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Dec
22

United States: Who Makes Agency Decisions?

Would appreciate CRE’s views on this author’s article http://bit.ly/vduec5

1 comment

  1. CRE says:

    The Secretary’s action in the FDA issue discussed in the article was completely in keeping with her authority as Secretary over the FDA. Although the situation is nominally different than in the case of the President’s decision with regard to EPA’s ozone NAAQS since that decision was made by the President, the difference is not that great. In both cases the President was exercising his lawful regulatory authority, either directly or through delegation to the Secretary.

    As now-Justice Kagan explained when discussing Chevron deference in a widely quoted law review article, “The assignment of policymaking functions, on this understanding, appropriately tracks political accountability; and political accountability, within the gaps left by Congress, attaches to and resides in choice by the President.” 114 Harv. L. Rev. 2245 (2001)

    For a fuller understanding of the President’s regulatory authority, please see, “OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding,” 63 Admin. L. Rev. (Special Edition) 37 (2011), available at http://www.thecre.com/pdf/20111211_ALR_Tozzi_Final.pdf.

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