Competing Narratives on OIRA Review of Tax Regulations

23 Pages Posted: 12 Apr 2024 Last revised: 1 May 2024

See all articles by Kristin E. Hickman

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Bridget C.E. Dooling

The Ohio State University

Date Written: April 7, 2024

Abstract

In a major retreat for presidential administration, the Biden Administration pulled the plug—at least for now—on Office of Information and Regulatory Affairs (OIRA) review of tax regulations. The interagency memorandum of agreement (the 2023 MOA) ended the OIRA-facilitated interagency review process and compliance with Executive Order (EO) 12,866 for tax regulatory actions. Contrary to some assertions, the 2023 MOA goes further than any of its predecessor agreements by exempting not merely some or most but rather all tax regulatory actions from OIRA review. The move also ended a short-lived effort, memorialized in a 2018 memorandum (the 2018 MOA), that required OIRA review more often in the tax context than had been the case in the past.

Several justifications have been offered in support of the 2023 MOA and the retreat from OIRA review and EO 12,866 in the tax context. These justifications inhabit two dimensions—one empirical, which we are pursuing in a separate study; the other more normative, reflecting disagreements about priorities and values such as specialized expertise and efficiency versus accountability and transparency. Some of the normative justifications merely echo more universal objections to OIRA review, while others are more particularly grounded in perceptions of tax exceptionalism. In this essay, we engage these normative considerations by interrogating the primary justifications offered for the 2023 MOA’s wholesale rejection of OIRA review for tax regulatory actions. The implications of this analysis stretch beyond the tax content to questions of OIRA review of all agencies as well as the independent regulators.

Keywords: OIRA, Executive Order 12866, cost-benefit analysis, tax exceptionalism, rulemaking

JEL Classification: K23, K34

Suggested Citation

Hickman, Kristin E. and Dooling, Bridget C.E., Competing Narratives on OIRA Review of Tax Regulations (April 7, 2024). Ohio State Legal Studies Research Paper No. 838, 19 Journal of Law, Economics and Policy 272 (2024), Minnesota Legal Studies Research Paper No. 24-09, Available at SSRN: https://ssrn.com/abstract=4787147

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

Bridget C.E. Dooling

The Ohio State University ( email )

Columbus, OH
United States

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