OIRA Watch

CRE Contributions to the Administrative State

Bruce Levinson, Editor

July 18  Reining In Government by Dear Colleague Letter: An Update

July 17  Facebook’s Crypto Woes Deepen as Mnuchin Joins Parade of Critics

July 16  SEC Finalizes Most Expensive Regulation of Trump Era

July 15  Correcting a Persistent Myth About the Law that Created the Internet

July 11  Regulatory delay across administrations

July 10  How FDA is Regulating E-Cigarettes

July 9  Before And After OIRA Review Versions Provided For Proposed GILTI Regs

July 8  What Does Risk-Based Regulation Mean?

July 5  Guidance Documents of the Week

Regulatory Pacesetters

                          CRE on the EPA Science Initiative

CRE is not supportive of the EPA science initiative at this time because it creates a new regulatory regime without first exploiting to the fullest the existing regulatory regime which consists of the Data Access Act and the Data Quality Act.

With respect to the existing regulatory regime please note:

1. OMB neutered the Data Access Act when it opined that the DAA only applied to reports which carry the effect and force of law.

Editor’s Note: Please see Regulatory Pacesetters for cutting edge regulatory developments.

In a meeting sponsored by the Federalist Society on May 17, 2017 Professor David Vladek of Georgetown University law school made two observations:

(1) That there is no need for the REINS Act given the Congressional Review Act, and

(2) That the Reagan Executive Order 12291, which instituted government-wide centralized regulatory review is, along with the APA, one of the two most influential documents of the regulatory state. (N.B. Centralized Regulatory Review began in the Nixon Administration, was given statutory support by Carter [Paperwork Reduction Act] and went government-wide [Reagan])

CRE has been a long term advocate of rejuvenating Regulations.gov. It has made a number of recommendations to the Administrative Conference of the US which is now in the process of addressing the matter.

CRE is pleased that a firm with Silicon Valley roots has made similar suggestions, see the recent report of Argive which concluded:

.. Regulations.gov’s development and, consequently, the interface stands out as antiquated in 2017.

Instead of serving as an efficient communication tool, Regulations.gov exists as a formality to legislative requirements of the rulemaking process.

CRE is continuing its work on this important program; interested parties should contact Jim Tozzi.

Scores of articles have been written on OIRA by legal academicians and far fewer, unfortunately, by other disciplines. The following articles are the pacesetters of the latter category based on their emphasis on the evolution of OIRA.

Please see this post.

Publisher’s Note: Lawyers and economists: Trained but not educated. The aforementioned inference is drawn from the public comments which follow and  reflect the  wide range of possible positions held by members of Congress who oversee the confirmation of the Administrator of OIRA–the White House Office  of Information and Regulatory Affairs (OIRA) which is the cockpit of the regulatory state.  Although it would be difficult–but not impossible–for a person to make contributions to OIRA without some background in both economics and administrative law,  we believe the social entrepreneurial skills of any nominee out rank all other considerations. We make this statement because it is difficult to identify any of the  game changing events that lead to the establishment of OIRA which are dependent primarily on economic or legal skills.  Furthermore we are not convinced that the skills necessary to establish the most important institutional feature of the regulatory state differ from those necessary to operate it on a sustainable basis. Societal problems change with the passage of time and the skills necessary to maintain OIRA’s leadership role change accordingly.

CRE has maintained a library of the regulatory initiatives of every Administration for which centralized regulatory review was either under development or in actual operation. The initiatives are posted on the website TheOMB.US maintained by the Center for  Regulatory Effectiveness.

The posts on the Trump Regulation webpage will chronicle the official documents disseminated by the Trump Administration which focus on structural and process changes to the administrative state; Focus on OIRA will contain the accompanying commentary on the documents.

Commentary

OIRA News

05/15/2018  Executive Order Enhancing the Effectiveness of Agency Chief Information Officers

A must read presentation by Professor Rudalevige of the Department of Government at Bowdoin College to the Midwest Political Science Association is an analysis of the factors and passions that lead to the creation of OIRA.

The presentation is not only based upon a review of the published literature but is also based upon an in-depth review of archival information collected from the National Archives, Presidential Libraries and private collections.

The thrust of the presentation is best stated in this statement:

From: The White House

Ms. Rao is a professor at the Antonin Scalia Law School at George Mason University, where she founded and directs the Center for the Study of the Administrative State.  Her research and teaching focuses on constitutional and administrative law.  Currently a public member of the Administrative Conference of the United States, Ms. Rao has previously served in all three branches of the federal government.  She served as Associate Counsel to President George W. Bush; counsel for nominations and constitutional law to the U.S. Senate Committee on the Judiciary; and law clerk to Justice Clarence Thomas of the U.S. Supreme Court.  She practiced public international law and arbitration at Clifford Chance LLP in London.  Ms. Rao received her JD with high honors from the University of Chicago and her BA from Yale University.

Editor’s Note: OMB’s Federal Register notice requesting comments, by June 12, 2017, on reorganizing the Executive Branch is attached here.

From: The White House

On March 13th, President Donald J. Trump signed an Executive Order that will make the Federal government more efficient, effective, and accountable to you, the American people. This Executive Order directs the Director of the Office of Management and Budget to present the President with a plan that recommends ways to reorganize the executive branch and eliminate unnecessary agencies.

President Trump wants to hear your ideas and suggestions on how the government can be better organized to work for the American people.