ALR JBCA Yale-ABA
Options for the Management of the Administrative State
After forty years of existence, the Office of Information and Regulatory Affairs (OIRA) housed in the White House Office of Management and Budget has demonstrated that it is the fulcrum of the administrative state. In the establishment of OIRA the Congress, and subsequently the President, rightfully made one person publicly accountable for the numerous federal regulatory actions taken each day within the Administrative State. That said OIRA is one of the very few institutions that has the President’s back when well intentioned appointees to federal agencies fail to recognize that their actions are often guided by a natural migration toward a silo mentality. It are these actions to which the public holds the President accountable every four years.
Periodically CRE is asked for its views regarding the appointment of a particular nominee to be the Administrator of OIRA. To begin with, CRE never takes a position on the merits of a particular nominee. We do however express our views on critical considerations we believe pertinent to the nomination and Senate confirmation process.
The choice of the person to be the Administrator of OIRA should be dependent upon his or her ability to manage the daily operation of the administrative state in line with prevailing statutes and the priorities of the President, both of which should be incorporated into a well defined job description. In response to these awesome responsibilities CRE has compiled the following options for the management of the administrative state which in each case could be the substance of a well defined and public job description which in most instances has been notoriously absent from the OIRA confirmation process.
(1) A Substantial Enhancement of the Existing Program: Accord a far greater intensity to the review and promulgation of individual regulatory transactions including the review of proposed regulations, acting on Information Quality Act petitions and Information Collection Requests, operation of the regulatory budget, issuance of guidance documents and the dissemination of government-wide regulatory policies which govern a very significant number of governmental operations. A related initiative would be to increase the number of proposed rules reviewed by OIRA and to place greater public emphasis on the review of Requests for Correction filed pursuant to the Information Quality Act.
(2) Implement a Proactive Intervention Program to Address Existential Threats: Identify troublesome areas and develop and implement a government-wide regulatory program which addresses hot spots such as COVID-19 , climate change or decrepit infrastructure. The existing regulatory review program would continue but would not be of a priority comparable to that accorded to the Proactive Intervention Program; the historical methodologies developed by OIRA over the past four decades for regulatory analysis would continue to permeate OIRA decisions unless they are modified by the incumbent Administration, see OIRA 2.0.
(3) Initiate a Holistic Program for the Management of the Administrative State: Assemble, publish, seek continued public input and manage a multi-year, interagency, government-wide regulatory program and codify a Magna Carta which defines the scope of the attendant administrative state. The adoption of this option would put an end to ad hoc proposals by agencies void of any consideration as to how they relate to complementary or substitute programs of other agencies. This option would make it easier to implement a government-wide initiative of high priority to the incumbent Administration. Income distribution could be addressed within this option, see The Adoption of a Different Social Welfare Function?.
Notwithstanding the importance of addressing the aforementioned questions it is uncertain whether long term accomplishments can occur if OIRA’s staffing level is not restored to the level it had at its onset some forty years ago. With adequate staffing OIRA has the knowledge, position and institutional clout to ensure that a short-term accomplishment becomes a permanent fixture of not only the then current Administration but also one in a number of ensuing administrations, as was the case with centralized regulatory review.
Questions to be Addressed by Nominees
(1) Which one of the three aforementioned options is most appealing to the nominee?
(2) Given the fact that each of the previous reductions in OIRA staff levels are a result of decisions rendered by OMB Directors of both parties over a number of decades and not by the Congress, is there a need to increase the competitiveness of OIRA work products? How would such a task be undertaken?
(3) Is the nominee going to reside or preside, meaning will the nominee accept the position as the Administrator of OIRA without any commitment to return it to its staff level of forty years ago or will the nominee refuse to take the position if there is not a commitment to increase the OIRA staff level to its initial level in 1981, a request to be judged in a new environment where trillion dollar budget amendments are common place?
Editorial Note: Our preoccupation with staff levels is in recognition of the fact that the continued piecemeal reductions in the OIRA staff level is tantamount to its abolition by unobtrusive means; as of November 2020 OIRA’s staff level has been reduced approximately 40% from its level in 1981. However during the past four decades OIRA has been assigned a number of new responsibilities.
The Preferred Background of a Nominee
The bottom line is that if a choice is made as to which one of the three above scenarios is to define the primary mission of OIRA, which could be announced by an Executive Order, then the resultant choice should also define the qualifications of its Administrator. Therefore in lieu of fretting over whether the Administrator should be an attorney or an economist the search should be directed toward a person with a strong management capability, meaning the ability to process disparate information from a number of disciplines and meld them into a coherent mechanism which governs the substance of allowable actions to be taken in the daily operation of the administrative state. The ultimate decision criterion should be the candidate most qualified to meet the requirements set forth in the aforementioned job description.
Lastly, as a result of the pivotal role that OIRA plays in the management of the administrative state, its viability as a functioning institution is always on the line; consequently an Administrator with a strong dose of policy entrepreneurship is equal to or exceeds virtually all of the aforementioned criteria.
A Public Vetting of a Nominee’s Views on the Use of Executive Orders
Governing by the issuance of Executive Orders continues to increase, particularly as a result of the emergence of centralized regulatory review first brought about by the introduction of the Quality of Life Review in 1971. For this reason the exponential growth in Executive Orders should be accompanied by a public venting of the actions available to curb avoidance of the relevant jurisdictional limitations applicable to the issuance of executive orders.
A Library of Precedential Actions for the Management of the Administrative State
The Adoption of a Different Social Welfare Function?