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Theodore's avatar

Having spent 15 years in civil service, I find a lot in this post to agree with. It is much, much too hard to do things in federal government. And I learn a lot from all your posts.

But I would urge you to take seriously the role of the courts in creating this mess. There are bad lawyers. But the good ones often are warning the agency about real hazards that can waste enormous amounts of agency effort. Go read a regulatory preamble from the 1970s. It’s a hoot. The agencies often took a few pages to say “here’s what we’re doing”, offered a minimal justification, and that was it. Now, a rulemaking is a multiyear saga, as the agencies jump through every hoop, and know the courts are at the end of the gauntlet. A lawyer who doesn’t warn the program staff what can happen if, say, you end up in front of a judge in ND Tex, is not doing their job. If you don’t document everything to the nth degree you are going to have to do it again. Period. An agency can spend hundreds of pages documenting its reasons, but if the court doesn’t like the way it handled a few comments? Do it over.

Maybe more importantly, recent cases are have made it so easy to sue - and to reopen longsettled decisions - that it’s almost malpractice if the private bar doesn’t tell their clients to sue. Was an agency rule upheld 15 years ago by a court that gave the agency Chevron deference? Find a business willing to serve as name plaintiff and sue - this time the agency gets no deference - and statute of limitations isn’t even a problem.

I don’t know who is tracking this, or how, but I’ll be shocked if there isn’t a rapid increase in litigation challenges - which takes up massive amounts of staff time and makes everybody more cautious. Don’t even get me started on the other signals courts have sent about where they might go. A lot of uncertainty raises transaction costs.

I’m not saying it’s the answer to go back to the 1970s. That was excessive the other way. But the courts are a deeply entrenched, massively powerful force that will create more and more and more transactional costs unless they are compelled to change. Don’t want scared bureaucrats who triple-check everything and write impossibly burdensome memos? Do something about the courts. If things stay as they are, and staff is cut, just wait and see how slow and ossified the govt is going to be - you ain’t seen nothin’ yet.

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Kevin's avatar

Sometimes, as a middle manager in a large organization, it helps to have a new guy come in, who's obviously a big jerk. Then you can kill that project which the people on your team love but it is taking half of your budget and you know it's never going to achieve any results. And blame the new guy, of course.

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