This post is the first in a three-post point-counterpoint-rebuttal series. The other posts, written by Senior Policy Analyst James Goodwin and Member Scholar Richard J. Pierce, are available here and here.
I recently accepted an invitation from Georgetown Journal of Law and Public Policy and the Pacific Legal Foundation to contribute to a symposium on “Ensuring Democratic Responsibility in the Administrative State.” I decided to begin with ideas that I borrowed from former U.S. Supreme Court Chief Justice William Howard Taft and former Justice Stephen Breyer.
In his opinion in In re Myers, Taft (also a former president) explained why the politically accountable president must rely heavily on agents in their efforts to ensure that the executive branch acts in ways that are consistent with their policy preferences and that officers in the executive branch faithfully execute the law. Given the dramatic expansion of government since Taft made that point, the modern president needs to rely on an entity or office to monitor the performance of their agents.
Fortunately, the modern president has access to such an entity — the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget. OIRA performs two critical functions on behalf of the president. It ensures that agencies engage in benefit-cost analysis of the major rules they issue, and it assembles and passes on to the president the views of all executive branch departments on the major rules that agencies plan to issue.
I then turn to the book that Justice Breyer published in 1993: Breaking the Vicious Circle. After identifying systemic flaws in our regulatory system, Justice (then professor) Breyer explained why OIRA is well-positioned to minimize the adverse effects of those flaws. He then identified a characteristic of OIRA that limits its ability to perform that critical function. Its ability to evaluate and quantify the expected effects of rules is limited by the absence of experts in the scientific disciplines relevant to many of the major rules that agencies issue. I support his proposal to expand OIRA to include people with relevant scientific expertise.
But I don’t think the president should stop there. A second expansion of OIRA, supported by some of the office's former leaders and many scholars, would give it responsibility to review major rules proposed by “independent agencies.” Several studies have found that the quality of the analysis in the decisions of the agencies that are subject to OIRA review is superior to the quality of analysis in the decisions of the “independent agencies” that are not subject to OIRA review.
Finally, I propose a third expansion of OIRA. Every president for decades has directed agencies to engage in benefit-cost analysis of major rules after they have been in effect for a few years. Analysis of the actual effects of major rules would allow agencies and OIRA to improve the quality of their estimates of the expected effects of major new rules and to identify existing rules that need to be rescinded or amended. The results of those presidential mandates have been disappointing. OIRA is well-positioned to serve as the president’s agent in ensuring that agencies engage in systematic analysis of the effects of existing major rules.
An expanded version of OIRA can play a particularly valuable role in conditions of extreme political polarity. OIRA’s emphasis on objective analysis conducted by a permanent team of professionals can serve as an essential counterweight to the tendency of each newly elected president to pander to the views of the extremists who comprise the base of each political party.
I also urge the U.S. Supreme Court to adopt, or to continue to implement, doctrines that complement the role of the expanded version of OIRA. Those doctrines include continued emphasis on the president’s power to control policymaking through use of the power to appoint and remove officers who have the power to make policy decisions; continued emphasis on the duty of agencies to engage in reasoned decision making; continued adherence to textualism as a means of ensuring that the president does not stray outside the boundaries of presidential power established by the Congress; and encouragement of the analytically rich notice and comment rulemaking process by conferring an appropriately cabined version of Chevron deference only on statutory interpretations that are adopted through use of that process.
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Richard Pierce, Jr. | February 28, 2023
I recently accepted an invitation from Georgetown Journal of Law and Public Policy and the Pacific Legal Foundation to contribute to a symposium on “Ensuring Democratic Responsibility in the Administrative State.” I decided to begin with ideas that I borrowed from former U.S. Supreme Court Chief Justice William Howard Taft and former Justice Stephen Breyer.
James Goodwin | February 28, 2023
In today's "point" post on this blog, Member Scholar Richard Pierce described how centralized regulatory review conducted by the White House Office of Information and Regulatory Affairs (OIRA) is effective in ensuring the democratic accountability of the administrative state. In this companion post, I’ll offer a competing view of whether centralized review fulfills this objective in practice and what that means for the standards and safeguards designed to protect our health, safety, and lives.
Richard Pierce, Jr. | February 28, 2023
At the request of Senior Policy Analyst James Goodwin, I posted a brief summary of an essay in which I described the advantages that I see in expanding the scope of the White House Office of Information and Regulatory Affairs (OIRA) and combining its use of cost-benefit analysis with some doctrines that the U.S. Supreme Court has already adopted. I did so, and Goodwin suggested pairing it with a "counterpoint" post he subsequently prepared and also gave me the opportunity to rebut that counterpoint. I do so here.
Katlyn Schmitt | February 27, 2023
Everyone should have a fair chance to live the healthiest life possible, but that’s not always the case for many of our communities. That's particularly true of overburdened communities that bear the brunt of pollution and toxic chemical exposures. But help may be on the way in Maryland in the form of the Climate, Labor, and Environmental Equity Act of 2023, and I testified in strong support of the bill on February 23.
Marcha Chaudry | February 16, 2023
February started with news that's all too familiar in the United States: An incident involving highly toxic industrial chemicals sparked a large fire, threatening an explosion, forcing evacuations, and putting workers and community members directly in harm's way. In this case, the danger came from a derailed train in Ohio that was hauling cancer-causing vinyl chloride, used to make certain types of plastic; toxic phosgene, an industrial chemical that was also used as a chemical weapon in World War I; and other substances. But extreme, acute threats like the Ohio derailment aren't the only toxic chemical dangers facing workers and surrounding communities.
James Goodwin | February 15, 2023
Last week, the Biden administration took the next step on its important initiative to “broaden public engagement in the federal regulatory process,” announcing a set of proposed reforms and asking for more public feedback. As the announcement explains, these proposals reflect input the administration received during a public listening session and an open comment period it conducted last November — both of which I participated in along with several members of the public interest community. I was pleased to find that many of our recommendations were reflected in the proposals.
James Goodwin | February 9, 2023
On February 8, conservatives in the U.S. House of Representatives began their assault on the Clean Water Act with a hearing aimed at attacking the Biden administration’s rule to more clearly define the law's scope of protections. Center for Progressive Reform Member Scholar Dave Owen, a law professor at the University of California College of the Law in San Francisco, was the only witness invited to fend off these dangerous attacks.
James Goodwin | February 9, 2023
“Finish the job” was a fitting theme for President Joe Biden’s second State of the Union address. It provided a valuable oratorical perch from which Biden could both tout his impressive legislative successes of the last two years and call on Congress to pass laws that, to quote Biden himself, help build an economy and support a society “from the bottom up and the middle out.” But Biden needs to heed his own call to “finish the job.”
Allison Stevens | February 8, 2023
In his second State of the Union address, President Joe Biden hailed his administration’s significant accomplishments over the last two years and called on lawmakers to “finish the job” on a wide variety of policy issues. He uttered the phrase over and over — more than a dozen times, in fact — in relation to everything from repairing the economy and controlling the cost of prescription drugs to expanding access to affordable health insurance and making the tax code fairer. About a third of the way through his 73-minute speech, he called on the country to “finish the job” when it comes to climate change.