Deregulation Using Stealth 'Science' Strategies

80 Pages Posted: 7 May 2019 Last revised: 13 May 2020

See all articles by Thomas Owen McGarity

Thomas Owen McGarity

University of Texas at Austin - School of Law

Wendy E. Wagner

University of Texas at Austin – School of Law

Date Written: April 20, 2019

Abstract

In this Article, we explore the “stealth” use of science by the Executive Branch to advance deregulation and highlight the limited, existing legal and institutional constraints in place to discipline and discourage these practices. Political appointees have employed dozens of strategies over the years, in both Democratic and Republican administrations, to manipulate science in ends-oriented ways that advance the goal of deregulation. Despite this bald manipulation of science, however, the officials frequently present these strategies as necessary to bring “sound science” to bear on regulatory decisions. To begin to address this problem, it is important to reconceptualize how the administrative state addresses science-intensive decisions. Rather than allow agencies and the White House to operate as a cohesive unit, institutional bounds should be drawn around the scientific expertise lodged within the agencies. We propose that the background scientific work prepared by agency staff should be firewalled from the evaluative, policymaking input of the remaining officials, including politically appointed officials, in the agency.

Keywords: administrative law, deregulation, executive branch, agencies, science

Suggested Citation

McGarity, Thomas Owen and Wagner, Wendy E., Deregulation Using Stealth 'Science' Strategies (April 20, 2019). 68 Duke L. J., Forthcoming, U of Texas Law, Public Law Research Paper No. 704, Available at SSRN: https://ssrn.com/abstract=3375157

Thomas Owen McGarity

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

Wendy E. Wagner (Contact Author)

University of Texas at Austin – School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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