The lost world of administrative law

Texas Law Review

Volumn 92, Issue 5, 2014, Pages 1137-1189

  Farber, Daniel A ^a   O'Connell, Anne Joseph ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84898987020     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (249)

1. U.S. Gov't Accountability Office, GAO-11-289, Federal Food Safety Oversight: Food Safety Working Group Is a Positive First Step but Governmentwide Planning Is Needed to Address Fragmentation 1 (2011) (noting the large number of agencies that administer food-related laws).
2. FDA Food Safety Modernization Act, Pub. L. No. 111-353, § 419, 124 Stat. 3885, 3899- 900 (2011) (codified at 21 U.S.C. § 350h (2012)).
3. Anne Joseph O'Connell, Agency Rulemaking and Political Transitions, 105 Nw. U. L. Rev. 471+476 (2011) (elaborating on the textbook description of the agency rulemaking process).
4. Press Release, U.S. Food & Drug Admin., FDA Proposes New Food Safety Standards for Foodborne Illness Prevention and Produce Safety (Jan. 4, 2013), available at http://www.fda.gov/newsevents/newsroom/pressannouncements/ucm334156.htm.
5. Helena Bottemiller, NYT to White House: Move Forward on Food Safety Rules, Food Safety News (Aug. 13, 2012), http://www.foodsafetynews.com/2012/08/nyt-calls-on-omb-to-release-food-safety-rules/
6. See Exec. Order No. 12,866 § 6(b)(2), 3 C.F.R. 638, 646-47 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 802, 805 (2012) (limiting OIRA's review period to ninety days with the possibility of a thirty-day extension).
7. Nancy Watzman, Key Elements of Food Safety Law Stuck at White House Regulatory Agency, Sunlight Found. (May 7, 2013, 11:20 AM), http://sunlightfoundation.com/blog/2013/05/07/food-safety-law/ (noting how OIRA held on to the two draft rules for a year and providing a spreadsheet that lists meetings at OIRA and their attendees).
8. Helena Bottemiller, Documents Show OMB Weakened FDA's Food Safety Rules, Food Safety News (Mar. 25, 2013), http://www.foodsafetynews.com/2013/03/documents-show-omb-weakened-fdas-food-safety-rules/ (using released documents to show how OMB "significantly weakened the U.S. Food and Drug Administration's draft food safety rules").
9. Press Release, U.S. Food & Drug Admin., supra note 4. In August, the FDA extended the comment period for a second time. Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food; Extension of Comment Periods, 78 Fed. Reg. 48,636, 48,636-37 (Aug. 9, 2013). Strikingly, for the first extension, in February, comments were to be sent to OMB, not the FDA. See Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food; Extension of Comment Period for Information Collection Provisions, 78 Fed. Reg. 11,661, 11,661 (Feb. 19, 2013) (requesting that interested persons submit electronic or written comments directly to OMB).
10. Ctr. for Food Safety v. Hamburg, C 12-4529 PJH, at 10 (N.D. Cal. Apr. 22, 2013). The Court approved new deadlines in June. Ctr. for Food Safety v. Hamburg, C 12-4529 PJH, at 3 (N.D. Cal. June 21, 2013) (ordering the FDA to publish all proposed regulations under the FSMA by November 30, 2013, and to publish all final regulations in the Federal Register no later than June 30, 2015); see also Michael Patoka, Three Food Safety Rules Grow Moldy at OIRA as Import-Related Outbreaks Continue, Food Safety News (June 26, 2013), http://www.foodsafetynews.com/2013/06/three-food-safety-rules-grow-moldy-at-oira-as-import-related-outbreaks-continue/ (acknowledging the import of the court's order but noting that the dates the court set were deferential to the FDA's projected timeline).
11. The FDA appealed the new deadlines to the Ninth Circuit. The FDA then sought an emergency stay due to the government shutdown. Greg Ryan, Shutdown Affected Food Safety Deadline, FDA Tells 9th Circ., Law 360 (Oct. 21, 2013, 5:43 PM), http://www.law360.com/articles/481762. The parties then settled, agreeing to a staggered schedule, with dates far later than the original statutory deadlines.
12. Sindhu Sundar, FDA Agrees to FSMA Rollout Deadlines in Settlement, Law360 (Feb. 20, 2014, 5:49 PM), http://www.law360.com/articles/511920/fda-agrees-to-fsma-rollout-deadlines-in-settlement (describing the settlement agreement that establishes staggered final rule deadlines, beginning in August 2015 and ending in May 2016, for finishing the implementation of the FSMA).
13. We should note that most, though not all, of our discussion focuses on executive agencies that are directly responsive to the President, such as the EPA, rather than independent regulatory commissions and boards that are more independent from the President, such as the SEC. This emphasis also reflects changes since the post-New Deal era of administrative law and the growing importance of Executive Branch agencies like the EPA and OSHA at the expense of independent agencies such as the SEC and NLRB.
14. We are not advancing here a causal narrative about how the "law in action" became so distanced from the "law on the books." We make some key assumptions that we do not defend here. First, we believe the goals of transparency, rule of law, and reasoned implementation of statutory mandates are desirable ones, at least to some substantial degree. We do not pause here to elaborate the meaning of these goals or discuss potential conflicts. For a recent discussion of values underlying administrative legitimacy, see Emily Hammond and David L. Markell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. 313+320-330 (2013). Second, we adopt an institutionalist perspective-in other words, that outcomes are not solely a function of the constellation of political forces but also depend on institutions and process.
15. Edward Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 Cornell L. Rev. 95, (2003) (arguing that the APA "fails to address the administrative character of the modern state" and that "a new, administratively oriented APA be drafted" that is "founded on the principle of instrumental rationality")
16. William H. Simon, The Organizational Premises of Administrative Law, Law & Contemp. Probs. (forthcoming 2014) (manuscript at 1), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2332079 (claiming that "[a]dmin-istrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras" and calling for new doctrine that "is more attuned to performance-based organization"). While there is much to admire in the Rubin and Simon pieces, they are rooted in making the bureaucracy function better, largely as a matter of social welfare. We agree that this is an important goal, but we also give weight to the traditional administrative law values such as transparency and fidelity to law, even though these goals may sometimes involve tradeoffs with agency efficiency and ability to maximize social welfare. For instance, Congress may have had other goals than welfare maximization, or the sole goal of efficiency may involve excessive sacrifices of fairness to individuals.
17. The analogy here is to what cognitive scientists call framers or schemas. See Howard Margolis, Patterns, Thinking, and Cognition: A Theory of Judgment 37 (1987) (identifying "frames" and "schemas" as terms psychologists use to emphasize how individual parts are perceived "only in the context of some (often implicit or imputed rather than overtly present) whole").
18. For discussion of adjudication-related concerns during the long and conflicted process that led to the APA, see Martin Shapiro, APA: Past, Present, Future, 72 Va. L. Rev. 447+452-54 (1986)
19. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557+1575-77 (1996). As Shapiro observes, "the new health, welfare, safety, and environmental statutes of the sixties and seventies demanded more rulemaking."
20. Shapiro, supra, at 456.
21. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939+940 (2011).
22. Walter Gellhorn & Clark Byse, Administrative Law: Cases and Comments 731-752 (6th ed. 1974).
23. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
24. Gellhorn & Byse, supra note 20, at 478-485.
25. Kenneth Culp Davis, Cases on Administrative Law 327-328+570 (1951) (on notice-and-comment rulemaking); id. at 321-59 (on formal rulemaking).
26. Shapiro, supra note 17, at 462-464 (describing how courts have changed agency rulemaking from quasi-legislative to quasi-judicial with a procedural "paper trial" that reduces the scope of agencies' discretion).
27. Although it is difficult to document that something is an unspoken assumption-the point, after all, is that the assumption often is not mentioned explicitly-courts do sometimes explicitly articulate the assumption. See, e.g., Lyngv. Payne, 476 U.S. 926, 937 (1986) ("[A]n agency's power is no greater than that delegated to it by Congress."); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213 (1976) ("The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law."); FAG Italia S.p.A. v. United States, 291 F.3d 806, 816 (Fed. Cir. 2002) ("It is indeed well established that the absence of a statutory prohibition cannot be the source of agency authority." (citing So. Cal. Edison Co. v. FERC, 195 F.3d 17 (D.C. Cir. 1999))).
28. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952).
29. Shapiro, supra note 17, at 464 ("Under the most simplistic view of the Constitution, Congress makes laws and the executive branch carries them out.").
30. Steel Seizure, 343 U.S. at 585.
31. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984) (stating that courts must defer to an agency's reasonable interpretation of a statute in cases where Congress has not dictated a particular result and where Congress has delegated the authority to interpret the statute to the agency).
32. City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1869 (2013).
33. As the Court explained: The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Humphrey's Ex'r v. United States, 295 U.S. 602, 628 (1935).
34. The cases discussed in this subpart illustrate the operation of this principle. To be fair, the Court has struck down only two laws that were interpreted as giving the agency unrestrained discretion on how to address a particular subject matter. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42 (1935) (holding that a section of the National Industrial Recovery Act granted unfettered discretion to the President and was thus an unconstitutional delegation of legislative power)
35. Pan. Ref. Co. v. Ryan, 293 U.S. 388, 430 (1935) (same). Instead, Congress must provide an "intelligible principle" to guide agency discretion. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
36. Shapiro, supra note 17, at 468.
37. 549 U.S. 497 (2007).
38. Clean Air Act, 42 U.S.C. § 7521(a)(1) (2006).
39. 549 U.S. at 529-34.
40. 531 U.S. 457 (2001).
41. Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
42. 401 U.S. 402 (1971).
43. Overton Park, 401 U.S. at 420.
44. Or the Executive Branch plus independent regulatory commissions and boards, if you prefer.
45. Administrative Procedure Act, 5 U.S.C. § 551(1) (2012).
46. Staff of S. Comm. on the Judiciary, 79th Cong., Senate Judiciary Committee Print (Comm. Print 1945), reprinted in APA Legislative History, supra note 18, at 11, 13.
47. 5 U.S.C. § 551(4) (emphasis added).
48. Staff of S. Comm. on the Judiciary, 79th Cong., Senate Judiciary Committee Print (Comm. Print 1945), reprinted in APA Legislative History, supra note 18, at 14.
49. Similarly, the Attorney General's letter regarding the legislation remarked that the "basic scheme underlying this legislation is to classify all administrative proceedings into these two categories" of adjudication and rulemaking. Letter from Tom C. Clark, U.S. Att'y Gen., to Pat McCarran, Chairman, Senate Judiciary Comm., app. (Oct. 19, 1945), in S. Rep. No. 79-752, at app. B. at 37, 39 (1945), reprinted in APA Legislative History, supra note 18, at 223+226.
50. 5 U.S.C. § 558(b).
51. S. Rep. No. 79-752, at 25 (1945), reprinted in APA Legislative History, supra note 18, at 211.
52. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844 (1984) (emphasis added).
53. Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).
54. Chevron, 467 U.S. at 844.
55. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201+242-43 (2002) (stressing that "[i]t is only the presence of high-level agency officials that makes plausible Chevron's claimed connection between agencies and the public" and recognizing that this accountability flows through the President and the Senate)
56. Chevron, 467 U.S. at 865-66 (implying administrative authorities are accountable to the people by way of the Chief Executive).
57. Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753+762-64 (2006) (suggesting that the provision of evidence and reasoned explanation is a costly signal by agencies to courts).
58. Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48-49 (1983).
59. 318 U.S. 80 (1943).
60. Administrative Procedure Act, 5 U.S.C. § 553(c) (2012).
61. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).
62. 5 U.S.C. § 706. Subsequent legislation in the 1960s and 1970s-primarily the Freedom of Information Act and the Government in the Sunshine Act-complemented the APA's mandate of a record. These Acts were specifically designed to foster transparent decision making. See, e.g., Government in the Sunshine Act, Pub. L. No. 94-409, § 2, 90 Stat. 1241, 1241 (codified at 5 U.S.C. § 522b note) (declaring it the "policy of the United States that the public is entitled to the fullest practicable information regarding [its] decisionmaking processes").
63. The State Farm framework does not rest only on expertise values of agency action. So long as the agency makes a decision on the statutory factors, political influence can shape what that decision is within the statutory framework. See Cass R. Sunstein, Factions, Self-Interest, and the APA: Four Lessons Since 1946, 72 Va. L. Rev. 271+284 (1986) (stating that the "arbitrary and capricious" standard exists to prevent agency capture but recognizing that political influences can be accommodated without violating that standard).
64. David E. Lewis & Jennifer L. Selin, Sourcebook of United States Executive Agencies 1+10-11 (2012).
65. To survive judicial review, of course, the action must be justifiable under a directive enacted by some past Congress, even if the current Congress takes a different view of the subject.
66. Memorandum on Power Sector Carbon Pollution Standards, 2013 Daily Comp. Pres. Doc. 457 (June 25, 2013) [hereinafter Carbon Standards Memo]; see also Remarks at Georgetown University, 2013 Daily Comp. Pres. Doc. 452 (June 25, 2013) (announcing climate change directives to the EPA).
67. Memorandum on Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System, 2013 Daily Comp. Pres. Doc. 22 (Jan. 16, 2013) [hereinafter NICS Memo].
68. Memorandum on Tracing of Firearms in Connection with Criminal Investigations, 2013 Daily Comp. Pres. Doc. 23 (Jan. 16, 2013) [hereinafter Tracing Memo].
69. Memorandum on Engaging in Public Health Research on the Causes and Prevention of Gun Violence, 2013 Daily Comp. Pres. Doc. 21 (Jan. 16, 2013).
70. Jonathan Easley, Freshman Lawmaker Threatens Impeachment over Gun Rights, Briefing Room, The Hill (Jan. 14, 2013, 7:29 PM), http://thehill.com/blogs/blog-briefing-room/news/277021-gop-rep-threatens-obama-with-impeachment-over-gun-action
71. See Carbon Standards Memo, supra note 85.
72. See NICS Memo, supra note 86 (directing agencies to submit a report regarding any relevant records after the DOJ issues guidance)
73. Tracing Memo, supra note 87 ("Federal law enforcement agencies shall ensure that all firearms... are traced through ATF...." (emphasis added)).
74. Peter M. Shane, The Hysteria over the Obama Executive Orders, Huffington Post (Jan. 18, 2013, 3:25 PM), http://www.huffingtonpost.com/peter-m-shane/the-hysteria-over-obama_b_2497292.html (observing that executive orders may be issued in the President's executive capacity or pursuant to a statute, although such orders may not "impose obligations or restrictions on the public").
75. William G. Howell, Power Without Persuasion: The Politics of Direct Presidential Action (2003).
76. See Massachusetts v. EPA, 549 U.S. 497, 507 (2007) ("When Congress enacted these provisions [of the CAA], the study of climate change was in its infancy.").
77. Carbon Standards Memo, supra note 85.
78. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 (2012) (analyzing the strengths and weaknesses of assigning overlapping authority to agencies)
79. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201 (2007) (examining Gonzales v. Oregon, 546 U.S. 243 (2006), to revisit the conventional wisdom regarding agency interpretations of statutes that share jurisdiction between more than one political institution)
80. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 Calif. L. Rev. 1655 (2006) (analyzing arguments for and against the unification of federal agencies in their responsibilities related to national security).
81. Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 33 Harv. Envtl. L. Rev. 1 (2009) (examining options for addressing the problem of agencies underperforming in certain areas when faced with competing goals).
82. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265+265 (2013).
83. See supra subpart I(C).
84. See supra notes 68-69 and accompanying text.
85. Anne Joseph O'Connell, Ctr. for Am. Progress, Waiting for Leadership: President Obama's Record in Staffing Key Agency Positions and How to Improve the Appointments Process 2 (2010), available at http://www.americanprogress.org/issues/2010/04/pdf/dww_appointments.pdf
86. Anne Joseph O'Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913+919 n.23 (2009) (compiling studies that measure the tenure lengths of agency leaders).
87. See Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345 (2012).
88. See 5 U.S.C. § 3345(a)(1)-(3).
89. O'Connell, supra note 105, at 944-945.
90. Michael D. Shear, Politics and Vetting Leave Key U.S. Posts Long Unfilled, N.Y. Times, May 2, 2013, http://www.nytimes.com/2013/05/03/us/politics/top-posts-remain-vacant-throughout-obama-administration.html (describing concern among various commentators regarding acting officials who have "little authority to make decisions" and weaken accountability in their agencies).
91. Dan Eggen & Christopher Lee, Late in the Term, an Exodus of Senior Officials, Wash. Post, May 28, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/05/27/AR2008052702641.html
92. supra notes 68-69 and accompanying text.
93. Andrew Rudalevige, Managing the President's Program: Presidential Leadership and Legislative Policy Formulation 51+52 & fig.3.3, 53-61 (2002).
94. Aaron J. Saiger, Obama's "Czars" for Domestic Policy and the Law of the White House Staff, 79 Fordham L. Rev. 2577+2577-78 (2011).
95. Amy Harder, Observers Worry White House 'Czars' Have Too Much Power, Gov't Executive (Mar. 13, 2009), http://www.govexec.com/oversight/2009/03/observers-worry-white-house-czars-have-too-much-power/28755/ (reporting that both Senator Robert Byrd, a Democrat from West Virginia, and Yale law professor Bruce Ackerman had concerns that "czars" threatened the balance of powers).
96. O'Connell, supra note 105, at 930-931 (noting the use of high-level advisors as an exception to the formal nomination and appointment process).
97. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47+49-50 (2006) (stating that, in the context of EPA rulemaking, White House offices often have more influence on important issues than OIRA)
98. Jody Freeman, The Obama Administration's National Auto Policy: Lessons from the "Car Deal, 35 Harv. Envtl. L. Rev. 343+343 (2011) (stating that the author of the article served as Counselor for Energy and Climate Change in the White House and in that position contributed to the creation of the national auto policy discussed in the article)
99. Aaron J. Saiger, Obama's "Czars" for Domestic Policy and the Law of the White House Staff, 79 Fordham L. Rev. 2577+2582 (2011) (noting that "it seems clear that at least some of Obama's czars were tasked to bring about particular and significant policy change, and to do so from the White House").
100. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635+2638 (2010) (holding that the NLRB, which has a three-member quorum requirement, could not exercise its authority when the agency's board fell to two members).
101. Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127+1146-59 (2010) (presenting evidence that the White House significantly influences agency decisions without agencies or others disclosing the content of this influence).
102. See Administrative Procedure Act, 5 U.S.C. §§ 553-557 (2012).
103. United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973)
104. J. Skelly Wright, Commentary, Rulemaking and Judicial Review, 30 Admin. L. Rev. 461+462-63 (1978) (noting the shift away from formal rulemaking precipitated by Florida East Coast Railway).
105. Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv. L. Rev. 529+553-54 (2006).
106. 5 U.S.C. § 553(b)(B).
107. See Adoption of Recommendations Notice, 60 Fed. Reg. 43,108, 43,110-13 (Aug. 18, 1995) (explaining these two types of rulemaking and how each has been partially justified using the good-cause exception); Lars Noah, Doubts About Direct Final Rulemaking, 51 Admin. L. Rev. 401, 401-02 (1999) (arguing that direct final rulemaking does not comply with the APA despite its recent use and the good-cause exception).
108. Ronald M. Levin, Direct Final Rulemaking, 64 Geo. Wash. L. Rev. 1, 1 (1995).
109. See Recommendation 95-4, supra note 123, at 43,111
110. Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703+704 (1999).
111. Asimow, supra note 130, at 736-737 (finding that many interim final rules remained unfinalized three years after their adoption).
112. Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889+929-36 (2008).
113. U.S. Gov't Accountability Office, GAO-13-21, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments 8 (2012).
114. Memorandum from Peter R. Orszag, Dir., Office of Mgmt. & Budget, to Heads and Acting Heads of Exec. Dep'ts & Agencies: Guidance for Regulatory Review (Mar. 4, 2009), available at http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m09-13.pdf
115. Sunstein, supra note 140, at 1853.
116. Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 Harv. L. Rev. 1755 (2013) (analyzing different strategies for agency behavior in relation to executive review)
117. Note, OIRA Avoidance, 124 Harv. L. Rev. 994 (2011) (examining how and why agencies avoid OIRA review)
118. Lisa Heinzerling, Inside EPA: A Former Insider's Reflections on the Relationship Between the Obama EPA and the Obama White House, 31 Pace Envtl. L. Rev. 337+360 (2014) (drawing on insider experience at the EPA to question the plausibility of agencies avoiding OIRA review).
119. See Nou, supra note 143, at 1789 ("[A]gencies can choose between simple inaction, adjudication, guidance documents, or nonsignificant rules as instruments that are more likely as a class to bypass presidential review.").
120. O'Connell, supra note 132, at 901 (noting that because so few statutes contain the phrase "on the record after opportunity for [a]... hearing," "agencies generally do not conduct formal rulemakings when promulgating legally binding regulations" (alterations in original)).
121. Nou, supra note 143, at 1784-1785.
122. O'Connell, supra note 132, at 909+917-918 (considering strategies for an agency's choice of rulemaking process and observing that "[m]ore formal procedures... produce greater deference from reviewing courts").
123. Steven M. Davidoff & David Zaring, Regulation by Deal: The Government's Response to the Financial Crisis, 61 Admin. L. Rev. 463+466 (2009) (demonstrating that in the financial crisis the government largely used "deals" with the private sector rather than more traditional regulatory tools)
124. David Zaring, Administration by Treasury, 95 Minn. L. Rev. 187+189 (2010) (noting that the Treasury Department did not consult OMB regarding the terms of the financial bailout).
125. Nou, supra note 143, at 1788-1789 (commenting on the possibility of avoiding White House review through a nonsignificant rulemaking form)
126. Note, supra note 143, at 1002+1006, 1012 (listing these two possibilities for avoiding OIRA review, finding mixed experiences among two former OIRA officials regarding the likely success of regulatory avoidance, and providing evidence that cost underestimation is used when making politically contentious rules).
127. See Administrative Procedure Act, 5 U.S.C. § 553(b) (2012) (requiring the publication of notice and comments in the Federal Register); regulations.gov, http://www.regulations.gov (providing public access to proposed regulations, final regulations, and other documents published by the U.S. federal government).
128. Bressman & Vandenbergh, supra note 120, at 50-51
129. Heinzerling, supra note 143, at 356-357 (describing the direct engagement of OIRA with the EPA).
130. Sunstein, supra note 140, at 1860.
131. Exec. Order No. 12,866 § 6(b)(4)(B)-(C), 3 C.F.R. 638, 647-48 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 802, 805-06 (2012).
132. See Exec. Order No. 12,866 § 6(b)(4)(D), 3 C.F.R. at 648 (requiring disclosure only of documents, and those only during the official review process).
133. Mendelson, supra note 122, at 1149 ("[P]ublic information about the content of executive supervision... is surprisingly rare.").
134. Assertion of Executive Privilege over Communications Regarding EPA's Ozone Air Quality Standards and California's Greenhouse Gas Waiver Request, 32 Op. Att'y Gen. (June 19, 2008), http://www.justice.gov/olc/opiniondocs/ozonecalwaiveragletter.pdf (advising the President that he may lawfully assert executive privilege over subpoenaed documents regarding EPA's proposed regulations).
135. Executive Order 12,866 states: Nothing in this Executive order shall affect any otherwise available judicial review of agency action. This Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. Exec. Order No. 12,866 § 10, 3 C.F.R. at 649.
136. Regulatory Matters, Office Mgmt. & Budget, http://www.whitehouse.gov/omb/inforeg_regmatters. The website does link to regulations.gov, which does contain a few redlined documents. For an example of a proposed rule and OMB's redlined changes, see
137. OMB Review of Proposed Rule re Executive Order 12866, Foreign Supplier Verification Programs for Importers of Food for Humans and Animals, July 29, 2013 - Memorandum, regulations.gov, http://www.regulations.gov/#!documentDetail;D=FDA-2011-N-0143-0036.
138. U.S. Gen. Accounting Office, GAO-03-929, Rulemaking: OMB's Role in Reviews of Agencies' Draft Rules and the Transparency of Those Reviews 13 (2003).
139. Sam Abbott, Disclosure at the Office of Information and Regulatory Affairs: Written Comments and Telephone Records Suspiciously Absent, Center for Effective Gov't (Feb. 26, 2013), http://www.foreffectivegov.org/disclosure-at-oira-written-comments-and-telephone-records-suspiciously-absent
140. Cary Coglianese, The Rhetoric and Reality of Regulatory Reform, 25 Yale J. on Reg. 85+88 (2008) (summarizing criticisms made during the Reagan Administration regarding the "costly delays" caused by OMB review).
141. Heinzerling, supra note 143, at 371 (noting that as the process currently works "OIRA calls an official at the agency and asks the agency to ask for an extension" and "the agency is not to decline to ask for such an extension" and, therefore, that "not only is there no deadline for OIRA review, but OIRA itself controls the agency's 'requests' for extensions," allowing rules to remain at OIRA "for years").
142. Editorial Bd., Editorial, Stuck in Purgatory, N.Y. Times, June 30, 2013, http://www.nytimes.com/2013/07/01/opinion/stuck-in-purgatory.html
143. Regulatory Delay in 2012, Center for Effective Gov't (Dec. 18, 2012), http://dev.ombwatch.org/regulatory-delay-in-2012
144. The new OIRA Administrator has promised "to ensure that regulatory review at OIRA occurs in as timely a manner as possible." John M. Broder, Regulatory Nominee Vows to Speed Up Energy Reviews, N.Y. Times, June 12, 2013, http://www.nytimes.com/2013/06/13/us/politics/environmental-rules-delayed-as-white-house-slows-reviews.html.
145. Juliet Eilperin, White House Delayed Enacting Rules Ahead of 2012 Election to Avoid Controversy, Wash. Post, Dec. 14, 2013, http://www.washingtonpost.com/politics/white-house-delayed-enacting-rules-ahead-of-2012-election-to-avoid-controversy/2013/12/14/7885a494-561a-11e3-ba82-16ed03681809_story.html
146. Curtis W. Copeland, Length of Rule Reviews by the Office of Information and Regulatory Affairs 4 (2013), available at http://www.acus.gov/sites/default/files/documents/Revised%20OIRA%20Report%20Re-posted%202-21-14.pdf
147. supra notes 8-10 and accompanying text.
148. Heinzerling, supra note 143, at 338 (criticizing OIRA as "rest[ing] on assertions of decision-making authority that are inconsistent with the statutes the agencies administer").
149. Sunstein, supra note 140, at 1865-1866. As we have seen, because it would be unlawful for the agency to consider the cost-benefit analysis in making its decision in such situations, even if the ultimate outcome could be rationalized under the applicable statutory standard, OIRA must claim that the cost-benefit analysis is merely for informational purposes.
150. Sabrina Tavernise, Groups Urge Action on Food Safety Law, N.Y. Times, July 17, 2012, http://www.nytimes.com/2012/07/17/science/consumer-groups-criticize-delay-on-food-safety-law.html
151. Watts, supra note 180, at 7 (describing "the blanket rejection of politics" as the courts' status quo view of administrative decision making).
152. Tummino v. Hamburg, 936 F. Supp. 2d 162, 170, 192 (E.D.N.Y. 2013). According to reports, the Health and Human Services reversal came as "Mr. Obama was campaigning for reelection, and some Democrats said he was conscious of avoiding divisive issues that might alienate voters." Pam Belluck, Judge Strikes Down Age Limits on Morning-After Pill, N.Y. Times, Apr. 5, 2013, http://www.nytimes.com/2013/04/06/health/judge-orders-fda-to-make-morning-after-pill-available-over-the-counter-for-all-ages.html.
153. Michael Livermore argues that the agency role in developing the methodology for cost- benefit analysis undercuts arguments that OIRA's review of cost-benefit analysis undermines agency independence because the methodology can have important effects on regulatory outcomes. See Michael A. Livermore, Cost-Benefit Analysis and Agency Independence, U. Chi. L. Rev. (forthcoming), available at http://ssrn.com/abstract=2327554. Although this effect makes the analysis of OIRA's role more complex, its relevance is limited to the extent that OIRA's role now extends far beyond review of cost-benefit analysis.
154. Sunstein, supra note 140, at 1840.
155. Heinzerling, supra note 143, at 367-368 (criticizing OIRA for "play[ing] an active role in adjusting EPA's discussions of technical matters in its NAAQS decisions.... [without] the scientific expertise necessary to make judgments about where the NAAQS should be set").
156. Bressman & Vandenbergh, supra note 120, at 50.
157. Judy Pasternak, Hundreds of EPA Scientists Report Political Interference, L.A. Times, Apr. 24, 2008, http://articles.latimes.com/2008/apr/24/nation/na-epa24
158. Anthony Adragna, Document Shows Power Plant Guidelines Rule Significantly Altered in White House Review, Bloomberg BNA (Aug. 9, 2013), http://www.bna.com/document-shows-power-n17179875765/
159. Bressman & Vandenbergh, supra note 120, at 66.
160. Sunstein, supra note 140, at 1871-1872.
161. Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 76-78 (2012) (comparing the limited role of judicial review of administrative actions in early U.S. history with its more robust conception after the APA). To be sure, judicial review of agency action since the APA has been uneven. The courts took a particularly active role in overseeing agencies in the 1960s and 1970s, for example.
162. Reuel E. Schiller, Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945-1970, 53 Vand. L. Rev. 1389+1392 (2000).
163. Administrative Procedure Act, 5 U.S.C. §§ 702+706 (2012).
164. City of Arlington, Tex. v. FCC, 133 S. Ct. 1863+1868 (2013).
165. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (denying plaintiffs standing for failure to establish injury in fact); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976) (denying plaintiffs standing because too many inferences were required to establish causation); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 105 (1998) (denying plaintiff standing for failure to pass the redressability test). See generally Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131+1185-98 (2009).
166. See, e.g., Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 812 (2003) (finding a challenge to an agency regulation on national park concessions not ripe for judicial review and requiring the challenger to wait to dispute a concrete contract).
167. See Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 62-63 (2004) (holding that the courts have the authority to compel only discrete, legally required actions that agencies have failed to perform).
168. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843-44 (1984). Chevron has a cultlike status, standing now for far more than it did at the time, when it was perceived as summarizing existing law. See Thomas W. Merrill, Justice Stevens and the Chevron Puzzle, 106 Nw. U. L. Rev. 551, 553 (2012) (recognizing that "Chevron has come to stand for judicial deference to administrative interpretations of law" in spite of the fact that Justice Stevens "was not especially deferential to agency decisions" in his majority opinion).
169. United States v. Mead Corp., 533 U.S. 218 (2001).
170. O'Connell, supra note 132, at 909+917-918 (articulating that many believe that notice-and-comment rulemaking could make Chevron deference more likely)
171. Mead, 533 U.S. at 245 (Scalia, J., dissenting) (positing that the Court's decision in Mead will encourage agencies to use notice-and-comment procedures to gain more deference in judicial challenges).
172. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
173. Randolph J. May, Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox, 62 Admin. L. Rev. 433 (2010) (discussing the discretion afforded by some of these decisions and characterizing this discretion as problematic).
174. Sunstein, supra note 82, at 288-290 (noting that "the [Chevron] approach is unlikely to serve Congress' own goals and expectations" and suggesting that this is because excessive judicial deference allows the agency too much latitude to deviate from congressional intent).
175. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 865-66 (1984) ("[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is....").
176. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
177. Lisa Heinzerling, Statutory Interpretation in the Era of OIRA, 33 Fordham Urb. L.J. 1097+1113-1117 (2006) (arguing against Chevron deference in the context of a Clean Water Act regulation because OIRA, rather than the EPA, was responsible for the decision on how to interpret the statute).
178. See supra notes 199-201 and accompanying text.
179. Brief of the Securities and Exchange Commission, Appellant/Petitioner at 23, U.S. SEC v. Citigroup Global Mkts. Inc., 673 F.3d 158 (2d Cir. 2012) (Nos. 11-5227, 11-5375, 11-5242)
180. Hamilton Jordan Jr., Should Courts Take a "Hard Look" at Agency Enforcement Settlements? 3 (May 22, 2013) (unpublished manuscript) (citing SEC v. Clifton, 700 F.2d 744 (D.C. Cir. 1983)) (on file with authors)
181. FTC, The FTC in 2010: Federal Trade Commission Annual Report 2 (2010) (listing the number of consents per total FTC antitrust enforcement actions from 2005 to 2010)
182. P. David Lopez, EEOC, Office of General Counsel Fiscal Year 2009 Annual Report 62 (2009) (stating that 83.9% of EEOC suit resolutions in FY 2009 were settlements).
183. Heckler v. Chaney, 470 U.S. 821 (1985); see also Ass'n of Irritated Residents v. EPA, 494 F.3d 1027, 1030 (D.C. Cir. 2007) (asserting that enforcement actions are excluded from judicial review under § 701(a)(2) of the APA); N.Y. State Dep't of Law v. FCC, 984 F.2d 1209, 1216 (D.C. Cir. 1993) ("Such agency enforcement decisions, which often turn on careful calculations about finite resource allocation, are ill-suited to judicial oversight."); Schering Corp. v. Heckler, 779 F.2d 683, 685-86 (D.C. Cir. 1985) (explaining the Supreme Court's conclusion in Chaney that an agency's exercise of its enforcement power is "beyond the reach of APA review"). See generally Jordan, supra note 214, at 15-18.
184. Jordan, supra note 214, at 4-9.
185. Edward Wyatt, Judge Blocks Citigroup Settlement with S.E.C., N.Y. Times, Nov. 28, 2011, http://www.nytimes.com/2011/11/29/business/judge-rejects-sec-accord-with-citi.html
186. U.S. SEC v. Citigroup Global Mkts. Inc., 673 F.3d 158, 161 (2d Cir. 2012).
187. We are not examining what the ideal administrative state might look like. For instance, we do not consider how many agency positions ideally should be vacant at any given time, or how many regulations ideally should go through no or abbreviated prior public process, based on a set of normative criteria.
188. W. Kip Viscusi & Ted Gayer, Safety at Any Price?, Regulation, Fall 2005, at 54 (recognizing that proper cost-benefit analysis can be socially optimal but critiquing the efficacy of the current approach).
189. Sunstein, supra note 140, at 1840-1841.
190. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245+2334-2339 (2001). Agency employees believe presidential involvement in agency decisions provides democratic legitimacy, even if they disagree with the views of the White House.
191. Bressman & Vandenbergh, supra note 120, at 89-90 (noting that EPA employee comments convey that the President plays a "democratizing role" in balancing competing interests).
192. Sidney A. Shapiro & Robert L. Glicksman, Risk Regulation at Risk: Restoring a Pragmatic Approach 40+46-72 (2003) (defending Congress's choice not to rely on cost-benefit analysis when shaping risk regulation)
193. Frank Ackerman & Lisa Heinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, 150 U. Pa. L. Rev. 1553+1556 (2002).
194. Rena Steinzor et al., Ctr. for Progressive Reform, Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment 2-15 (2011) (examining data from 2001 to 2011 to conclude that industry special interests warped agency regulations through meetings with OIRA)
195. William D. Araiza, Judicial and Legislative Checks on Ex Parte OMB Influence over Rulemaking, 54 Admin. L. Rev. 611+612 (2002) (arguing that inappropriate OMB involvement in rulemaking may necessitate a judicial or legislative response)
196. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821+855-859 (2003) (analyzing OIRA meeting records by industry, agency, rule stage, and significance). An early article by Cass Sunstein, who later headed OIRA, recognized the risk of interest group influence: OMB supervision may of course generate risks of its own, principally in the form of increased power by private groups with disproportionate access to OMB officials. The creation of a second low-visibility decision may also increase rather than diminish the dangers of self-interested representation and factional tyranny. Sunstein, supra note 82, at 294 (footnote omitted).
197. Shepherd, supra note 17, at 1560+1679-1681 (describing the APA as "the armistice of a fierce political battle over administrative reform").
198. Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, 57 L. & Contemp. Probs. 1+37-42 (1994) ("Regulatory review is now a routine part of the executive process.").
199. Clearly, successive presidents have not thought that the power to appoint agency heads and key subordinates was a sufficient means of ensuring consistency between agency and White House preferences. See Joshua D. Clinton et al., Separated Powers in the United States: The Ideology of Agencies, Presidents, and Congress, 56 Am. J. Pol. Sci. 341+352 (2012) (finding that preferences of agency personnel are not aligned with the appointing President or Congress). There are several possible reasons for this presidential belief in a principal-agent problem. First, there is the possibility that constant interaction with agency staff will "corrupt" the views of political appointees. Second, White House preferences may change after an appointment is made, but replacing the appointee may be impractical. Third, the White House may be motivated by partisan political calculations that agency heads are not competent to make. And fourth, advice-and-consent appointees have to go through Senate committees (and the full Senate), whose policy views have to be accommodated when selecting appointees, so the appointee's policy views may be a compromise due to the needs of confirmation rather than purely reflecting the views of the White House. Although one might argue that this mismatch is a "feature rather than a bug" in systemic terms-perhaps the requirement of confirmation is actually intended to produce this effect-from the President's point of view it may lead to agency heads having policy preferences that contrast with those of the President.
200. Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air: Or How the Clean Air Act Became a Multibillion-Dollar Bail-Out for High-Sulfur Coal Producers and What Should Be Done About It 26-27 (1981) (identifying how a coalition of disparate groups was able to take advantage of institutional shortcomings in Congress to shape environmental policy)
201. Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 Md. L. Rev. 1141, 1159 (1995) (noting that broad, grassroots support for environmental measures in the early 1970s "contributed to a political climate extremely favorable to environmental legislation").
202. Percival, supra note 229, at 1165.
203. Jody Freeman & David B. Spence, Old Statutes, New Problems, U. Pa. L. Rev. (forthcoming) (manuscript at 1), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2393033 (noting that "[r]ather than 'going for broke,' [agencies] tend to choose policies that stop short of open conflict with Congress, yet reflect the agency's mission, the president's priorities, and the limits of their statutory authority").
204. Sharon Jacobs, The Administrative State's Passive Virtues, 66 Admin. L. Rev. (forthcoming 2014) (manuscript at 29-31), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355988 (stressing the importance for agencies of cultivating and maintaining presidential goodwill).
205. See Frank Ackerman & Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing 153-58 (2004); Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 185-86 (2008).
206. See generally Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 35-45 (1990) (summarizing arguments).
207. Cass R. Sunstein, Simpler: The Future of Government 51-52, 164-65 (2013) (describing the primacy of economic rationality espoused by some prominent scholars at the University of Chicago and stressed by some members of Congress).
208. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51+52 (2008).
209. For a recent proposal in this vein, see Rena Steinzor, The End of Centralized White House Regulatory Review: Don't Tweak EO 12,866, Repeal It, CPR Blog (Oct. 4, 2013), http://cprblog.org/CPRBlog.cfm?idBlog=837F8E83-9DA1-F501-FC902B3836C8542D.
210. In many ways, this third option might seem like a return to the world of New Deal governance. But if judicial review were limited to determining whether an agency action is clearly prohibited by statute, this would not be a complete return to the pre-APA world for two reasons. First, standing to challenge administrative action is much broader than it was then, and in particular, beneficiaries of regulation would have the power to enforce statutory limits on agencies in certain contexts. Second, prior to Chevron, courts had more power to review an agency's statutory interpretations. In short, in one way agencies would be less subject to judicial oversight than they were prior to the APA, while in another way they would be more constrained by the courts.
211. We are putting aside two other possible strategies. The first is to eliminate the administrative state in favor of a libertarian watchdog state or a socialist state in which government regulation of business is unnecessary because the government runs all businesses. We consider these equally improbable. The second is a radical transformation in methods of governance: for example, replacing agency rulemaking with the use of some combination of an open-source drafting platform and prediction markets, or delegating authority to some AI (artificial intelligence). We leave consideration of the second of these strategies to less earthbound thinkers than ourselves.
212. Legislative Reorganization Act of 1946, ch. 753, 60 Stat. 812 (codified as amended in scattered sections of 2, 3, 5, 10, 15, 28, 31, 33, 34, 40, 44, 46, 50 U.S.C.); Joanna L. Grisinger, The Unwieldy American State 111 (2012) (explaining that the Act "revamped the congressional committee structure" in part by consolidating numerous committees into new standing committees with more "functionally defined" oversight of administrative agencies). We suspect that changes in Congress have eroded that Branch's ability to rely on congressional committees to support the statutory missions of agencies against incursions by other parts of the Executive Branch.
213. We recognize that at present Congress seems too paralyzed by political polarization to undertake this role, at least on any consistent basis, but we are hopeful that this paralysis will prove temporary. If not, the problems confronting the American system of governance will far transcend the issues discussed in this Article. Even if Congress becomes more active in governance, it may or may not view compliance with law as a significant independent factor in oversight, as opposed to approval or disapproval of outcomes on policy or political grounds.
214. See Anne Joseph O'Connell, Intelligent Oversight, in The Impact of 9/11 and the New Legal Landscape: The Day that Changed Everything? 157, 168 (Matthew J. Morgan ed., 2009) (arguing that increased GAO evaluation of the intelligence community would be feasible in today's political climate because the GAO does not differentiate between chairman and ranking minority member requests for review).
215. Lisa Heinzerling, The FDA's Plan B Fiasco: Lessons for Administrative Law, 102 Geo. L.J. (forthcoming 2014) (manuscript at 2, 24-26), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320471) (noting how the GAO provided "crucial information" in an episode involving the Plan B pill).
216. O'Connell, supra note 104, at 17-18 (advocating the imposition of deadlines on the confirmation process).
217. Jeremy W. Peters, In Landmark Vote, Senate Limits Use of the Filibuster, N.Y. Times, Nov. 21, 2013, http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html
218. Vivian S. Chu & Daniel T. Shedd, Cong. Research Serv., R42720, Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues 12 (2012) (noting "there may be lingering questions as to whether the President has the legal authority to extend requirements of the executive order to the [independent regulatory commissions] without... congressional action"). One of the authors of this Article (O'Connell) has written in support of proposed legislation that permits the President to extend regulatory review to independent regulatory commissions and boards. Letter from Admin. Law Professors to Senator Joe Lieberman, Chairman, Senate Comm. on Homeland Sec. & Governmental Affairs, and Senator Susan Collins, Ranking Member, Senate Comm. on Homeland Sec. & Governmental Affairs, on S. 3468, The Independent Agency Regulatory Analysis Act (Jan. 2, 2013), available at http://www.portman.senate.gov/public/index.cfm/files/serve?File_id=3f7b2523-c274-438e-9892-5d8dcbcc0345
219. S. 1173, 113th Cong. §§ 3-4 (2013) (affirming the President's authority to require independent regulatory commissions and boards to comply with regulatory directives but not creating a right of judicial review over those directives).
220. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, §§ 111-112, 124 Stat. 1376, 1392-98 (2010) (codified at 12 U.S.C. §§ 5321-5322 (2012))
221. Jacob E. Gersen, Recent Development, Administrative Law Goes to Wall Street: The New Administrative Process, 65 Admin. L. Rev. 689 (2013) (describing the organization and role of the Financial Stability Oversight Council).
222. Deadlines may generate costs, including encouraging agencies to forgo procedural mandates under the APA, see Jacob E. Gersen & Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U. Pa. L. Rev. 923, 972 (2008) (noting that agencies may use deadlines as an excuse to "opt out" of certain procedures), and allocating agency resources inefficiently
223. Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 Admin. L. Rev. 171+186-200 (1987) (demonstrating the costs imposed by statutory deadlines in terms of wasted and misallocated resources).
224. supra note 11 and accompanying text.
225. The Deputy Administrator is currently a nonpolitical position. Sunstein, supra note 140, at 1845.
226. It does some of that work already. See, e.g., U.S. Gov't Accountability Office, GAO-14-423T, Federal Rulemaking: Regulatory Review Processes Could Be Enhanced (2014).
227. Strengthening Congressional Oversight of Regulatory Actions for Efficiency, S. 1472, 113th Cong. (2013).
228. Curtis W. Copeland, Cong. Research Serv., RL32397, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs 23+28 (2009) ("Congress has enacted legislation expanding OIRA's statutory responsibilities [for example, related to the Unfunded Mandates Reform Act of 1995], and has considered (but not enacted) legislation that would provide a statutory basis for OIRA's regulatory review function.").
229. Given Chevron, agencies may find it hard to resist OIRA pressure to employ cost- benefit analysis as a basis for decision. Congress could provide presumptions regarding the application of cost-benefit analysis, universalize its use, or forbid the use of cost-benefit analysis under certain statutes or provisions of statutes.
230. The two of us are not in complete agreement about the desirability or direction of change. For one example of an attempt to make agency decisions be justified by cost-benefit analysis, see Regulatory Responsibility for Our Economy Act of 2013, S. 191, 113th Cong. § 3 (2013).
231. See Professor Howard Shelanski Confirmed as Administrator, Office of Information and Regulatory Affairs, Geo. L. (June 28, 2013), http://www.law.georgetown.edu/news/press-releases/professor-howard-shelanski-confirmed-as-administrator-office-of-information-and-regulatory-affairs.cfm
232. Although we are unaware of any formal documentation to this effect, we have some reason to believe that CEA sometimes plays this role as an adjunct to OIRA.
233. Freeman, supra note 120, at 362 (stating that the late-stage input from other agencies typical of OIRA-led regulatory review inhibits substantive changes in rulemaking).
234. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075+1085-87 (1986) (discussing the extent of OMB's informal involvement in the rulemaking process).
235. The Administrative Conference of the United States (ACUS), a nonpartisan agency tasked with improving the operation of the administrative state, recently called for more "informal discussions" to predate OIRA review as one mechanism to decrease OIRA delays. Memorandum from the Admin. Conference of the U.S. to the Comm. on Admin. & Mgmt. and the Comm. on Regulation 6 (Nov. 12, 2013), available at http://www.acus.gov/sites/default/files/documents/Draft%20OIRA%20Statement%2011-12-13%20CIRCULATED.pdf The Center for Effective Government, among others, has objected to this recommendation, at least without more transparency on these consultations.
236. See Letter from the Ctr. for Effective Gov't to the Comm. on Admin. & Mgmt. and the Comm. on Regulation (Nov. 12, 2013), available at http://acus.gov/sites/default/files/documents/CEG%20Public%20Comment%20for%20OIRA%20Project.pdf
237. In addition, OIRA Administrator John Graham, who served under President George W. Bush, also increased transparency by posting more information (including meeting logs) online, among other items. See John D. Graham et al., Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953+966-68 (2006).
238. ACUS recently "offer[ed] a discrete set of principles for improving the timeliness of review and the transparency concerning the causes for delay." Administrative Conference Statement #18: Improving the Timeliness of OIRA Regulatory Review 5 (Admin. Conference of the U.S. 2013), available at http://acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf
239. This function of agencies has been justified by neorepublican theories that stress deliberation and achievement of broad public interests. See Mark Seidenfeld, The Role of Politics in a Deliberative Model of the Administrative State, 81 Geo. Wash. L. Rev. 1397+1445-1448 (2013).
240. Watts, supra note 180, at 8-9 (arguing that certain political influences should qualify as valid reasons to uphold agency decision making).
241. A more constrained position, which we discuss infra, would be to require agencies to disclose political input, subject to constitutional constraints, but not to allow agencies to rely on those factors in judicial review. Mendelson, supra note 122, at 1163-1175.
242. In a recent article, Daniel Walters highlights that litigation can provide agency staff with leverage against political directives. Daniel E. Walters, Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, 28 J.L. & Pol. 129+175-78 (2013). It has been suggested that agencies generally prefer Chevron deference.
243. Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Yale L.J. 1032+1061-1062 (2011). The effort to consider how administrative law affects the internal distribution of power within agencies is very much in the spirit of this Article, but we would suggest that such consideration should not overlook potential impacts on the distribution of power between the agency and other parts of the Executive Branch.
244. Mendelson, supra note 122, at 1163-1175 (summarizing the pros and cons of increased scrutiny of White House involvement in agency decision making).
245. Heinzerling, supra note 243 (manuscript at 59) (calling such an approach a "lie").
246. For discussion of a striking example of just such a situation, see id. There is considerable dispute about whether the President has statutory or constitutional authority to make decisions unilaterally or to mandate particular decisions when a statute purports to vest authority in an executive agency rather than directly in the President. Kagan, supra note 222, at 2327-2328 (arguing that unless a statute forecloses it, presidents have directive authority)
247. Nina A. Mendelson, Another Word on the President's Statutory Authority over Agency Action, 79 Fordham L. Rev. 2455 (2011) (arguing in favor of such presidential authority and advocating greater disclosure rather than efforts to limit this power), with Robert V. Percival, Who's In Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?, 79 Fordham L. Rev. 2487, 2488 (2011) (arguing that "even if the President has unfettered removal authority over the heads of non-independent agencies, it matters that this removal power does not imply the power to control decision making entrusted by law to agency heads")
248. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006) (arguing that presidents have directive authority only if the statute delegates to the President and not an agency head). We would observe, however, that even if the President has such power, it seems clear that he or she cannot freely delegate it to other administration officials. Otherwise, the President could reorganize the government at will simply by reallocating statutory powers among officials, a power not granted to the President by Congress. Therefore, this debate is directly relevant only in the case where the President personally intervenes in a decision and overrides a contrary determination by an agency head. It is difficult, we think, to account for the Constitution's requirement of Senate confirmation for principal officers if the President may freely delegate control of those officials to individuals confirmed for other posts or staff members who have not been subject to confirmation. In terms of personal presidential interventions, we are inclined to side with those who do not find a basis for such directives in Article II when Congress has reposed power elsewhere, in part because the requirement of confirmation for senior officials seems senseless unless they were intended to be more than presidential hand puppets. Moreover, when agency officials are removable by the President, we see a genuine practical difference between a rule that requires the President to fire an obdurate subordinate and one that allows the President to get his or her way, putting the onus on the official to resign afterwards in protest. In any event, personal intervention by the President is unlikely to be the norm except in the most sensitive rulemakings.
249. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667+1813 (1975).