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.