Reigning-in the Independent Agencies

 A Call for a Radical New Communications Policy (Schiel & Denver Publishing)

Editor’s Note:  The time has  arrived  for a serious look at exerting Executive Branch control over the independent regulatory agencies. There are a number of  plans  for doing so,  some statutory based and some based upon the existing  authority of the President.  In order to build a constructive record we recommend that interested parties  submit comments in the form below or in the Discussion Forum to the right of this post.


The Administrative Law Review, published by theABA’s Section of Administrative Law and Regulatory Practice, has just published an issue commemorating the thirtieth anniversary of OIRA. The volume contains a number of excellent articles prepared by participants at a conference on OIRA sponsored by The George Washington University Regulatory Studies Center.


Many of the articles, written by OIRA Administrators and Deputy Administrators, provide useful insights concerning the way OIRA has operated over the years – showing patterns of both continuity and change. For an especially rich history of the formative years of OIRA, tracing its roots back much earlier than commonly assumed, I commend Jim Tozzi’s  article, entitled “OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding.”


Of special interest to me are the articles, and there are a number of them, in which the former OIRA officials all make the same point: The so-called independent regulatory agencies should be subject to the same OIRA review process as the executive branch agencies. In other words, the independent agencies should be subject to more presidential control than they are presently.


In my new book, A Call for a Radical New Communications Policy: Proposals for Free Market Reform, the Federal Communications Commission’s status as an independent agency plays a significant role. In one chapter I recommend that Congress consider transferring the policymaking functions of the FCC, usually carried out through rulemaking proceedings, to the executive branch, while retaining the current multimember commission format for deciding adjudicatory matters. Restructuring along these lines would give the President more control over policymaking functions, while continuing to insulate adjudicatory decisions from political control.


And in two other chapters I explain why, in the absence of a restructuring of the FCC along the lines I recommend, the agency should receive less Chevron deference upon judicial review than do executive agencies .I argue that the principal rationale of Chevron dictates this result. (By the way, so has Elena Kagan, when she was dean ofHarvardLawSchool.)


I don’t won’t to spoil your fun by saying more here. But you can buy my new book, A Call for a Radical New Communications Policy: Proposals for Free Market Reform,from Amazon here, and from Barnes & Noble here. And then you can decide for yourself.


Randolph May
The Free State Foundation

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