Welcome to the Gray Center’s Policy Brief Series, a collection of short articles on timely topics related to the administrative state. The Gray Center is an open forum for vibrant debate, so the Center takes no institutional positions on the issues discussed in the papers that it publishes or the conferences that it organizes. All views expressed in Policy Briefs and other materials reflect only the views of the authors.
February 23, 2022
A Fresh Start: How to Address Regulations Suspended during the Coronavirus Crisis
Patrick A. McLaughlin, Senior Research Fellow & Director of Policy Analytics, Mercatus Center at George Mason University
Matthew D. Mitchell, Senior Research Fellow & Director of the Equal Liberty Initiative, Mercatus Center at George Mason University
Adam Thierer, Senior Research Fellow, Mercatus Center at George Mason University
Executive Summary: Theoretically, regulations can move markets in a more socially efficient or socially just direction by imposing rules over entry, quantity, price, input sourcing, advertising, disclosures, or business operations and technolo- gies. Unfortunately, while each of these tools can move a market in a more just or efficient direction, each may also be used to push it in a less just or less efficient direction. Because organized and informed special interests wield outsized influence over the regulatory process and because regulations accumulate without retrospective review, bad rules can persist for years or even decades. In this paper, we draw lessons from a successful reform effort—the Base Realignment and Closure (or BRAC) commission—to suggest one way to separate the bad rules from the good ones. We suggest that this process may be particularly valuable in evaluating the rules that were eased, modified, or suspended during the COVID-19 crisis.
February 3, 2022
Returning the Communications Decency Act to Its Text and Purpose: The NTIA Section 230 Petition
Adam Candeub, Professor of Law & Director of the Intellectual Property, Information, & Communications Law Program, Michigan State University College of Law
Executive Summary: Following common law, section 230(c)(1) exempts internet platforms from legal liability created by statements their users post. But, thanks to unwarranted statutory interpretation, courts have expanded section 230(c)(1) beyond its common law and textual moorings in two ways: (i) reading the provision to give the platforms absolute immunity–including from knowingly distributing unlawful content and (ii) ruling that section 230 protects against the platforms’ own editorial decisions—as opposed to the editorial decision of their users. Courts have criticized this expansion as without basis in statutory text, legislative history, or congressional intent or purpose—let alone any conceivable policy justification. This judicial expansion of section 230 allows the platforms to turn a blind eye to sex trafficking, obscenity, terrorism, and other sorts of unlawful content. The judicial expansion also allows the platforms to remove users and their content in violation of civil rights, consumer fraud, and contract law. The Trump Executive Order 13925 (E.O. 13925) directed the National Telecommunications & Information Authority (NTIA) to petition the Federal Communications Commission (FCC) to implement regulations to correct judicial misinterpretations of section 230. Successful in demonstrating to the FCC that it had authority to issue these regulations, the NTIA Petition sets forth the roadmap for section 230 reform that can protect users and promote free speech online.
January 19, 2022
Examining the Term “Waters of The United States” in Its Historical Context
Susan Parker Bodine, Former Assistant Administrator of the U.S. Environmental Protection Agency
Executive Summary: No statute pursues its objective at all costs. Congress is far more chary when granting authority to administrative agencies. Yet, many judges have relied on the goals of the Clean Water Act when interpreting the definition of “navigable waters.” Adopting the same approach, in 2015 EPA even relied on scientific studies of dispersal of biological material through animals and birds to help support a broad definition of “water of the United States.” This purposive approach to Clean Water Act jurisdiction is not supported by the text, structure, or historical context of the Clean Water Act.
March 10, 2021
Quick Actions to Improve Recruitment, Hiring, and Accountability in the Federal Workforce
Jeffrey Salmon, Visiting Assistant Professor of Government, Claremont McKenna College
Executive Summary: Over the last many years, prestigious commissions have concluded that the Federal civil service needs fundamental reform. However, their proposals confront massive barriers—union obstinance and a requirement for legislative, executive, or judicial branch concurrence. But reform need not pause until these barriers are overcome. This essay explores the potential benefits of a far more aggressive use of term appointments, Schedule A hiring authority, and enhancing agency control over its executive core by empowering Executive Resources Boards. Each measure is within federal agencies’ prerogative, no asking mother-may-I, and if implemented aggressively, can have a positive impact on the federal workforce.
August 19, 2020
Takeaways from the Conference on the Future of White House Regulatory Oversight and Cost-Benefit Analysis
Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, the George Washington University Law School
Executive Summary: On September 13, 2019, the C. Boyden Gray Center for the Study of the Administrative State hosted a conference on the future of White House regulatory oversight and cost-benefit analysis (CBA). This essay is my attempt to summarize the main issues that were discussed at the conference and my views on each of those issues. I divide the issues into three categories: reasons for celebration, reasons for concern and serious questions that need to be addressed.
August 12, 2020
Civil Service: Pulling In or Pushing Away
Sally Katzen, Professor of Practice and Distinguished Scholar in Residence at NYU School of Law, and Senior Distinguished Fellow at the C. Boyden Gray Center for the Study of the Administrative State