enforceable, government-wide standards for the use of benefit-cost analysis in rulemaking. In this article we focus on the executive’s authority to write a cross-government “rule-on-rules” to govern regulatory analysis, including benefit-cost analysis and the courts’ authority to enforce such a rule.