OIRA and Presidential Regulatory Review: A View from Inside the Administrative State

Donald R. Arbuckle, University of Texas at Dallas

Abstract

Scholarly interest and political controversy have surrounded the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) since its creation on April 1, 1981. OIRA’s role as guardian of presidential regulatory review has stimulated interest from Congress, the Courts, interest groups, the media, and, of course, scholars of the Executive Branch and presidency. In a 2006 study, published in the Michigan Law Review, Professors Bressman and Vandenbergh of Vanderbilt University Law School, took an in-depth look at regulatory review from the agency point of view. They concluded that the practice of OIRA regulatory review does not comport in several important ways with presidential control theory, and that scholars have underestimated the extent of White House involvement. They recommended increased transparency within the White House regarding regulatory review. In May 2007, Michigan Law Review published a response by Professor Sally Katzen, a Faculty Fellow at the University of Michigan Law School; a former OIRA Administrator during the Clinton Administration; and an unabashed proponent of OIRA regulatory review. Her critique was accompanied by a response from Bressman and Vandenbergh. In this paper, I discuss presidential control and the regulatory review process from the perspective of an OIRA career official who served across four presidential administrations. I conclude that, while Bressman and Vandenbergh’s recommendations follow a logical path from their survey data, this data is incomplete, sometimes misleading or inaccurate, and limited in its perspective. Increased White House transparency regarding OIRA regulatory review is unwarranted, and, in any case, infeasible and highly unlikely to be instituted.