A number of Trump judicially determined abuses of Executive Branch rulemaking authorities have been struck down without reliance on Chevron. What remains is being addressed by the Biden Administration either through the exercise of its rulemaking authorities or in response to petitions filed pursuant to the Information Quality Act. What’s there not to like about representatives of an elected official acting as the tie breaker in lieu of an unelected individual(s)? Furthermore, with the ever increasing use of holistic decision-making processes and the attendant improvement in the analytical tools used in the Executive Branch it is clear that neither of these are in the long suit of the judiciary.
November 6, 2020 CRE publishes three options for managing the administrative state, # 2 is a proactive role for OIRA.
January 20, 2021 President Biden issues his Modernization Executive Order and directs OMB to report on a possible proactive role for OIRA
January 24, 2021 CRE publishes a Critique of the issues the Biden Administration should address when implementing its regulatory agenda; a proactive role for OIRA is the first one on the list.
“Dr. Shultz’s prodigious inside knowledge of the U.S. government was rivaled by few figures in recent memory, and his soft-spoken, cerebral manner obscured his strong conservative views about the wisdom of keeping spending under control, limiting government regulation and vigorously confronting terrorists,”
Dr. Shultz signed the 1971 Memorandum which initiated centralized regulatory review in Executive Branch Agencies. He passed on February 6, 2021 at 100 years of age. See this detailed account of the enormity of his contribution to the effective management of the administrative state.
With the seating of the Biden Administration Pro-Regulators are being heard in the halls of OIRA as result of three recent political appointments therein. Elections matter because President Biden took the helm of the presidency which includes OIRA. President Obama, as is the case with President Biden, had a number of regulatory priorities, in particular healthcare. As a result, in part, of OIRA’s emphasis on economically sound regulations as personified by the use of benefit-cost analyses, the majority of President’s healthcare regulations are still in existence. For this reason the constant criticism by the Progressives of Professor Sunstein for acting in concert with the wishes of the President are not only inconsistent with the recognized concept of Elections Matter but is also not commensurate with the accomplishments to date of the Pro-Regulators.
October 2021 will mark the fiftieth year of continuous centralized regulatory review. During this time period we have witnessed the issuance of a series of landmark Executive Orders including EO 12291, EO 12886, EO 13563 and EO 13371. Each of the aforementioned Executive Orders are based on the two key provisions of the original mandate for centralized regulatory review promulgated in October 1971 which stated:
(1) Proposed and final regulations…should be submitted to the Office of Management and Budget.