Government Efficiency: A Critical Consideration for Deregulation
Harvard Law professor Cass Sunstein has outlined a concise list of six factors that are essential for individuals working in a Department of Government Efficiency to take into account. These factors play a crucial role in the process of deregulation and should not be overlooked. Ignoring Sunstein’s list could have detrimental consequences for those seeking to streamline regulatory frameworks.
While Sunstein’s list is valuable, there is one significant aspect that he fails to address, but which holds immense importance in the context of deregulation efforts. This additional factor could potentially make the process of deregulation significantly more straightforward than anticipated.
Recently, attorney Chris Horner highlighted this crucial seventh factor in an op-ed published in the Wall Street Journal on November 17, 2024. The op-ed, titled “Trump Will Want to ‘Confess Error’,” sheds light on a pivotal aspect that can expedite deregulatory actions.
Horner emphasizes that government agencies are prohibited from providing false justifications for implementing regulations, a principle known as the rule against pretext. Despite this prohibition, instances of agencies misleading the public to enforce regulations have been observed. For example, EPA Administrator Michael Regan has been known to utilize unrelated authorities to advance climate change objectives, leading to the closure of certain plants.
Horner suggests that reviewing internal agency records to identify instances of pretextual rulemakings and other irregularities can pave the way for expedited deregulation. By acknowledging and rectifying these improprieties in court through a practice known as “confessing error,” the new administration can rectify egregious regulatory overreach.
Confessing error involves government attorneys admitting legal missteps and advocating for the annulment of erroneous agency decisions. This approach, supported by documented evidence of wrongdoing, can garner judicial acceptance and facilitate the swift reversal of misguided regulations.
Therefore, if past regulations were established on false premises or through deceptive means, leveraging the strategy of confessing error could streamline the deregulation process significantly. This tactic offers a potential shortcut in dismantling unnecessary regulatory burdens and fostering a more efficient governance framework.
It remains unclear how frequently this strategy has been employed in the past, but its efficacy in expediting deregulatory efforts underscores its significance in the realm of government efficiency.
