From: SSRN

Eloise Pasachoff

Georgetown University Law Center

Yale Law Journal, Vol. 125, 2016, Forthcoming


A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control — in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget execution, and management and shows how these levers can control agency policymaking. These levers have some salutary aspects, especially in their valuable coordination work throughout the administrative state, but they also raise a series of accountability concerns related to opacity, the extensive discretion afforded to civil servants and lower-level political appointees, and the potential for substantive policy (and political) choices to be obscured by technocratic-sounding work. The Article concludes with a reform agenda, mapping out ways that the President, OMB, Congress, and civil society should respond to these accountability problems. Future analyses of OIRA’s authority should incorporate discussion of the complementary power of OMB to use the budget as a source of agency policy control.


511. For example, an emerging body of scholarship considers the possibility that agencies try to avoid OIRA review by changing the form of their policymaking and discusses what OIRA’s response should be to this potential phenomenon. See, e.g., Mendelson & Weiner, supra note 79, at 481-507 (creating a typology of OIRA review avoidance tactics and suggesting that “the problem of agency avoidance and response measures [is] . . . a problem of optimal regulation”); Nou, supra note 19 (discussing agency incentives to avoid presidential review). While the literature on OIRA avoidance has not yet incorporated consideration of the RMOs’ authority over agency policymaking, the RMOs’ work greatly increases the capacity of OMB to oversee agency action of all varieties. Future work on OIRA avoidance should thus include analysis of the RMOs’ collaboration with OIRA and overall oversight. Compare Mendelson & Weiner, supra note 79, at 470 n.86 (noting in passing that “it is unclear how often the budget side of OMB acts to assist the regulatory side of OMB and OIRA”), and Tozzi, supra note 80, at 67 (recommending that “primary jurisdiction for the review of select rules [be assigned] to budget examiners”), with Copeland, supra note 19, at 120 (suggesting that program examiners already need to “sign off” on OIRA’s review of rules for the program examiners’ agencies), Sunstein, supra note 19, at 1845 (noting close collaboration between RMOs and OIRA on rules of shared interest), and Program Examiner, supra note 74 (explaining that program examiners “perform . . . regulatory analyses”).

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