This post is part of a symposium on the future of cost-benefit analysis. Read the rest of the symposium here.
There is nothing to fear from cost-benefit analysis (CBA), its defenders argue. If it once represented a harsh decisional framework, with clear deregulatory effects, it has now taken a softer form. Under current executive orders, the projected benefits of a proposed regulation need not exceed projected costs; they need only justify those costs, a bar that many regulations have cleared. Defenders of CBA also point to the framework’s salutary effects, such as the resource savings that accrue from it and the counter-narrative it provides to complaints of regulatory excess. So salutary are these effects, some might argue, that there is no reason (other than limited Executive Branch resources) not to run a cost-benefit analysis on every proposed regulation, in every policy area. Perhaps that is why it has been so easy in recent years to find cost-benefit analysis in places that are not its original bailiwick, such as in proposed regulations to implement Title IX.
CBA’s expansive potential deserves, and has received, critique. Cost-benefit analysis “jumps the shark,” Lisa Heinzerling memorably declared in 2012, after the Department of Justice attempted to calculate the benefits to an incarcerated person of not being sexually assaulted. Concerns had circulated earlier, as well, including among those who saw an important role for economic analysis in public law. For example, in 1996 and more strongly in 2011, Susan Rose-Ackerman urged policymakers to keep CBA in its proper place, namely “as a background norm for laws designed to correct market failures.” Likewise, in 1981, future “regulatory czar” (and former Office of Legal Counsel attorney) Cass Sunstein emphasized the inappropriateness of applying a rigid form of CBA to statutes that could not “plausibly [be] regarded as intended to promote efficiency.” These included Medicaid, the Endangered Species Act, civil rights laws, and laws aimed at protecting people with disabilities. In short, various scholars have argued that we can and should draw a line in the sand, beyond which CBA may not go.
There are many reasons for wanting to draw such a line, from concerns about the immeasurability of potential costs and benefits, to respect for Congressional will. I would like to underscore two additional points, long voiced by people who have experienced disability-based exclusion and who have recognized the threat of cost-benefit thinking to landmark civil rights laws. (This recognition dates back to at least 1981, when President Reagan’s “Task Force on Regulatory Relief” and its benefit-maximizing mandate imperiled the hard-fought regulations implementing Section 504 of the Rehabilitation Act.)
The first point is about the limits that even a soft form of CBA implies. In a society that remains inaccessible to many disabled people, some have found it useful to be able to say, “this thing I want (need) is not that costly, especially relative to the benefits, so you should just give it to me.” But as disability law scholars and practitioners would be the first to admit, that same framework carries within it a concession. It suggests that at some point, or for some seekers, cost will be an entirely valid reason for the person who controls access or resources to say “no.” The benefits may be entirely real, but they will not justify the costs.
Surely there are situations in which we don’t want to make that decisional framework available—not because we think we can simply wish away costs, but because of the importance of the interest at stake and because we know just how easy it is to craft compelling narratives of austerity and costliness. To be sure, austerity/cost narratives have counter-narratives—of deservingness, of need, and even of right—but historically, some narrators have received more credence from the American public than others. There is a thumb on a scale against anyone who can plausibly be blamed for their own vulnerability (“welfare mothers” are a prominent historical example).
Defenders of CBA might say “trust the process.” Expert analysts are more enlightened, more imaginative, than the general public; they will hear the voices of people who are routinely silenced, ignored, and devalued, and they will give those voices due regard. Sunstein, for instance, has pointed to “a bunch of . . . examples in the Obama Administration” where OIRA treated non-quantifiable benefits “as justificatory, including the dignitary benefits of being able to use a bathroom if you’re in a wheelchair.” I believe in the administrative state and trust the experts who staff it, and yet it would be naïve to ignore one of the longest-running critiques of federal administrators, voiced both on the left and the right: that administrators are vulnerable to bias. We can commend the administrators in the Department of Justice who recognized the “dignity” value of an accessible toilet while also wanting a deeper analysis of whether and how government analysts have grappled with a well-established societal preference for the “able.” In the meantime, and in light of many historical examples of government hostility towards disabled people, a posture of skepticism seems warranted.
The second point—again, heard often in the disability community—is about deep structures of exclusion and how easily they escape the notice of policymakers. CBA is particularly unhelpful in this regard. As Martha Nussbaum has argued, in the context of her capabilities work, CBA may help us in answering which of the options in front of us “contains the largest net measure of good,” but it is not an apt tool for naming and questioning the immorality that may be embedded in the set of choices made available. As Nussbaum puts it, CBA foregrounds the “obvious question” and leaves unasked and unanswered the “tragic question” that may be present in the same situation. Thus in the disability context, CBA might help us decide whether and how to make existing public transportation accessible (still a serious problem), but it does not ask why transportation systems were built in ways that excluded so many disabled people in the first place. It might help us make a decision about the pace and nature of deinstitutionalization, but it would not interrogate the morality of a society that has long separated people with intellectual and developmental disabilities from the rest of the community and confined them in warehouse-like settings. More generally, CBA is comfortable casting some people’s needs as the “costs,” and implicitly asking those people show their worth, rather than asking how and why they ended up on that side of the ledger to begin with.
Ultimately, this disability-informed perspective does not dictate where to draw the line in the sand or tell us how, in the absence of CBA, we should make tough decisions. But it does tell us this: To the extent that CBA distracts lawmakers, regulators, and the broader public from seeing the injustice in the status quo, it is a problem. To the extent it encourages people to concede to their own subordination, it is injurious. The American public should want policymaking tools that help realize this country’s noblest aspirations—such as the full inclusion of people for whom the “market” assigns no value. We should be cautious with tools that, while useful in some contexts, allow us to live comfortably with our failings.
