When Congress has passed laws to protect Americans from various hazards – the Clean Air Act, the Occupational Safety and Health Act, the Consumer Product Safety Act, for example – it has inevitably charged (sometimes created) a federal agency with the task of writing regulations and enforcing the law.
In 1980, Ronald Reagan was elected President on an agenda that included generalized opposition to “intrusive” regulations – a campaign platform plank that translated into a no-holds barred effort to cut back on health and safety regulations. A key weapon in that fight was the White Office of Management and Budget (OMB), and its Office of Information and Regulatory Affairs (OIRA). By instructing agencies to clear drafts of regulations through OIRA, Presidents have made the agency and its chief, the so-called “Regulatory Czar,” a virtual choke point for federal regulation. Particularly during the Bush II years, OIRA went far beyond its expertise, second-guessing scientific and technical decisions of agencies in order to bend regulations to the White House’s political or ideological agenda.
Very early on, the Obama Administration announced its intention to develop a new approach, one that was to be embodied in a future executive order on the regulatory process. But by the end of President Obama's second year in office, no such new executive order had been issued, effectively leaving a process established during the Clinton administration in place. Meanwhile, OIRA under Cass Sunstein has continued to serve as a conduit for industry attacks on environmental, health and safety regulations, often substituting the scientific judgment of its inexpert staff for that of the agencies themselves, and it has persisted in imposing a deeply flawed cost-benefit analysis, all while slowing down an already glacial regulatory process. In short, the Obama Administration's OIRA has functioned very much like the Bush OIRA, serving largely as as an impediment to vigorous regulation.
CPR Member Scholars have weighed in repeatedly on the issue of OMB's role in the regulatory process, including at the time of Cass Sunstein's nomination to direct OIRA, repeatedly over the course of his tenure as specific developments warranted, and with a first-year report card on the Obama Administration's regulatory progress. (Sunstein's OIRA earned a C-, the lowest grade on the report card.) Another particular focus of the Member Scholars' work has been the role of cost-benefit analysis in regulatory analysis, which has been used over the years as a device to water down or block much needed regulations. That work includes: