Vacancy

Daniel Farber

Sept. 10, 2021

This post was originally published on Legal Planet. Reprinted with permission.

The Biden administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of his first year. Biden's delay in filling this important office is hard to defend.

The main reason for the delay is probably that Biden doesn't have the OIRA administrator's boss in place, either. Biden's nominee to head the Office of Management and Budget (OMB) had to be withdrawn when her Senate support evaporated. That was on March 2, however, and there's still no new OMB nomination six months later. Maybe the reason is an inability to find a candidate who can win approval across the Democratic Party's spectrum, given wildly divergent attitudes toward government spending. Whatever the reason, that vacancy is regrettable, but it's no reason to leave OIRA vacant, as well.

OIRA does have an acting administrator, but there are limits to how much a temporary office holder can accomplish, particularly when OIRA is pushing back against other agencies or members of Congress. There are complaints that important regulatory initiatives are getting bogged down in the office due to the lack of strong leadership.

In the absence of permanent leadership at OIRA, the job of steering regulations seems to have passed to the National Economic Council, a group of presidential advisors. This is something of a regression to the George H.W. Bush days, when Dan Quayle led a shadowy White House regulatory oversight group. Congress made the director of OIRA a Senate-confirmed position in part to ensure accountability. While OIRA's transparency is not all it should be, it does at least have rules defining its role, logs of outside contacts such as conversations with industry lobbyists, and records of what comes in and out its door.

Biden has called for a major rethinking of the standards for regulatory review. The effort is long overdue. It is especially important to have a permanent OIRA administrator who can have a seat at the table. The task force needs to have the input of people who are familiar with the existing system and who will have to implement any changes.

In short, there are many good reasons to get a strong, permanent administrator of OIRA in place. That should be a priority for Biden given his regulatory initiatives.

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