Publishers Note ( November 2015)
What follows is an article written by a student for a law review that demonstrates the need for an OIRA Teaching Module for use in the nation’s leading law schools.
OIRA does not have a nationwide constituency capable of defending the important role it plays in the governance of the regulatory state. Informed millennials—having benefited from a knowledge of OIRA gained from the OIRA Teaching module—located in schools of law, public policy, public administration, political science and economics could form the basis for such a needed nationwide constituency. An informed constituency will make it easier for OIRA to do its job.
It is far more effective to educate students in their formative years than attempting to re-educate them after they have formed definitive conclusions.
To provide one example of our concern, there are many such examples, we encourage our readers to read the law review article noted below and after doing so determine whether the thrust of the law review article in any way comes close to making the point made by a noted scholar on the same subject:
However, in Sierra Club v. Costle the U.S. Court of Appeals for the D.C. Circuit rejected these arguments, finding that the regulations were not based on information arising from the meeting. Writing for the majority, Judge Patricia Wald went on in dictum to recognize not only the constitutional authority of the President to supervise executive policymaking, citing Myers v. United States, but also the desirability of such presidential oversight. See complete text. (p. 2501)
There is no Executive Order that gives OMB the authority to dictate the contents of a rule to an agency head. However over a period of nearly a half century centralized regulatory review both political parties have recognized that (1) OMB can present its views as well as those of other affected agencies to an agency head, and (2) the President at any time can exercise his or her power of removal to terminate the employment of an agency head—an authority that is exercised most prudently only after OMB has reviewed and so advised the President of the results of its review of a continuum of regulatory transactions emanating from a particular agency.
The following article, which is only one of a number of such articles, is long on the alleged deficiencies of centralized regulatory review but completely void of any mention of its merits not to mention the hesitation of the author to highlight the aforementioned decision made by the DC Circuit which is central to the discussion at hand and which surprisingly is not referenced in the text of the article but is contained in an everlasting footnote, however well read or ignored. Exposure to the course material in the OIRA Teaching Module might have resulted in an avoidance of what we perceive to be an imbalance in the article.
See Law Review Article at OIRA Law Review