The Case for Abolishing Centralized White House Regulatory Review
A series of catastrophic regulatory failures have focused attention on theweakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and ameliorate this unacceptable state of affairs, but his administration has largely ignored it, instead accepting Republican claims that over-regulation is the overriding problem du jour.
One central reason for the systemic failure of effective health and safety regulation is the fact that many regulatory matters enter and exit the White House through the Office of Management and Budget’s (OMB) little-known but extraordinarily powerful Office of Information and Regulatory Affairs (OIRA). Centralized White House regulatory review began in the Nixon administration and OIRA was created in 1980. Over four decades, the process has evolved into a relentless gauntlet for public health, worker safety, and environmental protection initiatives, subjecting the agencies’ efforts to implement their demanding statutory mandates to withering rule-by-rule review. Analogous to examining the roots of individual trees without realizing that they are part of a dying forest, this myopia has obscured the causes and effects of regulatory failure for five presidents from both parties.
1 Michigan Journal of Environmental and Administrative Law 209 (2012).