Public Participation

Editor’s Note: In response to an earlier post which was reprinted on Notice and Comment we received a reoccurring question: Had OIRA been highlighted in the referenced book, what are the implications of doing so?

Since its establishment nearly four decades ago, the foundation for OIRA, the office located in the White House Office of Management and Budget responsible for the centralized regulatory review of regulations, has been studied primarily through the lens of judicially oriented administrative law. The concepts which underlie the positions stated in a recent book written by Professor Mashaw could bring an entirely different perspective to the origins and credibility of centralized regulatory review.

Professor Parrillo in Administrative Law from the Inside Out, Essays on Themes in the Work of Jerry Mashaw eloquently states the premise for the question posed in the title to this post, more specifically he states:

The academic field’s focus on statutes and lawsuits is consistent with a broader sentiment in the nation’s political culture that, in order to  subject our government to the rule of law, we cannot trust the agencies themselves and must rely instead on officials external to the bureaucracy –that  is, elected lawmakers and life-tenured  judges. Thus “administrative law” has  been largely synonymous with external constraints—statutory and especially  judicial—on agency action.

To Mashaw, this is a mistake. We are not wrong in our  aspiration to subject government to law. But we are wrong to think that exacting statutory commands and judicial review are the means to fulfill that aspiration. Instead we should look to the agencies themselves.

Shortly after the publication of the aforementioned book, Profesor Mashaw published a book titled: Reasoned Administration and Democratic Legitimacy, How Administrative Law Supports Democratic Government. Chapter 4 has a section titled “The Role of Outside Monitors” and in the opinion of this author contains one of the most lucid historical accounts on record regarding potential Presidential involvement in rulemaking in a section titled Presidential Control?

Professor Mashaw states in part:

Oddly enough, the President’s power to contribute to reasoned administration through independent action remains constitutionally controversial. I say “oddly enough” because the President is the only institutional actor clearly given an oversight role in the text of the Constitution. Not only does the Constitution charge the president with seeing that the laws are “faithfully executed”; it specifically empowers the President to appoint the head of all government departments and to demand reports in writing from those department heads.

Professor Mashaw then traces the origin of the tension between the Congress and President regarding the control of  federal agencies. His discussion goes back as far as the” Decision of 1789” dealing with Presidential removal of appointed officers of the government moving to the “Bank War” of the 1830s to the Tenure of Office Act of the Andrew Johnson Administration to Humphrey’s Executor. His analysis brings into play everything from the Data Quality Act to regulatory impact analyses to OMB review of regulations to a regulatory budget. In doing so he states:

Lying just beneath the  surface of this controversy over appointments and removals is the critical question: what authority does the President have to influence administrative policy by requiring that administrators take account of considerations other than criteria for action specified in the agencies governing legislation?…

Presidents had long had substantial control over agency budgetary requests through the Bureau of the Budget, now the OMB. But administrative agencies had no “regulatory budget” constraining the costs that they might impose on the economy in the name of, for instance, environmental, worker  or consumer protection. In the midst of economic troubles that generated terms like “stagflation: and the “misery index” it seemed sensible to construct some means to assure that agencies were paying attention to their regulatory action’ economic effects.

In the parlance of Professor Mashaw, both the Congress and the President are external to agencies and agencies generate their own  “internal” law to address issues unique to their mandates.  Our hypothesis is that “internal” law not only varies among agencies but even within an agency; for example the “internal” law of the FDA might well differ substantially from another agency within HHS such as the Center for Tobacco Products. The hypothesis includes the assumption that the CEO of the Executive Branch, the President, would establish procedures to seek uniformity  in “internal” laws that address comparable issues both among and within agencies, thus the emergence of OIRA as a result of the presence of “internal” laws.

Tracing the lineage of OIRA to the concepts advocated by Professor Mashaw is of particular importance because when there is a change in Administration’s OIRA is always under critical review by the incoming team. Anchoring OIRA’s existence to the work of Professor Mashaw is a definite plus and adds to its two existing anchors: (1) Executive Order 12291 which is iconic in the words of Professor Mashaw and (2) its progeny and bi-partisan successor Executive Order 12866.

Consequently we conclude that it is time well spent for the academy to analyze Professor Mashaw’s writings and provide a response to the question: Is OIRA a Manifestation of the Principles Enunciated by Professor Mashaw?