Presidential Controls

In 2001, well before she became a Supreme Court Justice, Elena Kagan captured everyone's attention with the following paragraph:

The history of the American administrative state is the history of competition among different entities for control of its policies. All three branches of government - the President, Congress, and Judiciary - have participated in this competition; so too have the external constituencies and internal staff of the agencies. Because of the stakes of the contest and the strength of the claims and weapons possessed by the contestants, no single entity has emerged finally triumphant, or is ever likely to do so. But at different times, one or another has come to the fore and asserted at least a comparative primacy in setting the direction and influencing the outcome of administrative process. In this time, that institution is the Presidency. We live today in an era of presidential administration.

Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2246, 2246 (2001). Kagan claimed that modern Presidents, from President Reagan onward, have assumed unprecedented control over the administrative state. Not only have modern Presidents used their position to "in large measure set the administrative agenda for key agencies" by helping to direct agencies, id. at 2248 (note that this practice is itself constitutionally controversial, see Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696 (2007)(arguing that when Congress delegates discretion to heads of agencies, the President has no authority to direct particular outcomes)), but they have all endorsed and augmented institutional machinery for the centralized oversight of agency action, id. at 2247-48. This machinery is located in the Office of Information and Regulatory Affairs (OIRA), which is a subagency of the White House Office of Management and Budget. Under a series of Executive Orders, each President since Regan has consolidated authority within OIRA to review and, if necessary, "return" proposed agency actions, effectively nixing them.

This subsection provides an overview of this process, starting with President Clinton's Executive Order 12,866, which is still in effect and provides the baseline set of procedures that OIRA implements to effectuate presidential control of the administrative state. The subsection then focuses on perhaps the key oversight mechanism that OIRA deploys: the requirement that agencies provide regulatory impact analyses (RIAs) that demonstrate the need for the action. Often, these analyses contain detailed cost-benefit analyses, and OIRA has provided detailed guidance on how to conduct these analyses. Knowing something about this process is essential for any regulatory lawyer.

Although critics have, since the very beginning of this trend towards presidential administration, argued that it is often deployed in a myopically anti-regulatory manner, see Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State , 106 Colum. L. Rev. 1260 (2006), Kagan argued in Presidential Administration that Presidents of decidedly different ideologies have been able to put their stamp on presidential control to achieve whatever agenda they happen to have--de-regulatory, pro-regulatory, or something else. See Kagan, supra, at 2248-49.

Kagan's view may be vindicated by two recent developments in this space that have the potential to fundamentally change how presidential administration through OIRA works. President Biden's Executive Order 14,094 seeks to "modernize" the regulatory review process, and revisions to OMB Circular A-4 (the George W. Bush-era document that provides guidance to agencies on how to conduct rigorous cost-benefit analyses that will pass muster with OIRA) seek to rescue cost-benefit analysis from claims that it is inherently anti-regulatory. These changes represent another example of modern Presidents putting their own idiosyncratic stamp on presidential administration.