As soon as the surprise wore off that Donald Trump was elected president, attention turned quickly to Washington’s favorite parlor game: Who will serve in President-elect Trump’s cabinet and White House? But for all of the speculation about Trump’s future chief of staff, Attorney General, Secretary of State, and so on (see Politico CNN, and the Hill, the rumor mill has been surprisingly silent about one of the most important jobs in the White House: the president’s “regulatory czar”.
Formally, the job is Administrator of the Office of Information and Regulatory Affairs, or “OIRA.” But its bureaucratic title obscures the immensely important role that it plans in the modern administrative state.
The OIRA administrator conducts the White House’s review of all executive agencies’ major rulemakings: It reviews the agencies’ cost-benefit analyses; it facilitates the interagency process by which the rest of the administration stops a single agency from “going rogue”; it produces the administration’s annual “Unified Agenda” for regulations; it sends annual reports on the administrative state to Congress; and it maintains an “open door” policy by which members of the public can come to the White House for one last opportunity to criticize a proposed regulation. (This all was summarized well in an article by Cass Sunstein, who was President Obama’s first OIRA chief.)
OIRA’s immense responsibility justifies the office’s nickname, the “regulatory czar”. It was the centerpiece of President Reagan’s efforts to rein in the administrative state. He formally established OIRA in a seminal directive, Executive Order 12291. His project was so successful that even his Democratic successors, Presidents Clinton and Obama, kept it largely intact through Executive Order 12866.
President Trump and his advisors will need to decide whether to simply re-adopt the Republican president’s E.O. 12291, modify the Democrats’ E.O. 12866, or create a new one from scratch. One of the most important questions will be whether the White House exercises its constitutional authority over “independent” agencies like the Securities and Exchange Commission and the Federal Communications Commission, which are currently exempt from OIRA’s review. (I explained this history once for National Affairs, here.)
The best sign of OIRA’s success may be the fact that progressives hate it. I am not exaggerating: In the days before the presidential election, the American Constitution Society, a liberal organization modeled on the Federalist Society, published a report proposing to “dismantle” OIRA and replace it with a much more pro-regulatory office, in order to help the EPA impose costlier environmental regulations more easily.
But even if they could not persuade Hillary Clinton to abolish OIRA, progressives were very aggressive in proposing people to fill that job. Last Friday, when Clinton’s election seemed imminent, an environmental news service published a list of prospective OIRA administrators, including significant progressives such as Lisa Heinzerling—a law professor who also served as policymaker in Obama’s EPA, clashing loudly with the Obama White House when OIRA (then led by Cass Sunstein) temporarily delayed the EPA from imposing immensely burdensome new regulations on ozone before the 2012 election.
Unsurprisingly, Heinzerling also wrote the new report proposing to “dismantle” OIRA.
But while progressives were publicly debating who should be Hillary Clinton’s pro-regulatory czar, there was little public discussion of who might fill this role in a Trump administration. Even in this week’s gossipy news stories about cabinet appointments, OIRA has attracted no attention. There are a number of ways that the Trump White House could approach this appointment:
It could appoint a recent veteran of Republican OIRAs, who could hit the ground running. This list would include Paul Noe, who was counselor to Bush’s first OIRA chief, John Graham, who has testified and written extensively on the need to reform and improve OIRA.
Or, it could appoint an administrative law scholar who is focused on the practical and constitutional problems raised by the modern administrative state. There are many of these, but one that comes to my mind is Neomi Rao, a former Bush White House lawyer who now teaches at George Mason University’s Antonin Scalia Law School and directs the school’s Center for the Study of the Administrative State. She has been a strong advocate for presidents asserting greater power over independent agencies.
Or, it could appoint lawyers who have served in administrations and who also have private sector experience battling with agencies. Gene Scalia (son of the late Supreme Court justice) served in Bush’s Labor Department, and subsequently spent eight years filing successful lawsuits against agencies for exceeding the law or failing to properly analyze regulations’ costs and benefits. Scalia has been so successful in cases against the SEC and Financial Stability Oversight Council that he attracts public criticism from liberal groups; for example, Mother Jones accused him of “Sabotaging Wall Street Reform,” simply because he succeeded in persuading the courts to keep agencies within their legal limits.
In a similar vein, the Trump Administration might consider Jeffrey Rosen, former general counsel of the White House Office of Management and Budget and now a lawyer in private practice. (Rosen, who recently served as Chairman of the American Bar Association’s Section on Administrative Law, should not be confused with the liberal law professor and journalist by the same name.) Rosen has been a strong proponent of requiring agencies to maintain a “regulatory budget” that would limit their discretion to impose new regulations without repealing old ones.
Or, Trump’s team might pick someone from Capitol Hill with experience overseeing agencies. One example is Brian Callanan, who currently works for Ohio senator Rob Portman as staff director and general counsel of the Senate’s Permanent Subcommittee on Investigations. Before that, Callanan was general counsel in Portman’s office, where he worked on regulatory reform legislation. He has been a vociferous but thoughtful critic of the fashionable progressive theory of thinking of regulations as “nudges”.
Finally, President Trump might decide to elevate the office by taking it out of OMB, where OIRA is currently buried on the organizational chart. If Trump’s White House makes the OIRA administrator a “direct report” to the president, then it might attract someone like Rep. Sean Duffy, a major critic of the Dodd-Frank agencies specifically and the administrative state in general.
Needless to say, these are just my suggestions. And, frankly, the list includes a number of my friends and colleagues. (Then again, my endorsement probably sets back their prospects, given my own vocal criticism of Donald Trump. But I’m happy to denounce them, if it helps.)
But if President-elect Trump and his team truly intend to assert the president’s constitutional power over the agencies, they need to make OIRA their top priority. If not, we can look forward to another Republican administration where bureaucrats mock the president’s defeats—just like the EPA’s bureaucrats did 2007, when the Bush administration lost the Massachusetts v. EPA climate-change case, as one of the EPA’s leaders later crowed in her memoir.
Adam J. White is a research fellow at the Hoover Institution.
