President Biden has made regulation a priority during his first year in office. On Day One, he carried through on campaign promises and signed several executive orders, memorandums and directives charging agencies to reverse much of his predecessor’s actions and to “modernize” regulatory review. Since then, he has also aggressively pursued new regulatory priorities, including those related to racial equity, climate change, employment, and the pandemic.
But as he approaches his first anniversary in office, he has neglected an important element that is critical to his success in this regard—he has not appointed someone whose mission is to oversee his ambitious regulatory agenda.
There is a little-known (outside of Washington) office agency in the Office of Management and Budget headed by an administrator who the president appoints, and the Senate confirms. The administrator of the Office of Information and Regulatory Affairs (OIRA) is charged with overseeing and coordinating the president’s regulatory program. As the head of the 50-person staff that reviews all significant regulations before executive branch agencies can propose or finalize them, the administrator works to ensure that regulatory benefits justify their costs and are consistent with the president’s priorities. As President Obama observed, OIRA provides “a dispassionate and analytical ‘second opinion’ on agency actions.” The administrator also works closely with the White House and agency heads to coordinate policies across the government, minimizes conflicts and duplication among agencies, and represents the administration on regulatory and information policy matters before Congress and international regulatory organizations.
While the OIRA administrator is never in the first tranche of people presidents try to get confirmed, the past four presidents all sent their nominees to the Senate within a few months of taking the oath of office. Even Trump, notorious for the slow pace with which he filled top appointments, had announced his nominee by May.
One reason for Biden’s delay may be the lack of a confirmed OMB director to whom the OIRA administrator reports. In November, he nominated Shalanda Young to that post. She has been serving as deputy director and acting OMB director for months and is widely expected to be confirmed with bipartisan support (the Senate confirmed her as deputy with a 63-37 vote).
With Young in place, the president should move expeditiously to fill this important regulatory post. The value of an institution like OIRA lies in its cross-cutting perspective and its focus on understanding tradeoffs and consequences, intended and unintended. This institution of regulatory oversight is important but, unsurprisingly, not always appreciated by the agencies being overseen or the special interests that seek to influence regulation.
Without a confirmed OIRA administrator, proposed regulations may fall victim to the various factions within the government. An acting administrator does not—and cannot—effectively manage priorities and resolve competing interests; no “acting” officer has the stature and capacity to be more than an interim caretaker. In the absence of a seasoned administrator, White House political staff may be very engaged, but regulatory decisions will be less transparent and accountable. Legislators concerned with regulatory decisions cannot expect responses from policy officials as they could from an OIRA administrator, who is subject to both formal and informal congressional oversight.
President Biden hit the ground running a year ago with a slate of actions that signaled an ambitious use of the administrative state to implement his policy agenda. For that effort to be effective and efficient, it is imperative that he wait no longer to send his OIRA nominee to the Senate.
Dudley is director of the George Washington University Regulatory Studies Center. Katzen is professor at New York University Law School. They served as OIRA administrators in the George W. Bush and Clinton administrations, respectively.