So regulators can just make rules by gut instinct now?
If you think federal regulators care about data-driven, evidence-based policymaking, a case currently before the U.S. Court of Appeals for the 11th Circuit will leave you scratching your head.
The case involves a terrible Biden administration regulation driven by Big Labor. In defending this regulation, which mandates that crews on freight trains include at least two people, attorneys for the U.S. Department of Transportation leaned heavily not on data or evidence, but on 'common sense.'
This, of course, is about a lot more than trains. It's a microcosm of a much larger issue.
Emotion-based regulation is a destructive way to regulate the complex and dynamic U.S. economy — unless you happen to favor the lesser freedom and dynamism found on the European continent. In the case of this U.S. rule, the government admits that it has no actual evidence that two-person crews are safer than one-person crews. Instead, the agency has asked the court to defer to what it calls a 'common sense product of reasoned decision-making.'
This language might sound like harmless bureaucratic boilerplate. It's anything but.
It represents a dangerous precedent — one by which agencies can sidestep their legal responsibility to document actual market failures that necessitate regulation, to present cost-benefit analyses or even just to show substantive safety concerns.
You might agree that two is better than one, but if 'common sense' is the new legal standard, then anything goes.
What's next? Regulating package-delivery drones because 'it feels safer' to keep humans on some kind of joystick? Requiring every grocery store to have cashiers at every checkout lane — even if 90% of customers use self-checkout — because 'it feels more secure' to see someone behind the counter?
Safety and security are obviously important. That's exactly why we should demand real evidence.
The government's own data don't support the notion that mandating two-person crews would improve safety. My former colleague Patrick McLaughlin showed that there is no reliable, conclusive data to document that one-person crews have worse safety records than two-person crews. Many smaller U.S. railroads have long operated safely with single-person crews, as do the Amtrak trains that haul Washington's elite up and down the East Coast. We also have a wealth of data from Europe and other nations where single crew members operate.
Then there are the issues of trade-offs. Importantly, requiring an additional crew member increases labor costs, which could divert funds away from critical areas such as track and equipment maintenance or safety-enhancing innovations (automation, accident-prevention systems, etc.). In fact, historically, safety improvements in rail have been driven more by infrastructure investment and innovation, not crew size.
As it turns out, railroads have invested billions in automation and safety technology to reduce the risk of human error, which is the leading cause of rail accidents and can contribute to disasters like the 2023 wreck in East Palestine, Ohio, which continues to cast a pall over the industry.
So why the push to keep such a rule now? The answer, unfortunately but unsurprisingly, is politics. This mandate has been a longstanding wish-list item for Big Labor. More crew members means more union dues. For elected officials, it means more campaign endorsements. For the rest of us, it means higher costs and more stuff moving over highways on trucks, which will increase traffic fatalities.
The broader question raised by this case is whether federal rulemaking has abandoned the core principles of the U.S. system. Historically, agencies were expected to demonstrate a compelling need for regulation backed by real-world data. Now, it seems, the burden is being flipped: Unless the regulated party can prove the rule is unnecessary, the rule stands.
In this European-style approach to regulation, which I am familiar with, the default control lies in the hands of bureaucrats who are simply presumed to know best. This is what the U.S. system was designed to avoid.
This trend isn't just visible in rail policy. Across sectors, federal agencies are using vague justifications and broad interpretations of statutory authority to impose sweeping mandates — often with little concern for how they affect innovation, private investment or the broader economy. Courts, unless they push back firmly, risk becoming rubber stamps for regulatory overreach.
If the 11th Circuit upholds this rule on the grounds of 'common sense,' the consequences could be far-reaching. It would effectively tell every agency not to worry about assembling an evidence-based record or conducting rigorous cost-benefit analyses. Just appeal to intuition and call it a day.
That outcome would be one that offends genuine common sense.
Veronique de Rugy is a senior research fellow at the Mercatus Center at George Mason University. This article was produced in collaboration with Creators Syndicate.
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