Beyond OIRA for fairness in the regulatory process

OIRA should use both top-down and bottom-up approaches to advance equity at the agency level.

A recent forum organized by the Administrative Conference of the United States (ACUS) included a remarkable sign. This panel compared different approaches to developing and implementing strategies that enable underserved communities to participate more fully in regulatory policy-making processes. It was particularly timely in light of President Biden’s decision Executive Decree on “Advancing Racial Equity and Support for Underserved Communities through the Federal Government”.

Specifically, the panel focused on the merits of a top-down approach to implementing the decree. Under such an approach, the White House Office of Information and Regulatory Affairs (OIRA) would manage all efforts.

As the centerpiece of presidential leadership, the OIRA serves both as a quality overseer of the agency’s action and as a spokesperson for the president’s policy goals. Professor Richard Revesz at suggested that OIRA itself or another centralized, presidential enforcement body could encourage agencies to consider the distributional consequences of regulation. His proposal could result in an administrative focus on equitable outcomes similar to the invasive government culture of cost-benefit analysis that OIRA has fostered since the Reagan administration. Similarly, ACUS panelists’ suggestions that OIRA should publish guidelines to increase participation in rule-making and to balance efficiency and fairness in cost-benefit analysis fit well into a conventional top-down approach to regulatory governance.

These top-down approaches are commendable. However, they are also idealized. Indeed, an entirely top-down approach is likely to only foster an impermanent growth of regulatory justice.

First, the problem with executive orders — or in some cases, their advantage — is that they only last as long as the president who issued them is in office. Due to the ephemeral nature of the decrees, we should reconsider the role of OIRA in their implementation.

Second, the reason that cost-benefit analysis conducted by OIRA has proliferated throughout government and has been the preferred approach of presidents, regardless of their political party, is that it reinforces presidential control over the action of the agency. The control advanced by cost-benefit analysis can be used to advance any sort of substantive policy or agenda, making it useful to presidents regardless of their political interests or partisan leanings.

In contrast, prioritizing distributive equity or regulatory participation for underserved communities does not benefit the ability of presidents to exercise control over executive agencies for their own ends. As a result, it seems unlikely that presidents will employ OIRA to promote these values ​​through changes in administration and shifts in party dominance.

So what can we do about it?

A non-centralized approach can better serve the values ​​of President Biden’s Executive Order over time, that is, even after President Biden is no longer in office. OIRA should embed equity and accessibility priorities at the agency level by changing bureaucracy and institutional design. Such bottom-up improvements would complement top-down approaches to create more lasting change.

Indeed, top-down and bottom-up approaches could interact to drive sustainable progress in how the administrative state engages marginalized, underserved, and vulnerable communities. The Biden administration’s executive order declared that “advancing equity requires a systematic approach incorporation equity in decision-making processes, executive departments and agencies. I attorney a multifaceted approach to accomplish this goal.

The executive branch should use the executive order, which will surely be revoked once the opposing side takes office, as an impetus to change administrative structures and practices at the agency and sub-bureaucratic levels.

The answer is not to abandon centralization altogether. Indeed, President Biden’s OIRA should work with political appointees, including White House officials and agency heads, as well as expert administrators on the front lines of the regulatory process, to entrench changes in the administrative state that resist the shifting political winds. The more carefully and collaboratively this is accomplished, the more likely these changes are to “stick”. As a result, the current White House could better ensure that improving regulatory access and outcomes for underserved communities is part of agency standard operating procedures.

So what could that look like?

At a minimum, the president should refrain from using the pulpit to intimidate or interfere in ground-level administrative policies in a way that exacerbates injustice. On the contrary, the president should continue to engage in the pro-equity rhetoric. This type of speech is, as Paul Butler professor at Georgetown University Law Center the disha “decent but limited start”.

In addition, the president could lead inter-agency administrative coordination, more detailed regulatory measures, issuance of agency guidance, priority enforcement, and other policies that expand administrative capacity to improve the engagement and equitable outcomes.

In addition, the White House should proactively arm the OIRA to impose regulatory review and changes – even reductions – in the application of cost-benefit analysis to ensure that agencies prioritize the needs of vulnerable communities.

Additionally, the White House, including the current OIRA, could require the agencies themselves to identify, investigate, and terminate administrative policies that make participation inaccessible to some people. The White House could also appoint policymakers who encourage the proliferation of officials with an interest in promoting fair administrative policies, especially rulemaking.

Finally, the White House could empower offices within agencies, such as civil rights offices — currently both ubiquitous and somewhat toothless — or newly created institutions serving as mini-OIRAs to improve regulatory processes and consequences. distributive. These intra-agency bodies could be leveraged to encourage agencies on a more individualized basis to implement mandates that improve regulatory access and outcomes for underserved communities. Moreover, these offices may persist in their quest for regulatory fairness, even after a new administration revokes the executive order and dismantles all OIRA initiatives related to the executive order.

Notably, these prescriptions are not intended to produce a more robust concentration of presidential power. Rather, they exploit the president’s ability to distribute and diffuse power within the executive branch away from itself – to Activate the “internal separation of powers” – to enhance the potential of executive agencies to act as a check against future White House residents who might interfere with or terminate the agencies’ efforts to improve equity.

In the end, as a teacher Brian Williams and carmen williams wrote, the president could lead the effort to foster a “New Administrative state… dependent on regulatory bodies and public administrators who are anti-racist and who seek to create and promote a fair, just and equitable approach to public administration to protect those who are traditionally considered least within our society. ” This result is perhaps preferable to the simple exploitation of old Administrative state to do better only during the period that President Biden is in office.

Bijal Shah is Visiting Professor of Law at UC Berkeley School of Law and Associate Professor of Law at Arizona State University, Sandra Day O’Connor College of Law.

This essay is part of a nine-part series entitled Create an administrative system for all.

Comments are closed.