Deregulation using Stealth Science Strategies


Thomas O McGarity, Wendy E Wagner

68 Duke Law Journal 1719


In this Article, we explore the “stealth” use of science by the

Executive Branch to advance deregulation and highlight the limited,

existing legal and institutional constraints in place to discipline and

discourage these practices. Political appointees have employed dozens

of strategies over the years, in both Democratic and Republican

administrations, to manipulate science in ends-oriented ways that

advance the goal of deregulation. Despite this bald manipulation of

science, however, the officials frequently present these strategies as

necessary to bring “sound science” to bear on regulatory decisions. To

begin to address this problem, it is important to reconceptualize how

the administrative state addresses science-intensive decisions. Rather

than allow agencies and the White House to operate as a cohesive unit,

institutional bounds should be drawn around the scientific expertise

lodged within the agencies. We propose that the background scientific

work prepared by agency staff should be firewalled from the evaluative,

policymaking input of the remaining officials, including politically

appointed officials, in the agency.

Full Citation

Thomas O McGarity and Wendy Wagner, Deregulation using Stealth Science Strategies, 68 Duke Law Journal 1719 (2019).