Presidential Regulatory Authority: Two Views

Editor’s Note: Despite the definitive U.S. Court of Appeals ruling in Sierra Club v. Costle, the legitimacy of Presidential authority over the review and approval of federal regulations has been a contentious issue since the process was established by then OMB Director George Schultz during the Nixon Administration. The contemporary scholarly debate on centralized regulatory review has been enhanced by the two recent publications, (1) an Administrative Law Review article by Professor Ming H. Chen, “Administrator-In-Chief: President and Executive Action in Immigration Law” available here and (2) CRE’s response, below.


Re: Professor Chen article in the Administrative Law Review

Administrative law scholars when writing on centralized regulatory review often describe the state of affairs relative to a legal metric: usually the constitution, the APA or both. On the other hand Professor Chen utilizes a refreshing approach which bases her analysis on a comparison of two different groups capable of managing centralized regulatory review: White House personnel and experts in the executive branch agencies. The Professor concludes: “But President Obama channeled his executive actions through experts and agencies. President Trump has concentrated power in the White House and insulated executive power from agency expertise.”

The professor also concludes: “OIRA uses blunt tools and limited measures of agency performance, asserting efficiency and cost-savings as the primary manifestations of administrative competence without adequately considering values such as fairness, reputation, legal and policy acumen, operational success and commitment to organizational mission.” One glaring deficiency in an otherwise noteworthy article is the failure of the professor to describe how the Obama proposals were issued notwithstanding OIRA’s “use of blunt tools and a lack of legal and policy acumen” as well as the possibility of her not accepting the fact that the White House is an office separate and distinct from OIRA; see this proposal for expanding the scope of law school curricula.

It appears that the professor sanctions the bypassing of a statutorily-based office (OIRA) vested with regulatory oversight responsibilities either on a continued basis or depending upon the incumbent President. OIRA/OMB were involved in the Obama rulings, they were absent from the Trump rulings.

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