Regulation, Discretion, and Public Choice with Stephen M. Jones

What follows is an edited partial transcript of my conversation with Stephen M. Jones. He is an economist for the US Coast Guard. However, we are discussing his own research, so nothing in this conversation should be taken to represent the official views of the US Coast Guard.

Petersen: So Stephen, let's start just by defining regulatory discretion. What does that mean in this context?

Jones: Sure. So, I think first off, we should probably define regulation because when Congress writes a law, they pass the law on to regulatory agencies and it will say something to the effect of "agencies: issue a regulation." So, when we talk about regulations this point isn't always clear because people just aren't familiar with this process. The regulation is a statement that kind of clarifies existing congressional law or is written in direct response to congressional law. And this could be as specific as, say, Congress can direct an agency to set an exact amount of pollution that is permitted for an industry to as broad as saying something like "protect consumers from unreasonable risks." And then the agency has room to interpret that statement as wide as it wants to.

So, when I talk about agency discretion what I'm really talking about is Congress wrote a rule that gave the agency power to issue legally binding rules that may or may not trace directly back to Congress.

Petersen: Yes. So, in the example you use with the pollution, Congress has something fairly specific in mind---a specific type of pollution---but the agency might have to clarify and to say what counts as pollution and how much they're measuring it and maybe they might establish a quota system, they might have specific rules for specific firms. And in the other example you gave, which is just protecting consumers from unnecessary risk, in that case they can basically write rules as if they were their own legislator, they're essentially doing what Congress is ostensibly meant to do. Is that correct?

Jones: I'm not sure I would go that far. So, there are various theories of the purpose of the regulatory apparatus in the bureaucracy. Some people---I cite them in the paper---Baumgartner and Jones and Workman have one that is called 'The Politics of Information' and I forget what the other is called, it was written in 2015. And their theory instead is that Congress gives the agencies discretion because Congress doesn't know the problems it needs to solve and so the agency is kind of like the specialists that you subcontracted to figure out what Congress wants them to solve without actually knowing, say the relevant information to determine that.

That's one theory. You've got other people like Philip Hamburger notably, who has written a whole book on how administrative law, which is another word for regulation, is unlawful and so he goes through sort of the common-law tradition and cites numerous pieces of evidence to say, exactly in the way that you put it, that it's a deep legislative function and only Congress should be performing that.

And so, whether that's true I think depends on a number of different assumptions that aren't always discussed directly in the literature. That would be my interpretation if that makes sense.

Petersen: Right. And of course, we're approaching this from an economic standpoint so there are important public choice issues involved with this. The same rule whether it's written by a legislator or a bureaucracy---a regulatory agency--- it's the same rule and so in principle, there should be no difference. But the important thing is that the agency and the Congress may have different incentives and may write different rules. That's what I interpret as an important underlying theme in your paper.

Jones: That's most certainly true. So, that's actually one of the things that frustrate me greatly about reading a lot of these other, I think, great researchers who don't in my opinion sufficiently consider the role of incentives. To couch it in Baumgartner's or in Jones' and Workman's terms, okay, let's assume that the purpose of the bureaucracy is to create the information that's necessary to solve the national problems, whatev...