Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247 (1996).
Abstract: In this article, Cass Sunstein explores the 104th Congress' attempts at regulatory reform. Professor Sunstein believes that the election of this Congress, with its distinctive approach to government, signals the dawning of a "constitutional moment" in which the role of government at all levels will be reexamined. Without full public support for sweeping changes in government, this moment has not yet materialized. When and if it does, regulatory reform will be one of its aspects. Indeed the nation has already begun to examine regulation to determine if the benefits justify the costs. Unfortunately, the 104th Congress has, thus far, failed adequately to address this burgeoning cost-benefit state. Sunstein claims that Congress' failure reflects its inability to redesign the massive federal regulatory scheme. He suggests that the executive branch should oversee regulatory reform, with Congress relegated to providing broad policy direction. Sunstein also suggests that Congress adopt an Administrative Substance Act, building upon the recent learning about the performance of regulation and modeled after the Administrative Procedure Act. Sunstein further calls for the enactment of a "substantive supermandate" requiring a general background rule of cost-benefit balancing for all federal regulation; but he contends that any description of costs and benefits should reflect the full range of diverse values expressed by the public at large.