Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation

Abstract

Over the last several decades, presidents of both parties have sought to control the rulemaking power of agencies by entrenching a system of centralized White House review of agency rules conducted by the Office of Information and Regulatory Affairs (“OIRA”). While OIRA review has important and valuable functions, it also provides a vehicle for increasing the role of political considerations in the rulemaking process as well as the vast power of special interests. This Article explores two novel means by which courts and litigants, without waiting for congressional or executive action, might deploy administrative law’s traditional tool for limiting the influence of politics — agencies’ duty of reasoned explanation — to shed needed sunlight on centralized review of rulemaking. More specifically, interested persons should be able to use petitions for rulemaking to require agencies to give prompt, technocratic, public-regarding explanations for delays caused by centralized review. Also, agencies should be required to give reasoned explanations for policy changes they make due to centralized review.