Given both the encyclopedic treatment of the relevant subject matter by the authors and the very significant role accorded by Professor Mashaw to executive branch employees in the management of the administrative state it is surprising that a score of leading academicians who write on the Professor's pursuits do not highlight the activities of an agency which is an influential participant in the generation of the very norms advocated by Professor Mashaw. More specifically Professor Mashaw's historical emphasis on agency operations are exemplified to no greater degree than by the agency-centric organization, OIRA (OMB), and therefore one is perplexed in observing that each were mentioned only five times in nearly six hundred pages of text. As is the case with elections, textbooks matter!
Another hesitancy to recognize OIRA might be explained in this post.
On a related matter which is outside the jurisdiction of the text under review, the aforementioned omission to highlight the operations of OIRA also illuminates and contributes to the historical paradox associated with academy support of the judicial review of agency actions but at the same time opposing judicial review of the Data Quality Act(DQA) which vests an executive branch agency, OIRA, with the ultimate decision-making authority on Requests for Correction made pursuant to the statute; a phenomenon which in the opinion of this writer is in sync with Professor Mashaw's emphasis on "internal" agency operations.
Unfortunately the historical distaste for judicial review of the DQA continues to guide the actions of noteworthy NGO's with equally noteworthy causes who are nonetheless hesitant to seek judicial review of agency denials of Requests for Correction under the Data [aka Information] Quality Act.
Jim Tozzi served as a regulatory official in five consecutive presidential administrations starting with Lyndon Johnson and ending with Ronald Reagan. He is presently the head of the Center for Regulatory Effectiveness. This post originally appeared here.
Fully understanding and appreciating where Jim comes from, I can't agree with his editorial. OIRA in fact is strongly present in ad law teaching these days. Like Congress and the courts, however, OIRA (aka Donald Trump these days) is external to the agencies whose generation of INTERNAL administrative law Jerry helped us see as so essential to the rule of law. There are those of us who worry that the often covert and political nature of OIRA's influence undercuts, rather than strengthens, the rule of law.