In a post on “Notice & Comment,” a blog published by the Yale Journal on Regulation, Professor Elena Chachko explores how the Biden administration is bringing international considerations into the regulatory process more than ever before within a broader effort to modernize regulatory review.
The move, part of an evolution begun during the Obama administration from prioritizing efficiency as the main purpose of international consideration toward an emphasis on epistemic and global-welfarist advantages, means Americans’ welfare is not the only thing that counts, she writes. But that could come into conflict with the U.S. Supreme Court’s recent decisions that limit administrative discretion — a dynamic she considers more deeply in an upcoming article.
The Biden administration’s push “puts a thumb on the scale in favor of internationalizing U.S. domestic regulation in meaningful ways. It continues the transition from an efficiency-focused view of regulatory analysis to a global-welfarist one,” Chachko writes. “It is an important innovation, but one that is likely to face significant implementation problems not least because of the potential executive-judicial tension regarding unilateral agency recourse to international considerations.”