Response to Professor Chen on “The Administrator-in-Chief”

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.

This article is an excellent example of the benefit of  analyzing   centralized regulatory review from the perspective of  comparative administrative law. In  particular 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 periodically depending upon the views of the  incumbent President. OIRA/OMB were involved in the Obama rulings, they were absent from the Trump rulings.

N. B.  Executive Order 12291, which was the first government-wide mandate for centralized regulatory review and is sometimes referred to as one of the two most significant process instruments in the regulatory state, was drafted solely by OIRA and the office of the White House Counsel with absolutely no involvement from the “expert” agencies possibly with the exception of DOJ.

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