The “Benefits” of Non-Delegation: Using the Non-Delegation Doctrine to Bring More Rigor to Benefit–Cost Analysis

• Published date: 16 October 2007
• DOI: https://doi.org/10.1016/S0193-5895(07)23002-7
• Pages: 49-66
• Date: 16 October 2007
• Author: Victor B. Flatt

THE ‘‘BENEFITS’’ OF

NON-DELEGATION: USING THE

NON-DELEGATION DOCTRINE

TO BRING MORE RIGOR TO

BENEFIT–COST ANALYSIS

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Victor B. Flatt

ABSTRACT

This article posits that a more rigorous enforcement of the Constitutional

Doctrine of Non-delegation would prevent many of the problems that have

been identified with benefit–cost analysis. In particular, a rigorous

application would prevent administrative agencies from using benefit–cost

analysis as a screen to make policy decisions that the agency otherwise

wishes to occur. Though the US Courts might have some difficulty in

enforcing this notion, it is possible to do, and would greatly help the

benefit–cost process,by regulating it to its proper place in an administrative

system.

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The final version of this paper originally appeared as The ‘‘Benefits’’ of Non-Delegation:

Using the Non-Delegation Doctrine to Bring More Rigor to Benefit–Cost Analysis, in Volume

15, Issue 4, of the William & Mary Bill of Rights Journal, published in Spring 2007.

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Conference Draft (prepared for presentation at conference on ‘‘What We Can Do to

Improve the Use of Benefit–Cost Analysis’’ – Talaris Center, Seattle, May 18–19).

Research in Law and Economics, Volume 23, 49–66

r2007 Published by Elsevier Ltd.

ISSN: 0193-5895/doi:10.1016/S0193-5895(07)23002-7

49

1. A LAW PROFESSOR AND BENEFIT–COST

ANALYSIS

Benefit–cost analysis (or cost–benefit analysis) is a discipline that tries to

ascertain the benefits and costs of a particular (usually public or

governmental) action to ensure that government expends resources in the

best and most efficient way possible.

1

It is generally the province of

economists and an attempt to improve its use will often be focused on the

technical execution of the process itself.

2

Many pages of analysis have been

devoted to how benefit–cost analysis can more accurately predict or describe

information that we want to assist in government policy. But of course, the

use of benefit–cost analysis for policy purposes rests within the framework

of policy itself, and in the United States, government policy is dictated by

laws and the execution of those laws. Therefore, in all of the economic

studies that look at the effectiveness or improvement of benefit–cost

analysis, there is the underlying given that such a policy must be consistent

with law. But neither law nor its interpretation is static. Nor in its broadest

sense is law predictive or formulaic, though parts of it have been subject to

mathematical analysis, and much of its outcomes and goals can be explained

by economic theory.

3

Therefore, one part of any discussion of benefit–cost

analysis must lie outside the realm of empirical data, and instead in the

realm of advocacy – wherein certain interpretations of the law are put

forward as the ‘‘best’’ or correct ones because someone wishes the result that

would come about from that interpretation.

In this paper, I plan to enter that realm and provide reasoned arguments

for why I think that the law should be interpreted in a certain way. I am

going to assert that an interpretation in this manner will provide a legal

framework for benefit–cost analysis, that I believe will move us more toward

the result that provides information for the best overall policy decisions

based on that information.

2. INTRODUCTION

The first step in this advocacy is to explain how benefit–cost analysis in

policy is related to law. A brief civics lesson would note that all laws of the

United States government are to be made by a Congress, with presidential

input.

4

Similar state constitutional doctrines underlie state lawmaking.

Though many might wish our lawmakers to use a specific analytic process for

VICTOR B. FLATT50