An Attention-Getting History of the “Hard Look” Review by the DC Circuit Historical Society

Review of Agency Rules in the D.C. Circuit: Back to the Future?

In the 1970 influential judges on the D.C. Circuit engaged in a well-publicized debate about the appropriate scope of judicial review of federal agency rulemaking. One faction led by Chief Judge Bazelon believed that judges were experts on procedure not the substance of regulation and wanted the courts to ensure that agencies used whatever procedures were necessary to make the best decision and build the sort of record necessary to make the best decision. On the other hand, Judges Leventhal and Wright believed that mandating additional procedures, beyond those required in the Administrative Procedure Act (APA), would lead to over-proceduralization and would ultimately slow down the rulemaking process. They believed that, instead, judges should examine and try to understand the technical matters at issue in the rulemaking in order to determine whether the agency had exercised reasoned discretion. This review, conducted under the arbitrary-and-capricious test of the APA, was labeled “hard look” a term coined by Judge Leventhal.

OIRA and Regulation of the Social Media

Editor’s Note: In an article under preparation( p 43; fn 126) the author quotes a statement made by the  Council on Foreign Relations  that the United States has relinquished its position as the world leader in the development of mechanisms to improve the administrative state. The aforementioned result occurred because OIRA  is operating at a staff level of only 50% of the level it had at the time of its establishment nearly 40 years ago. That said OIRA should have its foot in the door with respect to the regulation or non-regulation of the social media. The absence of the US participation in this debate and the emergence  of the UK subsequent to its discussions with US social media interests reinforces the position of the Council on Foreign Relations. 

OIRA: Past, Present and Future

CRE is most appreciative of the comments we have received on the paper: OIRA Past Present Future June 2019 We encourage the public to continue to submit their comments by contacting CRE.

The public will be able to present its views on the paper at a meeting sponsored by the
Boyden Gray Center for the Study of the Administrative State: September 13, 2019—Cost-Benefit Analysis and the White House Approach to Regulatory Oversight.

Press inquiries at 202.265.2383

A Guide to Those Conducting Research on Executive Branch Operations in the Administrative State

The family of websites developed by the Center for Regulatory Effectiveness should be on the list of databases utilized when conducting research on Executive Branch operations in the administrative state.

Unlike many think tanks the overwhelming majority of the source content therein is not produced by CRE but instead includes must read high quality research conducted by others and so designated as a governing publication by CRE whether or not CRE is in agreement with its content. The material presented therein has been assembled over the half century which lead to  centralized regulatory review in the Executive Branch.

Benefit-Cost Analyses and the Regulatory Budget

See Notice and Comment



Is OIRA a Manifestation of the Principles Enunciated by Professor Jerry Mashaw?

Editor’s Note: In response to an earlier post which was reprinted on Notice and Comment we received a reoccurring question: Had OIRA been highlighted in the referenced book, what are the implications of doing so?

Since its establishment nearly four decades ago, the foundation for OIRA, the office located in the White House Office of Management and Budget responsible for the centralized regulatory review of regulations, has been studied primarily through the lens of judicially oriented administrative law. The concepts which underlie the positions stated in a recent book written by Professor Mashaw could bring an entirely different perspective to the origins and credibility of centralized regulatory review.

A Comment on: Administrative Law from the Inside Out—Essays on Themes in the Work of Jerry L. Mashaw

After a number of weekends the Editor has finished reading a very informative book written by a score of talented scholars and edited by Professor Parrillo of Yale University on the works of an administrative law legend, Professor Mashaw.

Selfishly we often read articles from the perspective of issues we are working on, in this instance centralized regulatory review and the Data Quality Act.

The text states:

For a generation, Jerry L. Mashaw, the most boundary-pushing scholar in the field of administrative law, has argued that bureaucrats can and should self-generate the norms that give us a government of laws.

The Impact of Public Citizen on Federal Regulatory Policy

Last evening I had the good fortune of being invited and attending the annual reception of Public Citizen. During the course of the event a number of discussions centered around the Old Washington, when we accorded those who differed with our position the respect they deserved. Notwithstanding our occasional differences on federal regulatory policy I recounted the enormous impact the organization had on public policy.

Most noteworthy was the Public Citizen’s work to convince the Supreme Court to overturn the one-house veto of regulations in the Chadha Decision. The decision was of far reaching impact because during my tenure as a career federal employee the one-house veto of regulations vested  Congressional committee staff with an enormous power to influence the content of federal rulemakings. The intervention of Public Citizen brought this toxic practice to an end.

From Lawfare– Case Closed: The Justice Department Won’t Stand Behind Its Report on Immigrants and Terrorism

Editor’s Note: Case Closed, really?  It should be noted  that notwithstanding the precedent-setting accomplishments of the plaintiffs that five years hence the report will continue  to  be available in its uncorrected form on the DoJ website unless the plaintiffs file for judicial relief. [ CRE has not reviewed the report in detail and consequently is addressing this matter solely as a procedural–not a substantive– issue under the Data (Information) Quality Act; CRE’s interest is in demonstrating that a court can review the denial of a DQA petition ].

The Annual ABA Section on Administrative Law Regulatory Summit

The Editor attended one of the most impressive of all annual events ever sponsored by the ABA Section on Administrative Law: The 2018 Administrative Law Conference: November 1-2, 2018 at the Washington Convention Center, Washington, DC.

The attendance was record breaking as was the quality of the topics addressed and the attendant presentations. The agenda addressed the pace-setting issues of the day.  The discussants were well prepared and included those of differing views.  A common refrain echoed throughout the summit was that the agenda was so enticing that it was impossible for a particular attendee to attend two panels at the same time.