Look at any regulatory agency and in most, if not many of the instances, the decision process is dominated by individuals with a law degree. Without a doubt law is an important ingredient of the regulatory process but it should determine the outer boundaries of the debate not the end result.
Cass Sunstein, a former OIRA Administrator in a recent article, concludes:
“Here is a simple way to test whether political convictions matter in legal disputes over regulations. Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president? If you know the answers to these two questions, it turns out that you know something important about the likely outcome. Here are three facts:”
What can we draw from the above interpretation as it applies to the selection of the next OIRA Administrator? One inference is that there is no need for the next OIRA Administrator to have a legal degree. Of course, the most important attribute is that the new Administrator comes without a lot biased baggage .
If OIRA ever positions itself as the Supreme Court of the Executive Branch it will be shunting the numerous forces that lead to its creation.
Out of the ten former OIRA Administrators , six were attorneys. In selecting the next OIRA Administrator it might be beneficial for OIRA to return to its roots.
More specifically in the fifteen years preceding OIRA’ establishment during which OMB was undertaking a considered series of sequential steps leading to the establishment of centralized regulatory review, there was only a single instance in which an attorney was in a decision-making position.
Editor’s Note: The author of this article served in OMB for a number of years and is not an attorney.
