Whether a rule is cruel or kind, regulatory analysis shines a light

Whether you prefer to excoriate or celebrate the Trump administration’s new rule to strengthen work requirements for food stamp recipients, an aspect of the rule has gone unnoticed.

Advocates of the policy change claim that work requirements keep people motivated to stay in the workforce rather than rely on government assistance. Critics claim that the policy jeopardizes people who are not in the workforce for reasons beyond their control. Both sides, though, agree that fewer people will qualify for these benefits as a result of the change.

This rule is shaped by policy considerations that are undeniably political, reflecting wildly different world views about major social challenges. It is also an example of the way that long-standing, bipartisan principles of regulatory analysis shed much-needed light on government action.

In its final rule, the Agriculture Department, which runs the food stamp program, estimates that 688,000 people will lose eligibility for the Supplemental Nutrition Assistance Program (SNAP), which provides financial support for needy individuals and families to buy food.

It is the government’s own numbers that demonstrate what is perceived as either the cruelty or the genius of this rule. Whether you view this change as a step in the right or wrong direction, the government’s estimates are there for the public to see, and so is its methodology for calculating that number. In all of the noise, this is a signal.

The policies that require the government to show its work have been in place for decades, and they are guarded by the Office of Information and Regulatory Affairs (OIRA), a small office in the White House that is staffed almost entirely by career employees. OIRA reviews draft regulatory changes using a set of principles set out in an executive order signed by President Bill Clinton in 1993. In conducting its interagency review, OIRA draws upon the expertise of the entire federal government, including the attorneys of the Justice Department and others whose knowledge of government programs runs deep.

Critics sometimes blame OIRA when an agency makes analytical choices that strain credibility. Some even question whether OIRA or the analysis requirements they oversee, like cost-benefit analysis, are serving their purpose as a bulwark. But researchers have long understood that politics sometimes swamps dispassionate analysis when it comes to regulations.

The question is, how should we handle that reality? The process is not perfect, but it is definitely better than government by fiat. In our legal system, agencies are required to explain to the public what they propose, their authority to do it, and what the estimated effects will be. When agencies do it poorly, they can lose in court because the law requires agencies to justify their choices in writing.

OIRA review extracts information that agencies either simply leave out or actively omit. Judicial review and OIRA review are therefore twin features of the modern and expansive regulatory state. And this system has long been a beacon to the world, particularly because of its alternative.

Requiring agencies to show their work keeps them accountable to us all. It is a mistake to blame this system for controversial regulatory choices that sometimes result. Of course this wonky point provides no comfort to those concerned about what this latest regulatory change means for people who depend on SNAP. But it should give pause to anyone who would dismantle regulatory analysis or OIRA because of frustration about regulatory choices. As the SNAP rule demonstrates, the stakes are too high to leave regulatory choices in the dark.

Bridget C.E. Dooling is a research professor at the George Washington University Regulatory Studies Center. She served as a deputy chief, analyst, and attorney in the Office of Information and Regulatory Affairs at OMB from 2007 to 2018. Follow her on Twitter at @BridgetDooling.

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