By Lisa Heinzerling
In his new book, “Simpler: The Future of Government,” Harvard law professor Cass Sunstein writes about his nearly four years as President Barack Obama’s “regulatory czar.” As the Administrator of the Office of Information and Regulatory Affairs (known as “OIRA”) within the Office of Management and Budget, Sunstein oversaw the regulatory output of the many agencies of the executive branch. Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein’s inbox.
Some never left. A group of Department of Energy efficiency standards, for example, have languished at OIRA since 2011, as has an Occupational Safety and Health Administration rule to finally reduce exposure to the silica dust that sickens workers every year.
In his revealing book, Sunstein tells us why: It is because he, Sunstein, had the authority to “say no to members of the president’s Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list“; to ensure that some rules “never saw the light of day”; to impose cost-benefit analysis “wherever the law allowed”; and to “transform cost-benefit analysis from an analytical tool into a “rule of decision,” meaning that “[a]gencies could not go forward” if their rules flunked OIRA’s cost-benefit test.
Assertive intrusions into agencies’ prerogatives — prerogatives given by law to the agencies, not to OIRA — were necessary, Sunstein insists, because otherwise agency decisions might be based not on “facts and evidence,” but on “intuitions, anecdotes, dogmas, or the views of powerful interest groups.” In Sunstein’s account, OIRA’s interventions also ensured “a well-functioning system of public comment” and “compliance with procedural ideals that might not always be strictly compulsory but that might be loosely organized under the rubric of ‘good government’.” No theme more pervades Sunstein’s book than the idea that government transparency is essential to good regulatory outcomes and to good government itself.
The deep and sad irony is that few government processes are as opaque as the process of OIRA review, superintended for almost four years by Sunstein himself. Few people even know OIRA exists; in fact, the adjective that most often appears in descriptions of this small office is “obscure.” Even fewer people know that OIRA has effective veto power over major rules issued by executive-branch agencies and that the decision as to whether a rule is “major” — and thus must run OIRA’s gauntlet before being issued — rests solely in OIRA’s hands. Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA.
This state of affairs poses several problems. Two have to do with law. One problem is that laws on workplace health, environmental protection, food safety and other protections give agencies — like OSHA, EPA, and the FDA — the authority to make rules. They do not give this authority to OIRA. No statute, in fact, gives OIRA the power to review agencies’ rules. This power today derives, instead, from a set of executive orders issued by Presidents Clinton and Obama. But it is a large question whether a law giving rulemaking authority to one part of government is properly construed as giving authority to another part of government, designated by the President. Most agree that a statute giving authority over food safety to the FDA does not allow the President to turn that power over to the Department of Agriculture. It is a little hard to see why that same statute can be interpreted to turn the power over to OIRA.