During her confirmation hearing, Neomi Rao – then the administrator of the White House Office of Information and Regulatory Affairs (OIRA) and President Trump's pick to fill Justice Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit – attracted a lot of controversy. Much of it surrounded the outrageous student newspaper commentaries she wrote as an undergrad, in which she casually passed judgment on date rape victims and the scourge of creeping multiculturalism. Now that Rao has been sworn in to a lifetime appointment of passing judgment with the full effect of the law, it's worth looking at another dispute that arose during the hearing – namely, how she should approach her legal and ethical responsibility to recuse herself from cases involving rules she worked on as OIRA administrator.
In an exchange with Sen. Dianne Feinstein (D-Cal.) during the hearing, Rao pointedly refused to commit to recusing herself from such cases, only meekly promising to make recusal decisions on a case-by-case basis. Belying this naked attempt at obfuscation, though, the applicable law on judicial recusal makes it crystal clear that in Rao's case, recusal is anything but the "close call" she would like to pretend it is. In its broadest terms, that law – not a guideline, but a law – provides that sitting federal judges "shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned" (emphasis mine). Needless to say, Rao's involvement as the OIRA administrator in the review of a particular rule would raise several significant and troubling questions about her impartiality if that rule were to come before her in the context of a legal challenge.
As a threshold matter, the role of OIRA's centralized review process, as spelled out in Executive Order 12866 and other related successor orders, is to evaluate a draft rule's legal and policy underpinnings, particularly when those issues involve technically difficult or controversial questions. Unsurprisingly, disputes over precisely these issues would be at the heart of any legal challenge to the rule once it is finalized.
The fact that a rule has cleared this OIRA review process under Rao's watch suggests two things about Rao's relationship to the rule's substance. First, it suggests that Rao has given the rule a great deal of thought, leading her to form an opinion about the legal and policy merits of that rule. As such, she would be unable to approach a later legal challenge to that rule with anything resembling an open mind. Second, it suggests that to at least some degree, Rao actually supports or agrees with the legal and policy basis for the rule. (Or in the event that she disagrees with the legal and policy basis but was somehow overruled, all the more reason to think she wouldn't have an open mind.) This raises the risk that she would approach a judicial challenge against the rule's legal or policy justifications with an inherent skepticism or inherent support and thus would be unlikely to serve as a neutral referee in disputes regarding those legal and policy matters.
Indeed, the distinctive role the OIRA administrator plays in the centralized review process further underscores these concerns. As the defenders of unitary executive theory are fond to point out, one of the most significant responsibilities that Executive Order 12866 places on OIRA administrators is to "provide meaningful guidance and oversight so that each agency's regulatory actions are consistent with . . . the President's priorities." The order further empowers the OIRA administrator to mediate any disputes that might exist between the president and a rulemaking agency regarding that agency's draft rule. And when a resolution cannot be reached, the OIRA administrator can effectively overrule the agency, sending it back to the drawing board.
Bearing all this in mind, the role of OIRA administrator is not all that dissimilar from that of a lobbyist – hundreds of which have lined up at OIRA over the years to try to ensure that pending rulemakings are "consistent" with their client's "priorities." The only differences are (1) that the OIRA administrator's client happens to be the president and (2) that the president's views nearly always win out at OIRA, to the extent consistent with applicable law.
If a former lobbyist were elevated to the position of federal judge, there would be no question that they should be required to recuse themselves from cases involving challenges to any particular rules that they had worked on as a lobbyist. None of the differences between Rao's former work as OIRA administrator and that of a garden variety lobbyist can justify a different conclusion.
In sum, relevant recusal law would seem to weigh heavily in favor of a blanket recusal for Rao in all cases involving rules that underwent OIRA review during her tenure as OIRA administrator. But, if Rao still insists upon making the recusal determination on a case-by-case basis, then I would suggest the following categories of cases for which the argument for recusal would be especially strong:
- "Economically significant" rules. Generally, these are the rules with "an annual effect on the economy of $100 million or more," and Executive Order 12866 singles them out for special treatment, including requirements for intensive cost-benefit analyses. Because these rules are subject to the most searching reviews from OIRA, and thus would receive careful attention from the OIRA administrator, it is reasonable to conclude that Judge Rao would not be able to approach a judicial review of these rules with an open mind. Examples of economically significant rules from Rao's tenure include the Department of Agriculture's rule establishing new eligibility requirements for Supplemental Nutrition Assistance Program assistance for able-bodied adults without dependents and the Food and Drug Administration's rule that would extend compliance dates on updated nutrition labeling requirements for food. (Note that these examples do not suggest that legal challenges to these rules would necessarily be brought in the D.C. Circuit Court of Appeals where Judge Rao now sits or that she would be among the randomly selected judges to hear a challenge to these rules if such challenges were brought before the D.C. Circuit.)
- Rules that "raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in" Executive Order 12866. Executive Order 12866 authorizes OIRA to review all "significant" rules, which it defines as rules having one or more category of attributes. The economically significant rules noted above are one category of significant rules. The "novel legal and policy issues" category is another, and it serves as a kind of catch-all "elastic clause" that enables OIRA to assert its review authority over nearly any rule it wishes. In general, these rules tend to be the most politically controversial, even if their economic impact is relatively small. In light of their controversial nature, which is likely to be what motivates a legal challenge against these rules in the first place, Judge Rao should steer well clear of cases involving these rules. Incidentally, OIRA never documents which rules it reviews because they fall within this category, so it is impossible to provide examples of these rules for Rao's tenure as OIRA administrator. But she knows which ones they are, and should recuse if they come before her.
- Rules for which the review period lasted longer than 90 days. According to Executive Order 12866, OIRA reviews of rules are supposed to last no longer than 90 calendar days, although this mandate is freely ignored. When the review period lasts longer than 90 days, this suggests that the rule is particularly controversial or is receiving an unusually intrusive review from OIRA. Whatever the explanation, it is likely that the OIRA administrator has greater involvement in such reviews, making these rules prime candidates for recusal by Judge Rao. Examples of such longer review rules from Rao's tenure as OIRA administrator include the Department of the Interior's rollback of safety standards for blowout preventers and well control for offshore oil drilling and the Environmental Protection Agency's rule establishing a narrower scope of waters that are protected under the Clean Water Act.
- Rules that were the subject of meetings with outside lobbyists. One of the most controversial aspects of OIRA's centralized review process is that it permits lobbyists for the very industries that would be subject to a rule's requirements to come in and seek to weaken or block a rule while it is undergoing OIRA review behind closed doors. It's one thing for lobbyists to make their case to agencies as they develop rules, and they do. But it's a different matter to lobby OIRA staff who lack expertise in the substantive issues at stake in the rules and who are housed in the belly of the political beast that is the White House. Such lobbying meetings are strong indicators that a particular rule is either unusually controversial or complex. Moreover, the strong imbalance of these meetings in favor of regulated interests also means that OIRA personnel, including the administrator, risk being left with a misleading portrayal of the rule's merits. These conditions would strongly counsel in favor of Judge Rao recusing herself from cases involving these kinds of rules. Examples of rules from Rao's tenure that were the subject of meetings with outside lobbyists include the Department of Education's rule rolling back "gainful employment" requirements for colleges and universities (which was the subject of 10 lobby meetings that we know about) and the Federal Aviation Administration's rule to establish new standards governing the use of drones (which was the subject of 11 lobby meetings that we know about).
In all likelihood, the bulk of the rules that OIRA reviewed during Rao's tenure as administrator would fit one or more of these conditions, making these rules of thumb largely duplicative of the blanket recusal she should adopt anyway. But, they're illustrative of the many reasons that Judge Rao should recuse herself from cases involving rules that underwent OIRA review during her tenure.
And it is certainly worth giving the issue of Rao's recusal from these types of cases careful consideration since the D.C. Circuit Court of Appeals serves as the venue for a disproportionate number of legal challenges against federal regulations. In any event, given the nationwide recognition of the D.C. Circuit's unique expertise on matters of administrative law and regulatory policy, the decisions it renders in such cases tend to have strong persuasive authority in the other federal judicial circuits. What's more, the U.S. Supreme Court's relatively small docket (along with its general tendency to avoid cases involving challenges to federal regulations) means that decisions by the D.C. Circuit tend to serve as the last word.
In short, worries about how Rao approaches her recusal decisions are not merely academic. In the coming years, she will likely face dozens of opportunities on which to make a "case-by-case" determination. Sadly, Rao's record as OIRA administrator provides little hope that she would hold herself to the highest levels of professional ethics in making these decisions. As a federal judge, though, she must do better. The rules of thumb outlined above offer some guidance for doing just that.