//  4/17/17  //  Commentary

President Trump has nominated Professor Neomi Rao to serve as Administrator of the Office of Information and Regulatory Affairs (OIRA), often called “the most important office in government you’ve never heard of.” Rao is certainly qualified in the ordinary sense: she is a professor at the Antonin Scalia Law School at George Mason University, worked in the Department of Justice during the Bush Administration, clerked for Justice Thomas, and serves on the Administrative Conference of the United States.

But Rao’s nomination is also interesting because of how it fits into the pattern of Trump nominating people to run agencies who have publicly committed to blowing them up. Rao will not lead an agency that is limited to a single subject matter and that administers a familiar statute, such as the Individuals with Disabilities in Education Act, or the Voting Rights Act. That may make Rao’s position seem more technical, and less important than some of the other nominations. (Maybe that’s why we have yet to see any Senators speak out about the nomination? That, or it’s awkward to try and pronounce “OIRA.”)

But make no mistake: Rao’s nomination fits into the Bannon–Trump war on the administrative state perfectly. In her position as OIRA administrator, Rao will serve as the “regulatory czar” and supervise the work of all agencies—a significant chunk of which she believes to be, by the way, unconstitutional.

A War On The Administrative State

At the Conservative Political Action Conference in February, Steve Bannon declared that the Trump administration had plans for the “deconstruction of the administrative state.” He then made explicit what, by that point, was perfectly clear to every sentient being watching the nomination process: “If you look at the[] Cabinet nominees, they were selected for a reason, and that reason is deconstruction.”

Just consider a few of the administration’s nominees:

  • Scott Pruitt is in charge of the Environmental Protection Agency. Pruitt described himself as a “leading advocate against the EPA’s activist agenda.” He rejects the scientific consensus that human activity contributes to climate change. As Oklahoma Attorney General, Pruitt dissolved the Environmental Protection Unit in the AG’s office. In its place he created a “Federalism Unit” that sued the EPA to block the Clean Power Plan and a clean water rule.
  • Ben Carson is in charge of the Department of Housing and Urban Development—an agency that polices housing discrimination and ensures access to housing. Carson has criticized a Supreme Court decision holding that the anti-discrimination provisions in federal housing law prohibit housing practices that have a racially discriminatory effect. He referred to the decision and statute as a “mandated social-engineering scheme[].” Carson has also publicly opposed other HUD programs, calling them “failed socialism.
  • Then there is everyone’s favorite irony, Jeff Sessions. Sessions, the head of the Department of Justice, was deemed too racist to be a federal judge in the 1980s, in part because he prosecuted voting rights advocates for voter fraud. Finding himself at DOJ once again, Sessions has already made himself quite busy. He has attempted to slow roll and scale back federal investigations into local police departments’ compliance with federal law. He’s also supported immigration raids in state courts, which may deter victims from reporting of crime.

Thus the guiding principle we inferred for nominations in the Trump administration—nominate people to lead an agency who are at least hostile to the agency’s mission, and preferably committed to destroying the agency entirely.

What Is OIRA?

That brings us to OIRA. OIRA “review[s] draft proposed and final regulations.” Put another way—Pruitt, Carson, Betsy Devos, Tom Price, and every other head of an executive agency have to go through OIRA. Which means they will have to go through Rao. OIRA also “develops and oversees the implementation of government-wide policies in the areas of information, policy, and statistical policy.” That is, OIRA does not just respond to proposed rules from agencies; OIRA also establishes what an administration’s priorities will be.

It’s fair to say the literature is divided on whether OIRA review is a good thing—whether OIRA review enhances accountability, promotes good policy outcomes, ensures coordination among the agencies, etc. What’s not really disputed that OIRA review matters in some way, be it good or bad.  Former OIRA administrator Cass Sunstein has described how OIRA is involved in “substantive determinations” about a rule’s scope, and also involved in coordinating divergent views in the administrative state.

OIRA At War With Itself?

Understanding how and why Rao resembles Trump’s other nominees requires a little background on agencies. There are (roughly) two kinds of agencies. There are “executive agencies,” which are headed by essentially the President’s at-will employees, who can be removed for any reason. And there are “independent agencies,” which are headed by individuals who are removable only “for cause” (basically not at all).

OIRA currently only reviews rules that are made by executive agencies. But several recent proposals have urged Presidents to make sure that OIRA also reviews the work of independent agencies. After the election, Rao herself wrote a blog post that apparently endorses the recommendation to “extend[] direct [OIRA] regulatory oversight to independent agencies.”

What that post doesn’t include is another of Rao’s views about independent agencies—that they are unlawful, illegitimate, and unconstitutional.  

The blog post cites one of her articles which makes Rao’s view of independent agencies perfectly clear. In the article, Rao argues that “the ability to remove principal officers is necessary and sufficient for presidential control.” And, she maintains, “all agencies, including the so-called independent agencies, must answer to the President.” In a prior 2011 article, creatively entitled “a modest proposal,” Rao offered a solution to the purported unconstitutionality of independent agencies—abolishing agency independence altogether by making every single independent agency head removable by the President. That is also the position the Trump administration has taken with respect to the Consumer Financial Protection Bureau.

What might that mean? If OIRA reviews the work of independent agencies, will Rao sign off on any rules so long as the agencies are headed by individuals who are not removable at will by the President? Will she approve rules that the President disagrees with substantively? How, in general, might Rao mediate substantive disputes or disagreements between executive agencies and independent ones?

These are important questions, because independent agencies are some of the most prominent in government. The Securities and Exchange Commission, the Federal Reserve, the Consumer Financial Protection Bureau, the Federal Trade Commission, the Nuclear Regulatory Commission, the Federal Communications Commission, the Equal Employment Opportunity Commission—all are currently independent. If Rao has her wish, perhaps all of these agencies will soon be headed by individuals selected by Trump and removable by him, or at least may find themselves unable to regulate in ways with which the President does not agree. (Which is excellent news for commissioner-designate Bill O’Reilly of the Equal Employment Opportunity Commission.)

That’s why, in deciding whether to consent to Rao’s nomination, the Senate must ask about her plans for independent agencies and their role in the administrative state. Precisely because OIRA is so little-known to the public, the confirmation process is the only opportunity to subject Rao to meaningful public scrutiny.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

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10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?