Patrick McLaughlin, Matthew D. Mitchell, and Adam Thierer on the benefits of suspending many existing regulations during the ongoing epidemic:
As the COVID-19 crisis intensified, policymakers at the federal, state, and local levels started suspending or rescinding laws and regulations that hindered sensible, speedy responses to the pandemic. These “rule departures” raised many questions. Were the paused rules undermining public health and welfare even before the crisis? Even if the rules were well intentioned or once possibly served a compelling interest, had they grown unnecessary or counterproductive? If so, why did they persist? How will the suspended rules be dealt with after the crisis? Are there other rules on the books that might transform from merely unnecessary to actively harmful in future crises?
In many cases, rule departures or partial deregulations undertaken during the crisis are tantamount to an admission by policymakers that some policies that were intended to serve the public interest fail to do so. “The explanation for many of these problems is that outdated 20th-century rules stymie 21st-century innovation,” noted former Florida Governor Jeb Bush in a recent Wall Street Journal editorial. “In an emergency, many of those rules can be waived by executive order. After the crisis, there will be momentum to challenge the stale rules that hindered our response. This is likely to go well beyond dealing with pandemics,” he argued. Similarly, lawyer and commentator Philip K. Howard has asserted that “the same kind of energy and resourcefulness will be needed to get America’s schools, businesses, government agencies and nonprofits up and running again” and has suggested the need for a “temporary Recovery Authority with a broad mandate to identify and waive unnecessary bureaucratic hurdles to recovery.” In addition, Wall Street Journal columnist and Brookings Institution Senior Fellow William A. Galston has called for a “Coronavirus 9/11 Commission” to study the governance failures witnessed during the crisis, arguing that “the immediate effects of Covid-19 are bad enough. Failing to learn from it would be criminal negligence for which future generations won’t forgive us.”
The crisis has been a stress test for American institutions. It has laid bare the outdated, overlapping, and often contradictory morass of rules that make it difficult for public and private organizations to respond to changing circumstances. In many cases, these rules persist not because they protect the public from danger but because they protect organized interest groups from new competition. Rules also persist because agencies rarely prioritize retrospective reviews aimed at eliminating unnecessary or potentially harmful rules. On the contrary, agencies typically have a vested interest in maintaining regulations that often took years to generate. Agency employees who have developed expertise in those rules, just like their counterparts in the private sector, have a financial interest in preserving these rules. In this way, “Agencies are stakeholders with respect to their own regulations.”
Once the COVID-19 crisis subsides, there is likely to be considerable momentum to review the rules that have slowed down the response. Some of those rules should probably be permanently repealed and others amended to allow for more flexible responses in the future.
