Administrative Law Prof Blog

Can Indian Tribes Offer a Bypass of Govt Agencies?

This scheme sounds like a scam, but it does raise an interesting question for analogous, but less outlandish, ideas like offering Swiss-style bank accounts, credit cards with higher-than-permitted interest rates, etc.

-D.S.

Still Scapegoating After Katrina

This new AEI-Brookings Joint Center piece on the post-Katrina reconstruction says we should not blame FEMA or the President for the New Orleans disaster (agreed - there is no statutory authority for FEMA having comic-book-superhero powers, and only in action films could a President single-handedly control the outcome of a natural catastrophe). Yet the Joint Center does lay the blame (all of it? most of it?) at the feet of the Army Corp of Engineers - especially for the languid post-diluvian reconstruction efforts and prevention-construction in the last year. Personally, I am still not sure WHY, apart from sentimental reasons, we need a city right there (as opposed to a few miles inland), or why the billions of dollars it will take to build adequate seawalls (etc.) could not be spent elsewhere.  Katrina-scapegoating has become a policy-wonk pastime, but I it seems the me that the underlying policy question remains unanswered - whether New Orleans' continued existence is worth the costs.  It's too hot to live in Death Valley, but nobody blames the Army Corp of Engineers for not adjusting the thermostat there.

(Incidentally, Belize is in the process of moving their capitol from Belize City to Belmopan because the costs of rebuilding their capitol after every Gulf Hurricane was too burdensome - and the United States has pitched in by building an enormous new embassy complex in Belmopan.) 

It is interesting, however, to ask whether the Army Corp of Engineers has a duty to manage risks for the citizenry, or a duty or prevent harms (these are different tasks). 

-D.S.

New Regulatory Issues with Chocolate

The regulatory definition of chocolate is in dispute - read the Bookings-AEI story, or the (more pop-culture) CNN version.  Admin classes may find this entertaining - perhaps right after covering the Mead case, which is in many casebooks.

-Dru Stevenson

Privatization and the LOO

This editorial arguing in favor of Circular A-76 glibly justifies government outsourcing by comparing it to everyday hiring of contractors by individuals, as when you get bids from painters for your own home. 

Consider the example of painting your home. To accomplish the task, you consider doing it yourself or hiring a local painting business. Your final choice ends up being a trade-off that considers cost and the quality of the job needed. Competitive sourcing poses the same question: Is it more cost-effective for federal employees or the commercial marketplace to perform a task?  Included in the competitive-sourcing process is consideration of trade-offs in cost, efficiencies and effectiveness of performance and the choice on who should perform the services. Beyond the debate about the merits of the competitive-sourcing process, the primary premise behind Circular A-76 is that even if in-house employees win work that is put up for a competition, they should be held accountable to performance standards and cost controls. In terms of Circular A-76, this means administering the in-house employee work team (called the most efficient organization, or MEO) and its formal service agreement (called the letter of obligation, or LOO) as if they were a contractor with a contract.

...Except for the fact that my house painter is not being paid with taxpayer dollars, and the fact that there are no unconstitutional delegation/state-actor issues involved when a private party paints another person's house, and the fact that I don't have an elaborate civil service infrastructure already in place for my personal decorating needs, and the fact that I receive several flyers or junk-mail offers to paint my house every week, while many government contracts go out to lone bidders in unsuccessful RFP's.  Other than those little caveats, I suppose you could draw a tidy analogy between a $3000 house-painting job, usually completed within a few weeks, and a $3,000,000 government contract that will last for several years.  The best part of the analogy to government outsourcing, perhaps, is that my house happens to be brick (we're in Texas), and therefore does not need to be painted in the first place. That aspect does remind me of government contracts.   

-Dru Stevenson

NLRB Workers Go On Strike?

I know it sounds like a parody headline from Scrappleface, but this article is from FedSmith.com, describing the (ironic?) describing how the unionizing federal employees at the National Labor Relations Board are protesting recent decisions from the General Counsel (Ronald Meisburg).  From the article:

In an ongoing dispute at the NLRB caused by a decision by the Federal Labor Relations Authority, the Board's union issued a press release announcing its intention to picket and calling for the resignation of General Counsel Ronald Meisburg for acts that show "defiance of Federal Law and contempt for the rights of his employees."

The union's press release quoting unnamed "union sources" (a little unusual since it's the union's press release) said it would engage in other protests involving public events Meisburg attends.  I don't know the GC's public events schedule but football, basketball and ice hockey seasons will certainly start before the case is decided.  If the General Counsel is a DC spots fan, it begs the question of whether the various player's associations will refuse to cross NLRBU's picket line in solidarity with their Federal union brothers and sisters.

For the exact nature of the dispute between the NLRB and the Federal Labor Relations Authority (FLRA), there are good background stories here and here.  Essentially, the FLRA has decreed that the NLRB has misinterpreted the law and taken an incorrect position towards its own employees.

-Dru Stevenson

Rocky Rhodes Saved This Blog

Well, as the summer ended and the new year started, I paused to reflect upon whether I should keep going with Admin Law Profs Blog, or if I should shut it down and spend the time on other projects.  I realized that the determining factor would be whether I could draft another co=blogger to help with the posts on certain days of the week; but my renewed efforts to recruit another writer were at first unsuccessful.  When all seemed lost, Rocky Rhodes, a colleague at my school and ConLaw Prof Extraordinaire, made an inspired suggestion that I would not otherwise have pursued.  Now it appears that we will have new blood around here in the next few weeks.  Whew!

-D.S.

New RAND Study on Hurricane Insurance Markets

The RAND CORP. an interesting new study on the breakdown (apparent failure) of insurance markets for wind damage along the Gulf Coast.  This might be particularly interesting for the growing number of academics focusing on catastrophe/disaster law.

This is the excerpt on the pros and cons of regulation vs private markets:

Private insurance markets work best for high-frequency events without widespread impact, such as auto insurance. But the study notes that the private markets are less effective for infrequent, catastrophic events – like hurricanes – that affect a large number of policyholders at the same time. To reduce the risk of financial collapse, insurers may charge premiums that substantially exceed the expected value of losses.

The study also says that private insurance markets are prone to volatile swings in the price of insurance. This makes it difficult for business to rebuild after a hurricane when prices are high, and can discourage loss-mitigation measures when memory of the event fades and prices are low.

Government can in theory set insurance prices closer to the long-run expected loss for hurricanes and other natural disasters because tax revenue eliminates concerns about insolvency. However, the study says government officials can face political pressure to subsidize one group over another, or set premiums too low. As a result, low insurance rates could encourage the construction of buildings in high-risk areas that are not sufficiently wind resistant. Government intervention may also compound the problem by reducing private insurers' willing to provide insurance.  The study identifies areas where further research and analysis would help identify what balance between private and government programs would be desirable.

-Dru Stevenson

Election Assistance Commission - Ongoing Controversy

     The Election Assistance Commission is in the midst of a swirling controversy following its report about the amount of voter fraud that can occur even after the implementation of stricter guidelines. Complaints allege that the EAC ignored much of the evidence presented to it by the National Institute of Standards and Technology (NIST), a subcommittee chartered with the responsibility of researching voting technology. In its final report to the EAC, the NIST stated that there was no controversy and almost a unanimous belief that voting fraud using the new technologies would be inconsequential. The EAC then presented opposite findings in their final report to Congress. 

     Congress enacted the Election Assistance Commission (EAC) to help solve the infamous problems at polls during the last presidential election. The EAC is supposedto find good voting technologies, but also to distribute federal funds for states to who meet and implement the higher standards that the EAC establishes. Section 401 of the Help America Vote Act of 2002, only allows the Attorney General of the United States to bring action of declaratory or injunctive relief against voting methods that are discriminatory or fail to meet the requirements of the rules enacted by the EAC. While Section 402 provides for the establishment of state-based administrative complain procedures to remedy grievances by individuals. But since the state is often going to be the violator, placing investigations in the violator’s hands, it is unlikely that the act will have adequate enforcement either individually or federally. 

     The issue regarding voter fraud seems to be evenly split between party lines – Republicans argue that Democrats are ignoring a large problem, while Democrats insist that Republicans are exaggerating the facts in order to pursue voter identification laws. Even if political pressures influenced the final draft of the report by the EAC, it will have little impact on voting because of the limiting scope of its enforcement. The decisions made by the EAC are “voluntary” meaning that Congress still must determine whether to adopt their opinion and implement it through all of the states. It is still unclear how or if a biased voting plan could affect the elections in November 2008.

-D.S.