Peter Ketcham-Colwill · October 2014
82 GEO. WASH. L. REV. 1622 (2014)
Under Executive Order 12,866, the Office of Information and Regulatory Affairs (“OIRA”) is responsible for ensuring that regulatory actions taken by federal agencies are consistent with the President’s priorities and do not conflict with the policies or actions of another agency. Although issued by the Clinton Administration in part to address concerns with executive interference with agency decisionmaking, OIRA review remains characterized by indefinite delay of agency rules, a lack of transparency, and the absence of accountability in the review process.
The current state of OIRA review raises serious questions about the proper scope of executive influence over decisions committed by law to the discretion of agency officials. This Essay argues that OIRA review as currently practiced fails to comply with Executive Order 12,866, results in violations of statutory deadlines, and undermines the openness in administrative policymaking codified by the Administrative Procedure Act. It further argues that the present form of OIRA review exceeds the President’s constitutional authority to influence agency action through the removal power by circumventing the structural limits on the use of this power, resulting in impermissible direction of agency decisionmaking. To address these issues, the Essay calls for legislative and executive action to provide enforceable time limits for and increase the transparency of OIRA review.
