The concept—but not the execution—of centralized regulatory review is the product of an academician; why nearly five decades after its birth are a number of legal academicians still flailing over its execution?
One line of thought is that many—far from all—legal academicians believe centralized regulatory review, which allows for the review of an agency regulation by officials in the Office of Information and Regulatory Affairs (OIRA)—Executive Office of the President, is a dangerous usurpation of the authority vested in federal agencies which are creatures of the Congress. Another line of thought could be traced to a statement made by a recognized attorney who practiced before federal agencies and who once remarked to a meeting of leading law professors: “Either you are not teaching administrative law or I am not practicing it because nothing you teach resembles what I practice.”
The salient point is that many professors of administrative law believe that once a federal agency makes a decision the only recourse is the courts and possibly the Congress. Maintenance of the status quo—the absence of an intermediate and binding Executive Branch process for dispute resolution such as centralized regulatory review—might also be considered an act of self preservation.
The term “self preservation” is used because the continuance of existing law school curricula which focus on the judicial review of rules requires no risk taking on the part of the faculty because they would not have to learn and develop new course material nor understand process information which heretofore has not been committed to writing in a comprehensive manner.
Failure to implement curricula reform will result in considerable risk taking on the part of students. The resultant career risk occurs because students will be ill equipped to work in or with federal regulatory agencies because the students will be totally ignorant of key components of the federal administrative processes which have been sanctioned by federal statutes and eight consecutive Administrations.
A proponent of the status quo, and therefore an opponent of centralized regulatory review, stated the self-preservation issue most succinctly: “By passing the Administrative Procedure Act (APA), Congress attempted to cabin these “other means” through lawyer-dominated procedures.” To a number of disciplines, including political scientists, economists, and students of public policy, lawyer-dominated procedures are part of the problem.
One can only wonder what an Administrative Law course would look like if it really addressed the administrative processes actually in practice in federal agencies; a central component of which is centralized regulatory review both in the Executive Office of the President (Office of Information and Regulatory Affairs) and at the Secretarial level in cabinet level agencies as well as the “good government” statutes which regulate the regulators. As a recognized law professor has stated: “if US law schools had a proper curriculum that reflected modern law practice, students would take as many courses about administrative law as about litigation. “
The challenge, however, is the preparation and presentation of the course material; an abundance of source material is available on the website theomb.us and OIRA Watch. The mastery of a litany of judicial decisions and the countless law review articles on the significance of their footnotes will not do the trick. The creation of an OIRA Module is a demanding task which one cannot expect each and every professor to compile.
Any one of a number of central organizations could assist in this responsibility; candidates include the Network of Schools of Public Policy, Affairs, and Administration, the Association for Public Policy Analysis and Management, the American Political Science Association and the Association of American Law Schools. To this end CRE is providing a forum for all interested parties to participate.
A related question to be addressed is whether law students are taught only those administrative processes that are in sync with the law professors’ views—however irrelevant those processes might be to the real world? Professors teach thousands of students, in one case as many as 10,000 students. Professors are authority figures; it is understandable that students will follow the lead of their professors when criticizing OIRA Presidential control of the bureaucracy.
A vibrant and ever sensitive centralized regulatory review program is dependent upon our best minds working to improve it—not to abolish it.
To read two representative but competing views on the merits of centralized regulatory review, please review this article and this one.
The essence of those opposing OIRA’s existence is that if a President moves administratively to regulate the regulators then such an action is deemed to be, if not illegal, most certainly immoral. Unchecked, some law professors could produce prejudicial law students at a rate and impact that probably cannot be offset by the benefits of Congressional regulatory reform legislation.
As a result of our instant communications network the public and stakeholders are no longer going to be beholden to antiquated views which deny them any opportunity for relief—short of judicial review—however grounded in existing academic curricula.
The bottom line is that administrative law as presently taught may be on its last legs. As one leading administrative law scholar has stated: “The court’s decision in Sierra Club v. Costle creates a large fissure within administrative law doctrine itself. Agencies must, in order to survive judicial review, apply statutory criteria to the evidence before them, but their decisions need not be motivated by those criteria and that evidence. I believe this is a tension that must be resolved, not accommodated, and that either classical administrative law or Sierra Club v. Costle has to go.”
Consequently proponents of long term regulatory reform should seize the opportunity to improve the course material presented to future attorneys and judges through the development of an OIRA Teaching Module for use by law schools which teach administrative law.
A complementary approach would be to create a module for use in schools of Public Administration which are capable of breaking the monopoly the legal profession has in addressing regulatory issues before federal agencies—the academic version of Uber.
View the OIRA Teaching Module
A Poster Child for an OIRA Teaching Module.
References
Presidential Accountability in Rulemaking
Status
Work has begun on the development of the OIRA Module; see the Federal Administrative Process Forum. Contributors may post relevant course material thereon.
In collaboration with the Federal Focus Administrative Process Institute.
For many years I have believed that administrative law is too important to be taught only by lawyers. It is not a field that fits comfortably with classic legal reasoning. It cries out for the insights of other academic and professional disciplines, namely public management, public administration and public policy. Perhaps it is time to find a way to teach administrative law drawing on these other fields. I realize that there are many constraints that keep this from happening. But we should try.
Professor Radin has just published an article on OIRA at:
http://www.thecre.com/oira_forum/?p=5323
To view the CRE Library on OIRA articles see:
http://thecre.com/ombpapers/Obama_review.html
Professor Radin:
You hit the nail on the head! With all your contacts in the communities you mentioned above, hopefully you can take the necessary steps to have the political science community assist us in implementing this initiative.
In the past several years we have not been able to make an In road to the public administration community–not that we have not tried.
We are encouraged by your timely response.
NOTE TO AUTHORS Those of you who wish to post relevant research please go to this page http://www.thecre.com/forum2/ You might then post a comment on the home page, this page, referring our readers to it.
It is in a way flattering to have Jim Tozzi choose a piece I have written as an exemplar of a certain view about OIRA, but he has rather overstated what that view is. I have long welcomed OIRA review as a legitimate exercise of presidential responsibility, and I enthusiastically agree that it warrants study and accurate representation in classes about political science and law. Where disagreements arise, it is over just what that responsibility is — is it oversight, or is it decision? — and over the conditions that could make accurate assessment possible.
When Congress enacts a statute that confers on an administrator the authority and responsibility to make certain decisions, that (by me but it’s a disputed point) is a part of the law the President is obliged to see faithfully executed. He has every right to consult with the agency and to recommend to the agency — the Constitution permits him to require written opinions from agency heads about what it describes as THEIR duties — but the decision, by law, is theirs. Nothing in Sierra Club v. Costle, which we both appreciate, is inconsistent with that.
So now the question becomes, if we want to appreciate these interactions, what can we find out about the OIRA-agency interactions. And the answer is, very little. Its promises of transparency are too often observed in the breach. The interesting article that was a recent post here, Influence and the Administrative Process: Lobbying the U.S. President’s Office of Management and Budget, is suggestive. Another, that I have recently read in draft, seems to suggest that the influence is all about facts, not politics. But then in each of the last two administrations it has appeared pretty clearly that the process has been used for political advantage — which is a different matter than securing better work or regulation.
It would be wonderful if the process could be brought more into the open — even as far as its words suggest it will be — but somehow I doubt this will happen. And until it does, it will be hard for the modules Jim hopes for to produce an accurate understanding of how this important process is working.
Now I’ve had a chance quickly to read Prof. Radin’s piece as well, and here I agree with Jim … it well illustrates the problems, including the opacity of the political side. She understands my views pretty well.
Several years ago I had decided to make a statement at an ACUS meeting regarding a statement made by Professor Strauss. Prior to doing so I thought it best that I do some research and I arrived with the following—number of publications in recognized legal journals, Strauss 283; Tozzi 1. I learn with each statement made by Peter.