The activities of OIRA are under constant review by a number of institutions most notably and most recently the Administrative Conference of the United States.
Over twenty years ago, Professor Robert Percival of the University of Maryland, the author of an internationally recognized casebook on environmental law, prepared a comparable analysis.
It would be interesting to compare the results of the Pericival analysis with other analyses of OIRA operations conducted in previous years to assess the changes in centralized regulatory review that occured over the last four decades.
However, one thing has definitely changed; a number of writers of history refuse to recognize the fact that the Nixon Administration began centralized regulatory review. Professor Percival did not make that mistake; he devoted nearly ten pages to the precedents set by the Nixon Administration.
Nonetheless authors in the intervening years continue to dismiss the major changes brought about by the Nixon Administration.
Consider a recent article by a former OIRA employee which is representative of the vast number of articles written on OIRA which states:
“The current structure of presidential review has, for the most part, persisted for almost twenty years, since 1993 when President Clinton issued Executive Order 12,866. While these governing procedures are the focus of this Article, some brief historical context may be useful. Presidential oversight efforts date back centuries, though President Reagan was arguably the first to exert more supervisory control “self-consciously and openly” when he issued Executive Order 12,291 in 1981.
The aforementioned statement is even more surprising in that the author quotes liberally from material printed in the Administrative Law Review Special Edition devoted entirely to OIRA in which one article therein described at length the contribution of the Nixon Administration.
Recognizing that we Americans have a nanosecond interest in history and the fact that some authors refuse to give credit to the Nixon Administration, it is nonetheless the responsibility of recognized experts in the field to perform reviews without bias. Unfortunately scholars of centralized regulatory review will have to perform such reviews without the assistance of the current OIRA staff or most of its alumnae who set the clock around their tenure and only their tenure.
The need to recognize the accomplishments of the Nixon Administration is more than setting the record straight, although that is important. Of equal importance is that the Nixon Quality of Life Review program not only contained the central elements of the current centralized review program, including the OMB review of proposed and final regulations, the requirement for benefit/cost analysis, the delineation of alternatives and establishing a timetable for regulatory actions but some of its governance procedures were completely different from those currently in effect.
If scholars never even recognize the existence of the Nixon Quality of Life Review program how can one meaningfully assess whether centralized regulatory review has improved over the years when the formative procedures that existed for six years and became embedded in the governing fabric are ignored?
It should be noted that a number of the more important institutional guardians of the activities within the regulatory state are on top of this matter, including:
Administrative Conference of the US
In addition there are a few administrative law scholars who understand and appreciate the importance of making accurate statements of history.
