Presidential Influence over Agency Rulemaking Through Regulatory Review
Editor’s Note: This is a poster child article that demonstrates the need for an OIRA Teaching Module to be available for use in the nation’s leading law schools. OIRA does not have a nationwide constituency capable of defending the important role it plays in the governance of the regulatory state. Informed millennials in schools of law, public policy, public administration, political science and economics could form the basis for such a constituency. It is far more effective to educate students in their formative years as opposed to attempting to re-educate them after they have formed definitive conclusions—particularly when they become employed by both an influential Congressional Committee and as a law clerk for a Senior US District Court Judge.
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GW Law Review Vol. 82, NO. 5 (July 2014)
The current state of OIRA review raises serious questions about the proper scope of executive influence over decisions committed by law to the discretion of agency officials. This Essay argues that OIRA review as currently practiced fails to comply with Executive Order 12,866, results in violations of statutory deadlines, and undermines the openness in administrative policymaking codified by the Administrative Procedure Act. It further argues that the present form of OIRA review exceeds the President’s constitutional authority to influence agency action through the removal power by circumventing the structural limits on the use of this power, resulting in impermissible direction of agency decisionmaking. To address these issues, the Essay calls for legislative and executive action to provide enforceable time limits for and increase the transparency of OIRA review.
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