Redistributive Regulations and Deadweight Loss

Daniel J. Hemel

Journal of Benefit-Cost Analysis, 2023, vol. 14, issue 3, 407-436

Abstract: Redistribution generates equity benefits and deadweight loss. A canonical result in economic theory holds that policymakers generally cannot escape the problem of deadweight loss by redistributing through non-tax rules. Nonetheless, the Office of Management and Budget (OMB) released a revised framework for regulatory analysis in November 2023 that encouraged federal agencies to consider distributional benefits – but not the deadweight loss of redistribution – when choosing which non-tax rules to promulgate. By omitting deadweight loss from distributional analysis, OMB’s framework will lead to inaccurate estimates of the welfare effects of regulatory changes and will leave agencies vulnerable to legal attack on the ground that they have ignored an important aspect of regulatory redistribution in their decision-making. This article illustrates how agencies can incorporate deadweight loss into distributional analysis and thereby place their redistributive rules on firmer economic and legal footing. It shows how the “elasticity of taxable income” approach – widely used by tax economists – can be modified to the regulatory context so that agencies can estimate the deadweight loss of redistributive regulations while incurring relatively modest additional analytical burdens. Explicitly incorporating deadweight loss into distributional analysis will provide the public with a more accurate view of the welfare consequences of regulatory actions and will make regulations more robust to legal challenges.

Date: 2023
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