A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power

55 Pages Posted: 10 Oct 2015

See all articles by Wendy E. Wagner

Wendy E. Wagner

University of Texas at Austin – School of Law

Date Written: October 9, 2015


This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promulgating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both vigorous scientific input and public oversight. They have accomplished this by deploying multiple rounds of public comment on their science-policy choices, soliciting rigorous scientific peer review, inviting dissent, and explaining methods and choices. Yet, at the same time that these expert agencies work to establish more rigorous decision processes grounded in both science and public review, the White House, primarily through its Office of Information and Regulatory Affairs (OIRA), appears to be undermining the agencies’ efforts through its largely nontransparent oversight process. In a number of rule settings, OIRA suggests dozens of intricate changes outside of the agencies’ rigorous deliberative processes that, while presumably intended to advance larger policy preferences, also involve changes to the agencies’ supporting, technical explanations. Even more problematic, most and sometimes all of these changes are made invisibly, often without leaving fingerprints and almost always without providing any supporting explanation or evidence.

While in theory the expert agency and White House review should make a mutually-beneficial team - each bringing important, but differing perspectives to bear on science-intensive rules - in practice the White House’s secretive interventions threaten to undermine the legitimacy of both institutional processes simultaneously. The end result is both a weakened expert agency model and a more institutionally tenuous presidential review. The Essay concludes with a proposal for reformed institutional design.

Keywords: OIRA, regulation, agency expertise, White House review, administrative law, science

JEL Classification: I18

Suggested Citation

Wagner, Wendy E., A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power (October 9, 2015). Columbia Law Review, Vol. 115, 2015, U of Texas Law, Public Law Research Paper No. 633, KBH Energy Center Research Paper No. 2016-1, Available at SSRN: https://ssrn.com/abstract=2671864

Wendy E. Wagner (Contact Author)

University of Texas at Austin – School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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