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- Title
Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation.
- Authors
Shapiro, Sidney A.; Murphy, Richard
- Abstract
Congress has delegated immense legislative (i.e., "rulemaking") power to federal agencies to control how Americans live and work. Over the last several decades, presidents of both parties have sought to control this power by entrenching a system of centralized White House review of agency rules conducted by the Office of Information and Regulatory Affairs ("OIRA"), which has been described as the "single most important office most people have never heard of." Centralized review through OIRA can serve important and valuable functions. It also, however, provides a vehicle for increasing the role of political considerations in the rulemaking process as well as the vast power of special interests. These problems are partially a function of the opacity of centralized review, which commonly delays, kills, or alters mies without public explanation. This Article explores two novel means by which courts and litigants, without waiting for congressional or executive action, might deploy administrative law's traditional tool for limiting the influence of politics -- agencies' duty of reasoned explanation -- to shed needed sunlight on centralized review of rulemaking. More specifically, interested persons should be able to use petitions for rulemaking to require agencies to give prompt, technocratic, public-regarding explanations for delays caused by centralized review. Also, agencies should be required to give reasoned explanations for policy changes they make due to centralized review. Adopting these proposals would add to the (often questioned) legitimacy of centralized review both by making its effects more transparent and by discouraging political changes that cannot be supported by persuasive policy rationales.
- Subjects
UNITED States; ADMINISTRATIVE procedure; LEGISLATIVE power; GOVERNMENT agencies; UNITED States. Office of Management &; Budget. Office of Information &; Regulatory Affairs; ADMINISTRATIVE law; PRESIDENTS of the United States; POLITICAL change; GOVERNMENT agency rules &; practices
- Publication
U.C. Davis Law Review, 2015, Vol 48, Issue 4, p1457
- ISSN
0197-4564
- Publication type
Article