Historically OIRA, the Office of Information and Regulatory Affairs housed in the White House Office of Management and Budget, has not reviewed Executive Orders. The review process is usually reserved for the White House Counsel’s office and the Department of Justice. Both of the aforementioned institutions are staffed by extremely high caliber individuals; nonetheless they lack the day-to-day operating knowledge of OIRA with respect to the intricacies of the administrative state.
Those who are ignorant of history either overstate or understate the significance of current events.
Nothing could be truer than an examination of the evolution of centralized regulatory review. In the venting of this post it was surprising to learn that many individuals believe that centralized regulatory review is an entitlement in lieu of an earned right.
We received a number of comments on our post on Notice and Comment.
One comment that was shared by a number of commentators was that the formulation and implementation of centralized regulatory review as reported in the press was at times not-transparent and overly forceful.
The aforementioned statement is a fair one. But in itself is a statement as to the need for the many regulatory practitioners who believe that centralized regulatory review is an entitlement and who have a nanosecond interest in history to spend some time learning of its maturation. Starting from its initial conception during the Johnson Administration continuing through the Reagan Administration there was outright hostility in some areas of the government to the idea of centralized regulatory review. Consequently it became very obvious if one were going to launch the Good Ship OIRA it was not going to happen by holding hands and singing kumbaya.
Editorial Note: The following from the American Constitution Society
Our first proposal is to return the White House review process to the understanding articulated when President Reagan issued the first executive order creating a systematic process of White House review. In 1981, soon after he entered office, President Reagan issued an executive order providing for an approval process quite similar to the one that exists today under a Clinton-era executive order. The Office of Legal Counsel in the Department of Justice reviewed Reagan’s executive order for legality. In its opinion confirming the legality of the executive order, the OLC emphasized that the executive order did not purport to displace the authority of the acting agency. The OLC stated that “a wholesale displacement might be held inconsistent with the statute vesting authority in the relevant official.”
Three recent Presidents, George W. Bush, Barack Obama and Donald Trump have utilized to the fullest the issuance of Executive Orders to implement their programs. There is a significant likelihood that the use of Executive Orders will continue to increase, probably at a rate considerably greater than most observers realize.
The Presidency is not subject to the Administrative Procedure Act, nor should it be; but what is the role of centralized regulatory review, the review of “regulations” by OMB, in this emerging environment? There is no demonstrable database that suggests that OIRA has been the given the opportunity to review Executive Orders before they are released.
Calendar Year 2019 marks the fiftieth year since Professor Alan Schmid on leave to a position in the Pentagon declared that benefit-cost analysis should be applied to regulations–a giant departure from its then use to analyze the economic merits of civil works projects such as inland waterways and dams. The foundation for centralized regulatory review (White House Office of Management and Budget review of agency regulations) was laid when, in the Johnson Administration, the Office of the Secretary of the Army began reviewing benefit-cost analyses of Corps of Engineers regulations. Two years subsequent to the publication of Professor Schmid’s paper the Office of Management and Budget initiated the first centralized regulatory review process when the Nixon Administration initiated a review of environmental, health and safety rules with an emphasis on EPA rules. The resultant program which required an analysis of the benefits and costs of a regulation was named the Quality of Life Review and was the first centralized regulatory review program.