ChatGPT states:
The emergence of a “new constitutional baseline” refers to a fundamental shift in the prevailing principles and assumptions that guide constitutional interpretation and governance within a political system. A constitutional baseline is the set of established rules, doctrines, and institutional arrangements that create the context for how ordinary politics and legal conflicts are resolved. When this framework undergoes a significant change, it can be described as a new constitutional order.
Did centralized regulatory review create a new constitutional base line?
That’s a very sharp question.
Centralized regulatory review (especially as it developed in the U.S. through OMB/OIRA starting in the 1970s–1980s) did not create a new constitutional baseline in the sense of amending or redefining the Constitution itself. The Constitution does not mention regulatory review, cost–benefit analysis, or OIRA.
But—it did create a new administrative baseline that functions almost like a constitutional convention in practice:
- Before centralized review: Agencies had broad discretion to regulate within their statutory authority, with oversight mainly through courts (judicial review) and Congress.
- After centralized review: The Executive Office of the President, via OIRA, gained a gatekeeping role requiring agencies to submit significant rules for cost–benefit analysis and interagency review before publication. This created a de facto expectation that major rules must survive OIRA review, even though no statute explicitly mandated this at first.
So:
- Constitutionally: No formal new baseline was created.
- Practically/institutionally: Yes — centralized review became a quasi-constitutional norm within the administrative state. Presidents of both parties since Reagan have maintained it, making it a durable feature of modern governance.
Some scholars describe this as an “executive constitutionalism” move — where presidential control over the regulatory state is entrenched without formal constitutional change
Courts have generally not treated centralized regulatory review (OIRA oversight, cost–benefit review, etc.) as creating a new constitutional requirement. But their handling of it has quietly entrenched the practice:
- Judicial Review Focuses on Statutes, Not OIRA
- When reviewing regulations, courts look to see if agencies acted within their statutory authority (Chevron, arbitrary-and-capricious review under APA §706).
- Courts rarely probe OIRA’s involvement. If an agency clears OIRA and finalizes a rule, the court reviews the agency’s stated reasoning — not the behind-the-scenes OIRA negotiations.
- Courts Indirectly Bolstered the Practice
- By not invalidating OIRA-based procedures, courts effectively normalized centralized review as a lawful executive practice.
- In some cases, like Entergy Corp. v. Riverkeeper (2009), the Supreme Court explicitly upheld the permissibility of cost–benefit analysis when statutes are silent. That reinforced OIRA’s methodology as a default baseline.
- The “Presidential Control” Question
- Courts have not said: “The President must control rulemaking.”
- But they have allowed Presidents (through OIRA) to insert themselves into the process — so long as agencies still sign off formally on the rule.
- This creates a kind of dual accountability: the rule is both agency-driven and White House–screened.
- Quasi-Constitutional Norm
- Over four decades, bipartisan presidential practice + judicial noninterference = a new baseline in the administrative state, even if not textually in the Constitution.
- Some scholars argue this resembles a constitutional convention (an entrenched norm that operates like constitutional law, without being written into the Constitution).
📌 Bottom line: Courts haven’t declared centralized review a constitutional requirement, but by deferring to it and upholding cost–benefit as a legitimate tool, they helped make it a durable structural feature of modern governance.
Let’s map how each president since the creation of OIRA helped entrench centralized regulatory review as a “baseline.”
Carter (1977–1981)
- Set the stage: Issued Executive Order 12044 (1978), requiring agencies to prepare “Regulatory Analyses” for major rules.
- This was the first real attempt at systematic executive oversight of regulation, though it was lighter-touch than what came later.
Reagan (1981–1989)
- Turning point: Issued Executive Order 12291 (1981).
- Required all “major rules” to undergo cost–benefit analysis.
- Gave OMB’s OIRA veto-like power — no rule could be published until OIRA cleared it.
- This marked the birth of centralized regulatory review as we know it.
George H.W. Bush (1989–1993)
- Continued Reagan’s framework with only minor tweaks.
- By sticking with it, he reinforced that centralized review was not partisan, but institutional.
Clinton (1993–2001)
- Executive Order 12866 (1993) replaced Reagan’s order.
- Softened language, emphasized benefits “justify” costs rather than “exceed” them.
- Focused on “significant” rules, not all rules.
- But crucially: kept OIRA in place.
- By doing this, Clinton normalized centralized review under Democrats, entrenching it as bipartisan.
George W. Bush (2001–2009)
- Expanded review to include guidance documents (not just formal rules).
- Emphasized regulatory impact analysis.
- Cemented OIRA as a policy arm of the White House.
Obama (2009–2017)
- Maintained Clinton’s EO 12866.
- Issued EO 13563 (2011), reinforcing cost–benefit review and requiring retrospective review of old rules.
- By embracing OIRA, Obama confirmed that centralized review was here to stay, not just a Republican tool.
Trump (2017–2021)
- Issued EO 13771 (2017): “Two-for-one” rule (for every new regulation, agencies must eliminate two).
- Required agencies to offset new regulatory costs.
- While controversial, this still used OIRA as the central enforcement body — proving its structural durability.
Biden (2021–present)
- Revoked Trump’s “two-for-one” EO but kept OIRA intact.
- Issued EO 14094 (2023): modernized OIRA review.
- Raised the threshold for “significant” rules to reduce bottlenecks.
- Emphasized equity, distributional impacts, and modern cost–benefit methods.
- Shows the flexibility of the baseline: every president modifies it, but none abolish it.
✅ Summary of the baseline:
- Carter – planted the seed.
- Reagan – created strong centralized review.
- Clinton – bipartisan normalization.
- Bush II, Obama, Trump, Biden – each modified but preserved OIRA.
So across seven presidents, four decades, and both parties, centralized review became a quasi-constitutional convention of the modern regulatory state — not textually required, but functionally entrenched.
Bottom Line
ChatGPT said:
Centralized regulatory review in the U.S. federal government was pioneered in the early 1970s within the Office of Management and Budget (OMB), before OIRA formally existed.
- The Nixon Administration (1971) first introduced a program of centralized review through OMB’s “Quality of Life Review,” which required agencies (like EPA) to submit major regulations for review before publication.
- The idea was carried forward and refined under later presidents.
- The Paperwork Reduction Act of 1980 formally created the Office of Information and Regulatory Affairs (OIRA) inside OMB, institutionalizing centralized regulatory review.
- Jim Tozzi, a career OMB official, is often credited as the principal architect of centralized regulatory review, since he played a leading role in designing and implementing OMB’s review processes during the Nixon, Ford, Carter, and Reagan administrations.
So in short:
- Institutional Origin: Nixon’s OMB (1971, Quality of Life Review).
- Legal Foundation: Paperwork Reduction Act of 1980 (created OIRA).
- Key Architect: Jim Tozzi.
