Regulatory Review for Independent Agencies
by Neomi Rao
The gap between textbook administrative law and actual practice exists in many areas, but perhaps nowhere more so than with respect to the so-called independent agencies. In theory, such agencies operate “independent” of the control and direction of the President. In practice, the White House has myriad mechanisms to oversee and even to control these agencies. One practical area in which the separation remains is regulatory review—no President has extended direct regulatory oversight to independent agencies.
Should independent agencies be subject to White House regulatory oversight through the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA)? The 2016 Report to the President-Elect developed by the American Bar Association’s Section of Administrative Law and Regulatory Practice urges the President-Elect “to extend Executive oversight to many independent regulatory agencies.” As the Report explains, “Much of the policymaking of independent agencies is not functionally distinct from that of executive agencies, and where that is the case, presidential oversight is appropriate.”