Beyond Structure and Process: They Early Institutionalization of Regulatory Review

From: Paper prepared for the Annual Meeting of the Midwest Political Science Association, Chicago, Illinois, April 2017

Andrew Rudalevige


The Office of Information and Regulatory Affairs (OIRA) these days has a bipartisan fan base, but as regulatory review was being established as a presidential power in the 1970s and early 1980s, this was not the case. This paper draws extensively on archival documents to examine the origins of regulatory review in an effort to understand how it established itself as a constant of presidential management. Successful institutionalization is not simply a matter of structure and process – that is, adding a box to an organizational flow chart – but requires resources ranging from staff, autonomy, political leverage, and expertise.

White House Review of Independent Agency Rulemaking: An Essential Element of Badly Needed Regulatory Reform

Editor’s Note: See, A Blueprint for OMB Review of Independent Agency Regulations (CRE, 2002).

From: The Heritage Foundation


Heavy-handed federal regulation acts like an excessive tax on the American economy, stifling economic growth and innovation. In order to enhance its effectiveness in paring back overregulation, the Office of Information and Regulatory Affairs (OIRA) should extend its cost-benefit oversight to rules proposed by “independent” federal agencies, which are responsible for a large proportion of onerous regulations. President Trump, therefore, should promulgate an executive order directing independent agencies to submit their major rules for OIRA analysis, consistent with his constitutional authority to take care that the laws be faithfully executed. That Order should also require independent agencies to undertake additional regulatory reform initiatives that the President recently has placed on executive branch agencies.

Executive Order Requirements for Informal Rulemakings

From: Administrative Conference of the United States

Tables of Executive Order Requirements (to later include OMB guidance and statutes)

Todd Rubin

In the table below, the Administrative Conference has identified a comprehensive list of extant executive orders that apply to most agencies’ informal rulemaking activities (i.e. rulemaking pursuant to Section 553 of the Administrative Procedure Act (APA)). Three of the executive orders: 12866 (Regulatory Planning and Review), 13132 (Federalism), and 13175 (Consultation and Coordination with Indian Tribal Governments) are briefly described in the main table, but also have their own tables to which the main table links.

Of “Workarounds” and Bureaucrats

From: The Regulatory Review

Civil service reformers should consider changes to lengthy, single-agency employee tenures.


Verkuil might also have noted another, related problem, this one arising in part from long careers in a single agency. Many civil servants work in cloistered and self-referential interpretative communities. A common result is that they stand resolutely on entrenched agency interpretations of rules—not all of them even reasonable, let alone compelled—that can deprive the system (often other affected agencies) of the flexibility to respond to new circumstances and embrace suggestions for better ways of doing things. There is seldom effective recourse to outside interpreters—federal judges, lawyers at the U.S. Department of Justice’s Office of Legal Counsel, officials at OMB—to tell an agency that its own interpretation of the law may not be the only, the best, or even a reasonable one.

GAO: Federal Reserve at Risk of Regulatory Capture

From: GAO Report GAO-18-118, “LARGE BANK SUPERVISION: Improved Implementation of Federal Reserve Policies Could Help Mitigate Threats to Independence.”

“Optimal Ossification” — My New Paper

Editor’s Note, from Professor Nielson’s paper:

it does not matter whether an agency likes a procedural requirement; if the agency does not comply with the requirement, a court or OIRA will be there to enforce compliance.

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Aaron Nielson

A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.*

Here is the abstract: