Federal Emergency Powers in a Pandemic

President Trump has proven oddly reluctant to make full use of federal emergency powers during the coronavirus pandemic. The reasons for the delay are puzzling, given his enthusiasm for using emergency powers in other settings. Fortunately, the harm caused by his lackluster response to the coronavirus has been somewhat mitigated by the decentralized nature of the U.S. federal system for addressing epidemics. Where the federal government has faltered, state governments have stepped up to address the challenge with social distancing orders and stay-at-home orders. […]

Agencies as Adversaries

Conflict between agencies and outsiders—whether private stakeholders, state governments, or Congress—is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s administration, there was the battle between the Federal Bureau of Investigation and the Department of […]

Breaking Bad? The Uneasy Case for Regulatory Breakeven Analysis

Often regulatory benefits can be hard to quantify because they deal with harms that are not traded in markets or because the probability of harm is not well understood. Breakeven analysis offers one plausible way of addressing the problem. But it is no panacea. It may fail to improve the rationality of decisions, especially in […]