Letter from Jim Tozzi
Center for Regulatory Effectiveness
There is an interesting article in the Harvard Law Review written by Rachel Barkow titled the THE ASCENT OF THE ADMINISTRATIVE STATE AND THE DEMISE OF MERCY. [121 Harv. L. Rev. 1332 (2008)]
In the introduction to the article, Professor Barkow states:
The birth of administrative agencies posed a dilemma for traditional constitutional and legal analysis. These agencies challenge the nation’s commitment to separation of powers by combining executive, legislative, and judicial power under one roof. Moreover, the scope of agencies’ authority is vast; their decisions have profound consequences for the nation’s economy and for individual rights and liberties. The puzzle for the law has been how to keep this potential Leviathan in check. If the officials at these agencies could exercise their authority without oversight, citizens would become subjects to unelected bureaucrats and democracy would be compromised.
This dilemma is familiar to anyone with a basic understanding of administrative law, as the overriding purpose behind almost every doctrine in administrative law is to control the exercise of agency discretion. Indeed, that is why most legal scholars writing in administrative law are preoccupied with the central question of whether agencies are accountable for their exercises of discretion and are therefore legitimate.
We believe the aforementioned statement is the reason that eight consecutive Presidents have initiated and strengthened centralized regulatory review by OMB–the authority currently exercised by OIRA in “regulating the regulators” through the Five Governor’s of the Regulatory State.
