The regulatory review process engages a wide range of actors.
While my first three observations about how OIRA works shed light on what OIRA does, the fourth and last point sheds light on the nature of the work: Much of the OIRA process is highly technical, and it’s very rarely political in the sense in which that word is used in ordinary language. For example, you might have a rule that has trade implications, and it might affect our relations with China or Korea or Brazil or Germany. The Office of the United States Trade Representative will have something to say about that rule, especially if it’s legally problematic under international trade law, but also if the rule would compromise our trade relations with those nations. There might be a rule that an agency is issuing that is going to affect national security: it could be the State Department or it could be the Department of Transportation, which might have a rule that affects aircraft operations somewhere. In that case, I might be on the phone with others asking, “Is this okay?” We don’t want to do anything on a rule from an agency that’s going to raise a national security issue. Likewise, if the EPA is issuing a rule that some people fear will affect the energy supply, then the Department of Energy will be enlisted to see what the effect is going to be. These are efforts to engage, typically, career officials with technical expertise, not political officials. And the political officials are going to get involved only under a particular set of processes.
Here’s how the operation basically works. OIRA has about 45 people. They’re organized into branches. There’s an environmental and natural resources branch, which mainly handles EPA rules but that also does Interior stuff too. There is a branch that does health care and food and drug stuff. There is a branch that does transportation and homeland security. Basically, there are a bunch of branches with assigned jurisdiction. There’s someone who is called the desk officer who plays point guard. They’re like a point guard on a basketball team in the sense that a rule comes to them and they allocate it to multiple people throughout the government. If a rule comes in from, let’s say, the Department of Transportation, it will be sent out to numerous White House offices, and they will be asked for their views. It will also go to other parts of the federal government that might have an interest in resolving any issues or controversy.
The number of people who may look at it will be very broad. In the White House itself, there’s the Office of the Vice President; there’s the Domestic Policy Council; there’s the National Economic Council; there’s the United States Trade Representative; there’s the Council on Environmental Quality—that’s just an incomplete, illustrative list. It is also a way of suggesting that the White House is, in an important respect, a “they,” not an “it.” There’s a famous paper about Congress that says Congress is a “they,” not an “it.” It’s a little more complicated for the Executive Branch because there’s a boss: the President. But the President usually doesn’t get involved, certainly not typically at the early stages, so there’s truly a “they” who assesses rules. The desk officer’s obligation is to make sure that this “they” reviews the rules.
Now, before the rule gets into OIRA, especially if it’s a big deal, there might be White House involvement in advance. There’s a recent paper by Dean Richard Revesz, who’s one of the best in the business in administrative law, and his plea is that OIRA should be involved not just in scrutinizing rules that are coming in, but also in initiating agency action, particularly to overcome the risk of agency capture. There is a lot to be said about whether that’s a good idea.
One thing to keep in mind is that it’s actually the job of the White House policy offices to do exactly that. If the President has an idea about something that should be done—let’s call it action involving gun control—then the White House will play a big role in initiating that action. For gun control in particular, the Domestic Policy Council and the Office of the Vice President may be natural allies that will work with the relevant agencies, and maybe the Department of Justice, to do something.
Typically, if there is a presidential priority—maybe it involves healthcare reform and how to implement it—there will be people who will be initiating action within the White House long before OIRA gets involved. If the rule is a big economic deal or a big public policy deal, there will be a degree of inter-agency coordination before OIRA even sees a proposed rule.
I’ve indicated that the White House is a “they” and not an “it.” Know also that the range of parts of the federal government that have relevant information about rules submitted to OIRA is very broad. I knew very little, before I got to OIRA, about the Office of Advocacy within the Small Business Administration. But it’s an important office. The President is very concerned about small businesses: he actually has a memorandum on this point to make sure that regulation doesn’t, without sufficient justification, impose costs and burdens on small businesses. It’s the job of the Office of Advocacy, whose name isn’t coincidental, to raise the concerns of small business. If there’s a rule from one of the cabinet departments that the Small Business Administration’s Office of Advocacy thinks is trouble because it’s going to crush small business and make it hard for them to do what they should be doing, which is growing and helping the economy, then that opinion is going to be circulated and it’s really going to matter.
To pick another example: if the White House Counsel’s office has a view on a legal issue and thinks that the general counsel at a department has gotten it wrong, then White House lawyers are going to be engaged. The White House Counsel’s office can be a central player in the process, along with the Department of Justice.
Now the range of participants, as I am describing it, typically includes career people, not necessarily people with political roles. I have no idea what the political affiliation of OIRA’s staff is, and I don’t care. Their job is, essentially, to circulate the rules, to develop their own sense of where the rules might be off the mark, and to work with the multiple inter-agency commentators to get a solution that everyone finds agreeable.
Sometimes, the OIRA Administrator, or other political types in OIRA, won’t be involved, certainly not at the early stages. They will largely rely on the career people to work out the substantive concerns to make sure there are no legal problems, to make sure there isn’t a scientific error, or to make sure that there isn’t going to be an unanticipated bad consequence from a rule.
I’ll share a little story that is relevant to this dynamic. Rules are often very long. If you haven’t read them, you have some surprises in store: they can be over one thousand pages long. After a while at OIRA, I had read a large number of them, and I discovered on a few occasions that there was a provision on page 700 or 800 that I hadn’t known about until I had read all 1,200 pages. That hidden provision, on occasion, seemed to me not clearly ideal, and I wouldn’t have known about it except that I had been obsessive about reading all the pages. So with the support of others, I issued a memorandum saying that every long or complex rule had to be accompanied by a short executive summary of typically four to six pages, which basically says what the rule does, what the legal authority is, what all the important provisions say, and what the costs and benefits are so that everyone can see it. It’s a ridiculously small thing to do, but it’s turned out to be extremely helpful in facilitating scrutiny of rules by career people and, as I am about to mention now, people who are more political.
If a rule can’t be sorted out through this inter-agency process dominated by career staff, it’s subject to something which is called elevation—a word that I really dislike and, at one point, resisted until I gave up. There’s a U2 song called Elevation. It’s a really happy song. I encourage you to listen to it. But elevation within the federal government doesn’t have that kind of upbeat feeling.
What would typically happen to prompt elevation is that the staff at, say, the Department of Treasury and, hypothetically, the OIRA staff and the Council of Economic Advisors would have some disagreement that they couldn’t work out. An assistant secretary of the Department of Treasury would call me and say, “We’re stuck. Help.” Then, typically, my number two would call a meeting with all the relevant people to talk through the substance and to try to sort it out.
I learned something about government and human nature through this process because the person who was my number two for two years—Michael Fitzpatrick, a Washington lawyer—is a genius at sorting through complex disagreements. He was (and is) a master. He was so good at figuring out things, such as, “Okay, what are you concerned about? Is there a way of meeting that concern in a way that doesn’t disrupt the goals of the person who’s issuing the rule?” He just had a kind of very precise sense for figuring it out in a way that wasn’t a compromise, really—I don’t like the idea of compromise because you’re serving the American public, not the combatants—but in a way that would preserve the best arguments of the competing views and make sure they were reflected in the rule. He was quite great at that.
Sometimes it wouldn’t work at his level, and it would be elevated further. What that meant in the vast majority of cases is that I and either the deputy secretary, the number two within the relevant agencies, or in some cases the cabinet head, would have to talk. Usually people did not exactly love those meetings: people are really busy, and to try to sort out a complex disagreement isn’t always a joy. I would work with them to work it out. Going through the list in my head of the deputies with whom I worked on these meetings: Bob Perciasepe, who became the acting EPA Administrator, an agency where he was number two for a long time; Bill Corr, number two at the Department of Health and Human Services; I worked a lot with Ray LaHood, the Secretary of Transportation, and with Lisa Jackson at EPA. All of these people are phenomenal. When you talk to one of them—take Bob Perciasepe—he’s going to talk about something with complete understanding of all the details, he’ll say, “The reason we have to do it this way is because of what the law requires or it is environmentally terrific and the science supports it.” And then someone else who disagrees might take another view. Then we’d all talk it through in a way that would produce resolution.
And what was remarkable is the unfailingly substantive quality of these dialogues. I can make that clearest in the only well-known case where President Obama actually intervened in a very hard regulatory dilemma. EPA proposed a rule with respect to ozone. The EPA Administrator felt that the Bush Administration’s ozone rule was not justified by the science, and she proposed to replace it in 2011 with a final rule. And the President believed that EPA should not finalize the rule for reasons that he directed me to spell out in a return letter to her.
There are a couple things to say about this situation. One is that it was widely said that this was a political judgment and that it was connected with electoral considerations. Really, nothing could be further from the truth. On both the President’s part and the EPA’s part it was completely substantive. It was entirely based on substantive questions about what was the right policy for the country.
In fact—and this was reported as kind of scandalous, but I think it’s the opposite—there was one time there was a political argument made, and it was by an outside group. Because the ozone issue was so contested, so salient, and such a big economic deal in all respects, a lot of people were interested. Bill Daley, then the Chief of Staff, went to a couple of meetings, and there was one such meeting with environmental groups in which they made a lot of useful points, but one of their points was that they had poll figures that suggested that the American people, as a political matter, favored this rule. Bill Daley said something like “I don’t care about polls.” And that’s completely true; he just wanted to know the merits. He didn’t care about polls. It wasn’t a scandalous moment. If the industry group had said that it had polls showing Americans don’t want this kind of rule, he would have said exactly the same thing. He just wanted to know the merits.
This post is the third of a five-part series drawing on Prof. Sunstein’s keynote address at the Penn Program on Regulation’s annual regulation dinner at the University of Pennsylvania Law School. Professor Sunstein’s lecture drew on an article that he subsequently published in the
Harvard Law Review. His latest book,
Simpler: The Future of Government, provides additional discussion of Sunstein’s accomplishments as OIRA Administrator.