Agency Self-Insulation Under Presidential Review

83 Pages Posted: 29 Jan 2013 Last revised: 27 Feb 2014

See all articles by Jennifer Nou

Jennifer Nou

University of Chicago - Law School

Date Written: February 23, 2013


Agencies possess enormous regulatory discretion. This discretion allows executive branch agencies in particular to insulate their decisions from presidential review by raising the costs of such review. They can do so, for example, through variations in policymaking form, cost-benefit analysis quality, timing strategies, and institutional coalition-building. This Article seeks to help shift the literature’s focus on court-centered agency behavior to consider instead the role of the President under current executive orders. Specifically, the Article marshals public-choice insights to offer an analytic framework for what it calls agency self-insulation under presidential review, illustrates the phenomenon, and assesses some normative implications. The framework generates several empirically testable hypotheses regarding how presidential transitions and policy shifts will influence agency behavior. It also challenges the doctrinal focus on removal restrictions and highlights instead a more functional understanding of agency independence. Finally, these dynamics suggest a role for courts to help enforce separation of powers principles within the executive branch and also, along with Congress, to facilitate political monitoring by encouraging information from sources external to the presidential review process.

Keywords: executive agencies, agency independence, presidential power, Office of Information and Regulatory Affairs, OIRA, cost-benefit analysis, public choice, positive political theory

JEL Classification: A11, D73, D78, D82, H10, K00, K23, L30

Suggested Citation

Nou, Jennifer, Agency Self-Insulation Under Presidential Review (February 23, 2013). 126 Harvard Law Review 1755 (2013), U of Chicago, Public Law Working Paper No. 414, Available at SSRN:

Jennifer Nou (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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