The Hedgehog & the Fox - Am MIT spezialisierte KI-Forschung

The Hedgehog & the Fox
in Administrative Law

Neomi Rao

This essay examines the constitutional muddle of the administrative state with ref-
erence to how agencies operate–it looks at a hedgehog’s problem from the fox’s
Perspektive. Not only does the structure and delegated authority of administrative
agencies often exist in substantial tension with the Constitution, but agencies regu-
larly fail to act in a manner that promotes “constitutional values.” Drawing from
my experience as regulatory czar, I explain that regulatory policy is frequently devel-
oped with little regard for separation of powers, political accountability, due pro-
Prozess, or other values drawn from the Constitution. Proponents of the status quo thus
cannot rely on such values to legitimize the ever-expanding activity of administra-
tive agencies.

“The fox knows many things, but the hedgehog knows one big thing.”1

I saiah Berlin’s famous dichotomy between the hedgehog and the fox posits

a distinction between those who focus on big ideas and universal truths and
those who focus on granular realities. In reading the essays in this volume, Es
struck me that the dichotomy sheds light on the fundamental debate in adminis-
trative law: nämlich, whether the administrative state is constitutional.

Favoring the hedgehog’s approach, I have previously raised arguments against
the constitutionality of the modern administrative state.2 Such arguments have
gained substantial ground in recent years. Scholars have advanced textual, struc-
tural, and historical explanations for how the administrative state exists in sub-
stantial tension with the Constitution, including the expansive delegations of leg-
islative authority to the executive branch, the existence of independent agencies,3
and the combination of lawmaking, Ausführung, and judicial functions in agencies.
In response to the constitutional critiques, some modern defenders of the ad-
ministrative status quo have claimed that it is consistent with “constitutional val-
ues.” They have sought to shift the debate away from the Constitution and toward
the mechanisms and structures of the administrative state they believe can repli-
cate constitutional values and functions.4 Unlike the arguments of the early Pro-
gressives, these claims depend not only on the necessity or desirability of expert

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administration, but also on the insistence that the administrative state reflects
and embodies constitutional values. These arguments ultimately depend on fox-
like claims about how administration works in practice.

My experience as administrator of the Office of Information and Regulatory
Affairs (OIRA)5 provided a unique perspective from which to assess these con-
stitutional debates–the regulatory czar must be both hedgehog and fox. To start
mit, there is a big idea within OIRA’s mission: nämlich, that the president should
control regulatory policy across the dozens of agencies that make up the executive
branch. Such presidential direction promotes unitary execution of the laws, con-
sistent with the president’s power and responsibilities under Article II of the Con-
stitution. Presidential control provides essential democratic accountability for
the many discretionary decisions that make up regulatory policy. A unitary exec-
utive is designed to pursue energetically the goals for which the people elected the
president. That is the hedgehog side of things. But the executive branch must also
do the difficult business of executing the laws; of administering the thousands
of statutes, Vorschriften, and programs run by the federal government. This work
goes on, often quite apart from whatever big ideas one might have about the ad-
ministrative state. In the most practical way, OIRA operationalizes the unitary ex-
ecutive. Overseeing the development of regulations and regulatory policy across
the executive branch, I had the opportunity to see up close how agencies work and
to appreciate the foxy side of administration.

This essay draws from that experience to explain some of the infirmities of the
constitutional values defense of the administrative state. From my supervision of
rulemaking, guidance documents, and other regulatory policy across dozens of
agencies, I explain how OIRA provides an important form of constitutional ac-
countability. But I have also observed that many persistent features of administra-
tion work against democratic accountability, separation of powers, and due pro-
Prozess. I discuss just a few of these problems here.

Erste, regulatory action often advances with little political direction or super-
vision, undermining claims of internal checks and balances and the development
of real expertise. Zweite, widespread waivers and exemptions benefit those with
access to agency decision-makers, similarly threatening rule of law values and dis-
torting agency rulemaking. Endlich, through regulations, guidance, and grant re-
quirements, administrative agencies have made a relatively new foray into cultural
and social areas, trampling decisions previously left to individuals, Familien, and lo-
cal communities. Agencies often accomplish by administrative fiat actions that one
can hardly imagine surviving the democratic give and take of the political process.
From my hedgehog’s perspective, the Constitution is our supreme law, the one
big thing that gives our government its authority and limits. Constitutional values
are only a shadow of the real thing. But even on functionalist terms, the constitu-
tional values described by proponents of the administrative state turn out to be

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150 (3) Summer 2021Neomi Rao

more fancy than fact. The administrative state suffers constitutional infirmities
not only from the hedgehog’s perspective, but also the fox’s.

T he most fundamental debate in administrative law has always concerned

whether and how the administrative state can be reconciled with the
Constitution.

As Justice Robert H. Jackson noted in 1952, federal agencies “have become a ver-
itable fourth branch of the Government, which has deranged our three-branch le-
gal theories much as the concept of a fourth dimension unsettles our three-dimen-
sional thinking.”6 The combination of powers within administrative agencies flies
in the face of the separation of powers and threatens individual liberty, democratic
accountability, and the fundamental protections of due process. Scholars and ju-
rists who look at the original meaning of the Constitution find the administrative
state incompatible with the Constitution’s careful vesting of distinct powers in
branches with distinct features.7 Perhaps most fundamental, the vesting of all legis-
lative power in Congress means that such power cannot be delegated to the execu-
tive or the courts.8 But overly broad delegations of legislative power to administra-
tive agencies allow for the exercise of a kind of lawmaking power by the executive
branch, rather than by Congress. This flies in the face of the nondelegation princi-
Bitte, which provides perhaps the central protection for the republican form of gov-
ernment under a limited Constitution.9 Moreover, the sheer size and reach of the
executive branch makes it difficult for the president to retain control of administra-
tion. The creation of so-called independent agencies places substantial delegated
authority outside the direct control of the president, in contravention of the cre-
ation of a unitary executive and the vesting of all executive power in the president.10
Endlich, the courts must exercise the judicial power to say what the law is, aber die
complexity of regulatory decisions and the lack of a judicially enforced nondelega-
tion principle often results in courts deferring to administrative agencies.11

It may come as a surprise that in their critiques of the administrative state,
present-day originalists read the Constitution in essentially the same way as the
early Progressives. Those Progressives forthrightly acknowledged that the cre-
ation of an expansive administrative state, operating under broad delegations and
combining the powers of lawmaking, enforcement, and adjudication, would be
fundamentally incompatible with the Constitution.12 The Progressives celebrated
this fact: rather than follow outmoded concerns for individual liberty and private
Eigentum, the new agencies would focus on expertise and government control for
the social good. Early proponents of the administrative state understood that the
government they hoped to establish would stand in stark conflict with the text,
Struktur, and purposes of the Constitution.13

Modern proponents of the administrative state break with both originalists
and the early Progressives. Against the background of the expansive modern ad-

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Dädalus, das Journal der American Academy of Arts & SciencesThe Hedgehog & the Fox in Administrative Law

ministrative state, some defenders of the administrative state now emphasize
constitutional values, largely accepting existing judicial interpretations allowing
open-ended delegations and the independence of agencies from political control.
Bracketing arguments about the fundamental unconstitutionality of the admin-
istrative state, they would shift the focus away from the Constitution and to con-
stitutional values.14 They propose that the administrative state is arranged and
structured to reflect constitutional standards and the functional equivalent of
separation of powers.15

This attempt to ground the existing administrative state in constitutional val-
ues has gained in popularity among constitutional and administrative law schol-
ars. Gillian Metzger, one of the primary proponents of this view, hat das argumentiert
“the administrative state is essential for actualizing constitutional separation of
powers today, serving both to constrain executive power and to mitigate the dan-
gers of presidential unilateralism while also enabling effective governance.”16 She
explains that the “bureaucracy, expert and professional personnel, and internal
institutional complexity” of the administrative state make “an accountable, con-
strained, and effective executive branch.”17 These features “carry constitutional
significance, both in satisfying constitutional structural requirements and in en-
suring that broader separation of powers principles retain force in the world of
contemporary governance.”18

Ähnlich, Emily Bremer has suggested that administrative law can further the
separation of powers through 1) the relationships among the three branches in
controlling the administrative state; 2) the relationship between the administra-
tive state and each of the other branches; Und 3) in the separation of functions
within each agency.19 Metzger and Kevin Stack have also emphasized the legiti-
macy promoted by “internal administrative law,” which they identify as the inter-
nal processes, guidelines, policies, management structures, and other procedures
that serve as effective constraints on agency power.20 They see internal adminis-
trative law as playing a “critical role in ensuring the legitimacy and accountabil-
ity of the administrative state.”21 These are just some of the variants of a general
project of defending the functional constitutionality of the administrative state.22
Critics of the administrative state point primarily to law: the text, Struktur,
and history of the Constitution. Certain arrangements are lawful or unlawful. Von
Kontrast, the broad claim that administration fits within a reconstructed range of
constitutional values depends in large measure on how administration actually
funktioniert. Does the expert bureaucracy provide accountability? Do the structural ar-
rangements of administrative agencies provide checks and balances in a manner
that mirrors the Constitution’s separation of powers?

The modern defenders of administration are foxes, relying not on the Consti-
Unterricht, but on assertions about how particular agency arrangements can reflect
and promote constitutional values. This view rests on an explicit empirical claim:

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150 (3) Summer 2021Neomi Rao

the administrative state is “not just beneficial in a good government sense” but
also “satisf[ies] constitutional structural requirements and . . . ensur[es] Das
broader separation of powers principles retain force in the world of contemporary
governance.”23 For instance, Metzger asserts that the administrative state “yields
important constitutional benefits” and that it “performs essential constitution-
al functions in supervising, constraining, and effectuating executive power.”24
Metzger and Stack postulate that at the “conceptual level,” “internal structures”
imposed by insulating agencies from presidential control can “implement basic
commitments to legality and political accountability.”25 These arguments invoke
the Constitution, and so have a formalist patina, but they are in fact functionalist
claims that turn on how administrative law works in the real world. The consti-
tutional values defense relies on a series of factual assertions that administrative
agencies as presently structured can provide the type of accountability and con-
straint consistent with constitutional values.

Critically, proponents of the administrative status quo do not claim it is consis-
tent with the Constitution, but rather maintain that administrative agencies none-
theless serve values reflected in the Constitution. I should note that I am not here
addressing the difficult question of what “values” are reflected in the Constitution.
The Constitution is not a hortatory document: there is no “accountability” clause
or “legitimacy” clause or “separation of powers” clause. The Constitution reflects
essential principles for our constitutional republic; Jedoch, it implements those
principles through the creation of branches with particular features and the careful
vesting of government powers in those branches. The administrative state reassigns
and blends those powers in countless ways, which naturally raises the question of
how constitutional values can be served outside of the Constitution’s requirements.
That question lies outside the scope of this essay and in the discussion that follows
I simply take the constitutional values asserted by proponents on their own terms.

F rom my experience as administrator of OIRA, overseeing the regulatory ac-

tivity of agencies across the executive branch, I have found little evidence
to support the claims that constitutional values are furthered in adminis-
trative structure or practice. Tatsächlich, many features of modern administration sys-
tematically subvert political accountability, separation of powers, expertise, Und
due process.

The new defenders of the administrative state make arguments that sound
in constitutional theory, but they turn inexorably on facts about “constitution-
al benefits” and “constitutional functions.” From this perspective, constitutional
law is not treated as a binding and knowable constraint, and so the validity of the
constitutional values defense depends on whether administrative agencies in fact
possess the claimed properties.26 The theory depends on empirical realities, Aber
proponents are long on abstractions and short on details. Supporting the claim

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Dädalus, das Journal der American Academy of Arts & SciencesThe Hedgehog & the Fox in Administrative Law

that the administrative state reflects constitutional values requires more than
conceptual generalizations.

While I can hardly claim a comprehensive study of the operation of admin-
istration in these pages, I share some fox-like observations about the regulatory
process and whether and how it reflects constitutional values, as broadly defined
by proponents of this view. I start by explaining how OIRA provides one of the
most effective mechanisms for promoting constitutional values in administration
by ensuring presidential and White House control over regulatory policy. Es kann-
not cure all the pathologies of administration, but OIRA review can make regula-
tory policy more constitutional. I also highlight some examples of the nitty-gritty
workings of regulatory practice, explaining some persistent, and sometimes over-
sah, features of administration that run headlong into values of democratic
accountability, separation of powers, and expertise.

G iven the ever-expanding reach of regulatory policy, centralized review

of significant regulations at OIRA provides an essential form of account-
ability, rationality, and coordination. For over forty years, the office has
promoted fundamental principles of presidential control over administration and
thereby democratic accountability for regulatory decisions. OIRA also advances
other important principles of good government, such as public participation, co-
ordination, and due process. In a variety of ways, the process of centralized regu-
latory review serves many of the constitutional values identified by defenders of
the administrative state.

Because OIRA is often known as the most important office no one has ever
heard of, I will briefly explain how it works.27 OIRA originated with the Paperwork
Reduction Act, which President Carter signed into law in 1980. President Reagan
then set forth more detailed parameters for OIRA’s regulatory review process in
Executive Order (E.O.) 12291.28 Im Wesentlichen, OIRA coordinates and directs regula-
tory policy by reviewing economically and politically significant regulations from
across the executive branch. The review process includes career experts at OIRA
carefully reviewing the proposed regulation: its justifications, legal authority, Und
cost-benefit analysis. Just as important, the review process shares the proposed
regulation with other affected agencies and White House offices, einschließlich der
Counsel’s Office, Domestic Policy Council, National Economic Council, and myr-
iad other presidential advisors as appropriate. This centralized process allows po-
litical and career officials from across the executive branch and within the White
House to weigh in on significant regulations from their different perspectives.
Conflicts and differences of opinion are generally resolved by OIRA and, if neces-
sary, with a meeting of agency heads and ultimately the president.

The fundamental principles guiding OIRA review have long been expressed in
President Clinton’s E.O. 12866, which built on President Reagan’s original exec-

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150 (3) Summer 2021Neomi Rao

utive order. With unusual and thoroughgoing bipartisan support, E.O. 12866 hat
become foundational to the regulatory process. The Executive Order starts with
a “regulatory philosophy” and articulates twelve regulatory principles.29 These
ideas have guided regulatory review across both Democratic and Republican ad-
ministrations. They are nonpartisan principles for regulation and apply both to
deregulatory and regulatory actions. E.O. 12866 is truly a constitutive document
in that it does not speak to how much regulatory activity or what type of regula-
tion an administration will pursue; stattdessen, it sets forth a philosophy and basic
principles of rationality, expertise, and public welfare. It creates mechanisms to
implement these principles and promote these values.

Scholars who have very different perspectives on administrative law have ad-
vocated leaving E.O. 12866 in place, and for good reason.30 Rooting White House
review in this foundational document gives it a continuity and weight irrespective
of the regulatory direction of an administration. Presidents invariably have their
unique guiding principles for regulatory policy, but they have maintained E.O.
12866 and its fundamental principles of regulatory review.31 President Trump,
Zum Beispiel, set out to eliminate burdensome and ineffective regulations, with a
focus on freeing individuals, Familien, and companies from unnecessary govern-
ment control. It was in large measure a kind of populist deregulatory agenda, fo-
cused on promoting economic, sozial, and religious liberty. The goal was to make
administration more constitutional and, at the same time, more effective. Er
maintained E.O. 12866 but issued a series of additional executive orders, inkl-
ing the creation of a regulatory budget and the requirement of eliminating two
regulations for each new one.32

Soon after taking office, President Biden repealed some of Trump’s execu-
tive orders, but also “reaffirm[Hrsg] the basic principles” of E.O. 12866 and called
for “modernizing regulatory review” based on the values of “social welfare, ra-
cial justice, environmental stewardship, human dignity, Eigenkapital, and the interests
of future generations.”33 As an institution, OIRA avoids conflicts about the sub-
stance of regulatory policy, instead focusing on good regulatory practices that can
improve decision-making, reduce arbitrariness, and ultimately promote better
outcomes for the American people. Presidents with very different regulatory ap-
proaches have remained committed to OIRA and its regulatory review function.
OIRA’s process of centralized regulatory review promotes a number of consti-
tutional principles. First and foremost, it operationalizes the unitary executive.
The Constitution vests all executive power in the president, which means that the
president must be able to control and direct execution of the laws.34 Such control
involves superintending administration: the president serves not only as the com-
mander in chief, but as the administrator in chief.35 Although disagreement con-
tinues over the extent of such control, the very idea of “presidential administra-
tion” has widespread purchase.36 In a vast administrative state, the president can-

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Dädalus, das Journal der American Academy of Arts & SciencesThe Hedgehog & the Fox in Administrative Law

not possibly track even major regulatory initiatives. OIRA ensures that important
policies are reviewed by senior White House officials who are closest to the pres-
ident and his policy agenda.37 This provides essential democratic accountability
because regulations will follow the election, particularly with respect to discre-
tionary policy choices.

Zweite, OIRA review provides internal checks on regulatory policy. It creates
a mechanism for different White House offices and agencies to review regulato-
ry policies, providing a wider base of participation, expertise, and judgment. A
regulatory problem will be vetted from a variety of different perspectives, daher
checking and balancing the particular and narrow interests of a single agency and
improving the legitimacy of the ultimate regulatory decision.38

Dritte, OIRA reduces the arbitrariness of regulatory decisions. At the outset,
OIRA makes agencies answer the question of why a particular regulatory action is
necessary and how it fits into the existing regulatory landscape: what is the prob-
lem to be solved and, if regulation is not required by a statute, is it a problem sus-
ceptible to a regulatory solution? Agencies must also demonstrate that their pol-
icy produces net benefits for the American people: nämlich, that the benefits of
the regulation outweigh the costs. While debates will always exist about which
costs and benefits should count, it is difficult to justify a regulation that imposes
greater costs than benefits on society.39 Because OIRA passes a proposed regula-
tion through other agencies and White House offices, the process can be used to
avoid duplication or to resolve conflicts, such as when agencies adopt different
standards to deal with the same problem.

The primary limitation on OIRA review is its reach. Notably exempt from the
OIRA review process are the regulatory actions of the historically independent
agencies, despite the long-standing understanding that such review would be
constitutional.40 In addition, OIRA review extends to economically and political-
ly significant regulatory actions, which includes only a subset of all regulatory ac-
tivity; Jedoch, OIRA determines which regulations are significant, and so could
review more regulations with additional resources.

OIRA review provides a powerful mechanism for implementing political con-
trol over the bureaucracy. In der Praxis, OIRA and the process of regulatory review
it oversees is one of the most effective institutional mechanisms to ensure consti-
tutional administration.

T he administrative state extends well beyond the White House and the

centralized regulatory review process at OIRA. Drawing from my expe-
rience overseeing the regulatory process, I explain a few specific ways in
which the development and substance of regulatory policy undermines the con-
stitutional values of separation of powers, democratic accountability, legitimacy,
and nonarbitrariness.41

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150 (3) Summer 2021Neomi Rao

Initiation myopia: regulatory policy without political supervision. While an ongoing de-
bate continues about whether and with what specificity Congress may delegate au-
thority to agencies, expansive and numerous delegations have a consequence that
is overlooked: nämlich, that regulations are often initiated at a very low level of gov-
Ernährung. The conventional view assumes that regulatory policy originates with an
agency head or senior official, or at times with a White House directive, und das
therefore the president asserts political control, at least indirectly, over delegated
authority. Yet a sea of regulatory activity occurs outside of such accountability struc-
tures. Regulations, guidance documents, and policy statements sometimes find
their origination and completion with a single government employee, despite the
fact that Congress in most instances delegates authority to the heads of agencies.42
Regulatory actions can be radically decentralized, not only away from presidential
Kontrolle, but without control or supervision by any accountable political official.

Faced with a significant volume of regulatory responsibility, agency heads
sometimes subdelegate their statutory authority, with varying degrees of residual
oversight.43 Agency staff can thus seize the opportunity to identify a problem and
write up an advanced notice of proposed rulemaking, then a notice of proposed
rulemaking, and ultimately a final rule. Depending on the agency and its organi-
zation, and the importance of the regulation, such activity might be reviewed by
senior officials; but once the regulatory ball is rolling it is very difficult to change
Richtung, much less stop it altogether.

The problem expands when we take into account subregulatory activity, solch
as guidance documents and policy statements. As OIRA administrator, I asked
agencies to review their guidance documents, which involved identifying them,
eliminating outdated or conflicting guidance, and making the documents pub-
licly accessible.44 In many instances, this proved to be an overwhelming task.
We found instances of extant guidance documents that existed nowhere but the
drawer of a single employee. Agencies such as Health and Human Services frank-
ly acknowledged that it would be impossible to identify and catalog all guidance
documents. While the government binds the public with regulations and then in-
terprets those regulations through guidance documents, some agencies could not
even identify, much less make public and available on a website, all of their guid-
ance documents. And although guidance documents are not formally binding, Die
reality is that guidance may have coercive power, not dissimilar from a statute or
regulation. Agencies have significant enforcement powers, as well as control over
billions of dollars of grant money, and so regulated entities frequently attempt to
take shelter in guidance.45

With significant opportunities for regulatory action, a single bureaucrat can
at times exercise an authority that exceeds that of a member of Congress. Con-
sider that hundreds of bills are proposed each year by individual representatives
and senators, or small groups of lawmakers. Most of these, irrespective of their

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merits, get not so much as a committee hearing, much less a vote. The agency em-
ployee, Jedoch, may not only initiate but complete a regulation that affects the
rights and obligations of private parties, or pen a guidance document that influ-
ences how those rights and obligations are understood and enforced.

Some agencies have a greater degree of centralized review of regulations and,
Natürlich, economically and politically significant actions go through OIRA’s cen-
tralized regulatory review process, which helps “to rein in bureaucratic freelanc-
ing.”46 Such review, Jedoch, reaches only a small fraction of regulatory activ-
ity.47 Meaningful burdens can be imposed by regulations that do not reach the
threshold for OIRA review or even consideration by an agency head or other po-
litical official.

The practical reality of how regulatory discretion and power are exercised un-
dercuts the claim that administration reflects constitutional accountability. Der
Constitution creates a particular type of accountability that depends on direction
and supervision by politically accountable actors. In agencies, Jedoch, many de-
cisions are made without such direction and supervision. Initiation of policy by
lone, politically unaccountable employees fractures the unitary structure of exe-
cution of the laws: a single official might not know what is happening elsewhere
in the agency (much less in other agencies) and is less likely to be aware of con-
flicting regulations or policies. It is unrealistic to assume that a person trained in a
narrow area, and without involvement in her agency’s broader strategic decision-
Herstellung, would be able to see the big picture and whether a regulation is necessary
or effective. In the absence of political oversight and direction, agency staff may,
through inadvertence or design, undermine the policies of the president, the dem-
ocratically elected head of the executive branch.

Darüber hinaus, fractured decision-making has only a tenuous claim to “expertise.”
True regulatory expertise requires not just the specialized or granular knowledge
that a few officials may possess, but also a broader understanding of the existing
regulatory landscape, legal requirements, and economic and social needs.48 Every
regulatory choice involves a series of trade-offs between various public interests,
policy goals, and costs. One could hardly expect such expertise to exist in a few
government officials who are unaware of the wider regulatory picture. Decisions
that seem rational in isolation may in fact be unnecessary, duplicative, or arbitrary
when considered in light of additional information.

Regulatory myopia is magnified when decision-making is pushed to lower lev-
els of government. Progressives sometimes point to professional norms of the bu-
reaucracy as providing important constraints in addition to expertise, and I was
fortunate at OIRA to work with an exceptionally talented and professional career
Personal. dennoch, the incorporation of professional norms varies across agencies
and also from individual to individual and so cannot adequately or consistently
stand in for expertise and accountability.

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Regulatory authority is often exercised in dispersed silos, a fact that challenges
the claims that internal or functional separation of powers operates to check and
balance administration. Administrative structures fail consistently to ensure the
necessary political accountability is brought to bear on the wide range of regula-
tory decisions made by career staff.

The pernicious and pervasive problem of regulatory carve-outs. In order to avoid regu-
latory burdens, individuals, Firmen, and members of Congress acting on their
behalf frequently seek exemptions. The process of creating and granting regula-
tory exemptions undermines the accountability, legitimacy, and expertise claims
for administration.

As administrative activity expands, so too does the use of exemptions.49 Ex-
emptions, like regulations, are often secured through rent-seeking and tend to
benefit those with the greatest ability to sway agency officials. Getting out from
under onerous and expensive regulations can mean big business and is thus pur-
sued by special interest groups as well as members of Congress representing in-
dustries within their districts and states. Regulatory exemptions and waivers
are an insider’s game, often turning on access and influence and providing little
visibility and accountability. Targeted exemptions thus tend to benefit the well-
heeled and connected. The disparate availability of exemptions runs against our
egalitarian and democratic values, which affirm that no man (or company or con-
gressman) should be above the law.

Exemptions can also distort incentives, resulting in less beneficial regulation
Und, in manchen Fällen, unnecessary and overly burdensome regulation.50 While some
might cheer poking holes in an otherwise onerous regulatory regime, exemptions
provide short-term benefits to a few well-connected groups, which in turn only
make it more likely that onerous regulations will be placed on other parties. Wenn die
primary opponents to a regulation secure an exemption before the regulation is
enacted, they may in fact support the imposition of regulatory burdens on their
competitors and barriers to entry for future competitors. The granting of exemp-
tions eliminates the constituency most likely to fight against or to moderate a
regulation, which in turn may result in less socially beneficial regulatory policy.
Darüber hinaus, regulators often have little to lose by granting exemptions: they can be
a relatively low-cost way of buying off vocal opposition and allowing the agency
to move forward with an otherwise controversial policy.

Exemptions and nonenforcement practices vary across agencies and come in
different shapes and sizes, more than I can canvass in this essay.51 Some exemp-
tions may be socially beneficial, such as those that tailor regulations to generate
the greatest benefits at the lowest costs by, Zum Beispiel, exempting small enti-
ties.52 Other exemptions may seek to protect important constitutional liberties,
such as freedom of religious exercise.53 Nonetheless, exemption practices often
reflect some of the worst problems with administration. Zum Beispiel, the avail-

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ability of exemptions and who benefits from them is often entirely hidden from
the public and therefore from political accountability. Darüber hinaus, because exemp-
tions frequently turn on the political influence of a favored member of Congress,
company, or individual, the granting of exemptions is often unconnected with ex-
pertise or good regulatory outcomes.

Agencies often have statutory authority for waivers.54 Although the explicit
grant from Congress may increase the legal legitimacy of exemptions, Es tut nicht
necessarily improve regulatory outcomes. As Mila Sohoni has explained, waivers
and delay can undermine the “administrative constitution.” She identifies prob-
lems in a number of areas, including immigration policy and the Deferred Ac-
tion for Childhood Arrivals waiver program, health care and Affordable Care Act
waivers, and education and the No Child Left Behind waiver program.55 Anoth-
er example is the Dodd-Frank Wall Street Reform and Consumer Protection Act,
which creates substantial discretion within several financial regulatory agencies,
expanding waiver authority.56 Richard Epstein has argued that agency discretion
“can end up blurring the line between coercive power and waiver power in a way
that grants these agencies an immense amount of informal authority–authority
that extends well beyond the powers they are granted by Congress.” He identifies
the Food and Drug Administration’s process for new drug approval as a prime ex-
ample.57 Others have focused on renewable fuel standard credits, which involve
ongoing, intense rent-seeking, and are the subject of litigation in the courts of ap-
peals and the Supreme Court.58

Darüber hinaus, waivers are distinct from the executive branch’s traditional non-
enforcement power. When the government declines to enforce the law, the law re-
mains the same and could be enforced if circumstances change. Andererseits,
waivers purport to change the law, granting a specific exemption or reprieve from
certain legal requirements. This distinction may particularly matter in regulatory
Bereiche, such as environmental law, where Congress has authorized citizen suit en-
forcement. Agencies sometimes argue against judicial review of waivers, maintain-
ing that those who are subject to regulatory requirements lack standing to chal-
lenge a waiver given to a different person.59

The process of regulatory exemptions highlights another institutional and
constitutional difficulty. The executive power includes a discretionary authority
not to prosecute or not to enforce administrative requirements. Congress has set
general laws through the legislative process and the executive branch can exer-
cise a discretionary nonenforcement power, consistent with a system of checks
and balances. In the regulatory space, Jedoch, the agencies both write the “law”
through regulation and then determine who is exempt from it. Administrative
rulemaking thus blends general lawmaking power with the execution of those
laws.60 The collapsing of these functions further undercuts the claims that agen-
cies effectively embody constitutional values and internal separation of powers.

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Social values and administration. While the discussion of initiation myopia and
exemptions focuses on procedural or structural problems with administration,
the substance of regulatory policy increasingly raises constitutional concerns.
Agency regulation on hot-button moral, ethisch, and social issues challenges the
democratic legitimacy of administration. One of the most important constitu-
tional principles is that separation of powers serves individual liberty and pro-
tects against government intrusions on individual rights. The Article I, Abschnitt 7
requirements of bicameralism and presentment make it difficult for Congress to
act on issues about which Americans are divided, and action on such matters is
usually possible only with compromise and a minimalist approach. The adminis-
trative state unravels many of these fundamental protections.

There is a substantial and important literature on the economic impacts of reg-
ulation and how it infringes individual liberty by tangling individuals and busi-
nesses in red tape. There is scant discussion, Jedoch, on how the administrative
state–regulations as well as welfare transfers with conditions–distorts not just
the marketplace, but also family life, Gemeinschaft, and religious practice. Regula-
tory approaches to hot-button cultural issues demonstrate that agencies lack the
restraints incorporated into constitutional checks and balances. We live in a plural-
ist society in which Americans have diverse, and sometimes incommensurate, reli-
gious, cultural, and social values. Divisions among Americans make a uniform fed-
eral approach difficult to enact, and so it is hardly surprising that Congress virtually
never legislates on matters such as abortion, contraception, or affirmative action.
Stattdessen, Congress has delegated substantial authority to agencies, authority that
agencies increasingly use to impose federal mandates that implicate matters of life
and death, religious practice, Hochzeit, and the family. Zum Beispiel, the Equal Em-
ployment Opportunity Commission sought to regulate church hiring decisions,
a regulatory action found unconstitutional by the Supreme Court.61 Whereas the
far-reaching Affordable Care Act was silent on contraception, Health and Human
Services imposed a regulation mandating the provision of contraception by em-
ployers.62 Agencies also use regulatory action and federal funding to condition
whether domestic and foreign entities provide abortion, an issue that whipsaws
from administration to administration. It is difficult to imagine Congress passing
any of these regulations through the ordinary legislative process.

The involvement of agencies on such matters is a relatively new development.
For most of U.S. Geschichte, the federal administrative state had nothing whatsoever
to say about religious and moral questions. The expansion of federal programs,
grants, and transfer programs has provided agencies with numerous levers to im-
pose social policy in a way that takes sides in the culture wars. The Constitution
largely left these issues to local and state governments, but federal agencies in-
creasingly issue sweeping regulations that leave little room for disagreement and
accommodation of different viewpoints and beliefs.

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Many Americans consider such intrusions deeply illegitimate and unconstitu-
tional, and oblivious to differences in religious and community norms. In partic-
ular, Americans with sincerely held religious beliefs increasingly find their views
under siege by administrative agencies. The reality is that the federal bureaucra-
cy largely (though of course not exclusively) reflects a particular class of workers
that is not representative of Americans as a whole. Zum Beispiel, although recent
elections reflect a country fairly divided between Democrats and Republicans,
political donations from agency workers skew overwhelmingly to Democrats.63
Unlike the legislative process, which brings together representatives from around
the country who reflect their communities’ diverse beliefs and mores, Agentur
workers tend to represent a narrower political class centered in Washington, D.C.
Problems of legitimacy and accountability do not run exclusively in one direc-
tion. Presidents pursuing conservative regulatory policy will no doubt frustrate
progressive Americans. Administrations are directed, quite appropriately, by the
president, and on controversial issues, administrations will follow the president’s
policies, though not always with the moderating influence of legislation. The dif-
ficulty of enacting legislation means that presidents will seek to capitalize on their
control over administrative agencies. On disputed matters, about which agencies
often have substantial discretion, internal checks and balances may fail to provide
legitimacy and accountability for those on the losing side of regulatory policy.

Congress rarely legislates on cultural issues because members cannot reach
consensus or compromise on what are often contentious questions. In part, Das
reflects our Constitution at work: when a common federal approach cannot be
reached, individuals are left free to follow their beliefs and work within their com-
munities to resolve problems through state and local political processes. Durch con-
trast, the ever-expanding administrative state is not content to leave such mat-
ters to individuals, Familien, and their local communities. Sweeping regulatory
approaches to cultural issues demonstrate how the administrative state fails to
promote the legitimacy, accountability, and protection for individual liberty at
the heart of our Constitution.

A dministration often falls short of constitutional values because it often

falls short of the Constitution. Restoring Congress as the central law-
making body in our federal government would go a long way to making
administration more constitutional. Delegations to the executive branch have up-
ended our system of government, distorting not just the lawmaking power but
also the executive and judicial powers. Holding that hedgehog’s idea, Jedoch,
will not cure the pathologies of administration, at least not right away. The rela-
tionship between big ideas and more ordinary facts is complex, in administrative
law no less than in political philosophy. Absent a substantial realignment of the
administrative state, important work remains for the fox. As I learned at OIRA,

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150 (3) Summer 2021Neomi Rao

faithful execution of the laws means ensuring agencies stay within their delegated
authority, follow processes that encourage political accountability, and promote
due process in the creation and enforcement of regulatory policy. The exercise of
the judicial power reflects a different institutional balance between hedgehog and
fox, but that is a topic for another day.

author’s note

I appreciate the helpful comments and insights from Jonathan Adler, Anthony
Campau, Judge Douglas Ginsburg, Aaron Nielson, and Daniel Shapiro, and careful
research assistance from Phil Haunschild.

about the author

The Honorable Neomi Rao is a Circuit Judge on the U.S. Court of Appeals for the
District of Columbia Circuit. She served as the Administrator of the Office of Infor
mation and Regulatory Affairs from 2017 Zu 2019.

Endnoten

1 Isaiah Berlin, The Hedgehog and the Fox: An Essay on Tolstoy’s View of History (London: Weid

enfeld & Nicolson, 1953) (quoting a fragment from the Greek poet Archilochus).

2 Sehen, Zum Beispiel, Neomi Rao, “Why Congress Matters: The Collective Congress in the
Structural Constitution,” Florida Law Review 70 (1) (2018): 1; and Neomi Rao, “Removal:
Necessary and Sufficient for Presidential Control,” Alabama Law Review 65 (5) (2014):
1205.

3 Socalled independent agencies are historically understood to be independent of presi
dential control, because the heads of such agencies cannot be removed at will by the
president.

4 Several essays in this volume similarly discuss practical facts of how administration
funktioniert. Some identify further problems with an account of administration serving con
stitutional values. See Mark Tushnet, "Einführung: The Pasts & Futures of the Ad
ministrative State,” Dædalus 150 (3) (Sommer 2021).

5 An office within the Office of Management and Budget, OIRA leads a centralized process
of White House review of significant regulatory actions. As explained more below, Das
process includes careful economic and legal analysis and coordination of regulatory
policy across the executive branch.

6 See FTC v. Ruberoid Co., 343 UNS. 470, 487 (1952) (Robert H. Jackson dissenting).

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7 Sehen, Zum Beispiel, Philip Hamburger, Is Administrative Law Unlawful? (Chicago: Universität
of Chicago Press, 2014). See also John Marini, Unmasking the Administrative State: The Crisis
of American Politics in the Twenty-First Century (New York: Encounter Books, 2019); Dean
Reuter and John Yoo, Hrsg., Liberty’s Nemesis: The Unchecked Expansion of the State (Neu
York: Encounter Books, 2016); and Gary Lawson, “The Rise and Rise of the Adminis
trative State,” Harvard Law Review 107 (6) (1994): 1231.

8 UNS. Constitution, Article I, Abschnitt 1.
9 See Neomi Rao, “Administrative Collusion: How Delegation Diminishes the Collective
Congress,” New York University Law Review 90 (5) (2015): 1463, 1494–1496; Gary Lawson,
“Delegation and Original Meaning,” Virginia Law Review 88 (2) (2002): 327, 335–337;
Department of Transportation v. Association of American Railroads, 575 UNS. 43, 74 (2015) (Clar
ence Thomas, concurring in the judgment, noting that the Constitution and “the writ
ings surrounding it reflect a conviction that the power to make the law and the power
to enforce it must be kept separate, particularly with respect to the regulation of pri
vate conduct”).

10 UNS. Constitution, Article II, Abschnitt 1. See also Rao, “Removal.”
11 See U.S. Constitution, Article III, Abschnitt 1.
12 Zum Beispiel, Frank Goodnow argues that the U.S. Constitution focuses on individu
al rights drawn from natural rights theory and the political philosophy of the eigh
10. Jahrhundert, but that conditions have changed and “we no longer believe as we once
believed that a good social organization can be secured merely through stressing our
rights. The emphasis is being laid more and more on social duties. The efficiency of
the social group is taking on in our eyes a greater importance than it once had.” Frank
Goodnow, “The American Conception of Liberty,” in American Progressivism: A Reader,
Hrsg. Ronald J. Pestritto and William J. Atto (Lanham, Md.: Lexington Books, 2008). Sehen
also Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2 (2)
(1887): 197, 209–210 (noting that administration is “removed from the hurry and strife
of politics; it at most points stands apart even from the debatable ground of constitu
tional study”); and Roscoe Pound, “Justice According to Law,” The Mid-West Quarterly
1 (3) (1914): 223 (explaining that while Americans previously took it as “an axiom that
the people themselves were subject to certain fundamental limitations, running back
of all constitutions and inherent in the very nature of free government,” now “a great
change has gone forward . . . the present generation seems eager to reject the idea of a
fundamental law . . . [Und] is eager to unshackle administration, to take away judicial
review of administrative action”).

13 Sehen, Zum Beispiel, James M. Landis, The Administrative Process (New Haven, Conn.: Yale
Universitätsverlag, 1938), 12 (the government “vests the necessary powers with the ad
ministrative authority it creates, not too greatly concerned with the extent to which
such action does violence to the traditional tripartite theory of governmental organi
zation”). See also Lawson, “The Rise and Rise of the Administrative State,” 1231 (“The
original New Dealers were aware, at least to some degree, that their vision of the na
tional government’s proper role and structure could not be squared with the written
Constitution”).

14 Um sicher zu sein, other scholars have provided originalist defenses of delegations that form the
basis for the modern administrative state. Sehen, Zum Beispiel, Julian Davis Mortenson
and Nicholas Bagley, “Delegation at the Founding,” Columbia Law Review 121 (2) (2021):
277, 282 (surveying historical practice and concluding that “the nondelegation doctrine

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has nothing to do with the Constitution as it was originally understood”); and Nicho
las R. Parrillo, “A Critical Assessment of the Originalist Case Against Administrative
Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the
1790S,” Yale Law Journal 130 (6) (2021): 1288, 1313 (exploring the direct tax of 1798 as “im
portant evidence that the American political nation in the Founding era viewed admin
istrative rulemaking as constitutional, even in the realm of domestic private rights”).
15 Jeremy Kessler and Charles Sabel term this a “progressive synthesis.” See Jeremy Kes
sler and Charles Sabel, “The Uncertain Future of Administrative Law,” Dædalus 150 (3)
(Sommer 2021).

16 Gillian E. Metzger, “1930s Redux: The Administrative State Under Siege,” Harvard Law

Rezension 131 (1) (2017): 1, 7.

17 Ebenda., 72.
18 Ebenda., 78.
19 Emily S. Bremer, “The Unwritten Administrative Constitution,” Florida Law Review 66 (3)

(2014): 1215, 1250–1252.

20 Gillian E. Metzger and Kevin M. Stack, “Internal Administrative Law,” Michigan Law Re-
view 115 (8) (2017): 1239, 1248; and Christopher J. Walker and Rebecca Turnbull, “Op
erationalizing Internal Administrative Law,” Hastings Law Journal 71 (5) (2020): 1225.

21 Metzger and Stack, “Internal Administrative Law,” 1266.
22 See also John A. Rohr, To Run a Constitution (Lawrence: University Press of Kansas, 1986):
171 [describing the new separation of powers as “(1) the combination of powers in ad
ministrative agencies does not violate Publius’s relaxed standard of separation of pow
ers, (2) the higher reaches of the career civil service fulfill the constitutional design of
the framers by performing a balancing function originally assigned to the Senate, Und
(3) the career civil service en masse heals the defect of inadequate representation in the
Constitution”]; and Jessica BulmanPozen, “Administrative States: Beyond Presiden
tial Administration,” Texas Law Review 98 (2) (2019): 265, 271–272.

23 Metzger, “1930s Redux,” 78.
24 Ebenda., 7, 95. See also Aaron L. Nielson, “Confessions of an AntiAdministrativist,” Har-
vard Law Review Forum 131 (1) (2017): 1–2 (acknowledging that “in a world in which del
egation is ubiquitous, sometimes the administrative state itself can serve an important
‘cabining’ role on the exercise of delegated power”).
25 Metzger and Stack, “Internal Administrative Law,” 1306.
26 Several scholars have questioned whether agencies have the properties claimed by the
classical model of administrative law. Sehen, Zum Beispiel, Daniel A. Farber and Anne
Joseph O’Connell, “The Lost World of Administrative Law,” Texas Law Review 92 (5)
(2014): 1137, 1140 [“The actual workings of the administrative state have increasingly
diverged from the assumptions animating the APA and classic judicial decisions that
followed. . . . The mismatch (or legal fictions), im Gegenzug, has consequences for the legiti
macy and efficacy of the federal bureaucracy. . . . We therefore need to rethink current
approaches to bureaucratic operation and oversight if we still want to achieve admin
istrative law’s goals of transparency, rule of law, and reasoned implementation of stat
utory mandates”]; and Mila Sohoni, “The Administrative Constitution in Exile,” Wil-
liam and Mary Law Review 57 (3) (2016): 923, 927 (“The administrative constitution is
widely hailed as a meaningful checkpoint that rationalizes and legitimates consequen

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tial administrative action–and is also dismissed as an outmoded set of rules that no
longer has real purchase on a significant set of such actions”).

27 See also Christopher C. DeMuth and Douglas H. Ginsburg, “White House Review of
Agency Rulemaking,” Harvard Law Review 99 (5) (1986): 1075, 1081 (“Centralized review
of proposed regulations under a cost/benefit standard, by an office that has no program
responsibilities and is accountable only to the president, is an appropriate response to
the failings of regulation. It encourages policy coordination, greater political account
ability, and more balanced regulatory decisions”); and Cass R. Sunstein, “The Office
of Information and Regulatory Affairs: Myths and Realities,” Harvard Law Review 126 (7)
(2013): 1838, 1875 (discussing the role of OIRA as an “information aggregator” allowing
for White House oversight of executive branch rulemaking).

28 “Executive Order 12291 of February 17, 1981: Federal Regulation,” Federal Register 46 (33)

(1981): 13193.

29 The “regulatory philosophy” centers on the idea that agencies should regulate only when
“required by law,” “necessary to interpret the law,” or necessary to address some
“compelling public need.” See “Executive Order 12866 of September 30, 1993: Regu
latory Planning and Review,” Federal Register 58 (190) (1993): Sek. 1(A). Pursuant to this
philosophy, the regulatory principles require an agency to, unter anderem, iden
tify and assess the significance of the problem it seeks to address, assess all costs and
benefits of the proposed regulation as well as regulatory alternatives, consider impacts
on innovation, predictability, and distributive impacts, and “tailor . . . regulations to im
pose the least burden on society.” See ibid., Sek. 1(B)(1-3).

30 Former OIRA administrators from both Republican and Democratic administrations,
while reflecting different philosophies about the role of OIRA, defend the concept
of centralized review of agency regulations. Sehen, Zum Beispiel, Christopher Demuth,
“OIRA at Thirty,” Administrative Law Review 63 (2011): 15, 16 (recounting the “policy con
stancy across Republican and Democratic administrations” that suggests “OIRA pol
icies and procedures have addressed a problem that is in significant respects apoliti
cal”); Sally Katzen, “OIRA at Thirty: Reflections and Recommendations,” Administrative
Law Review 63 (2011): 103, 105 (arguing that E.O. 12866 “put to rest or relegated to the
back burner” “questions about the legitimacy of OIRA review, the integrity of OIRA re
view, and the appropriateness of OIRA review”); and Susan E. Dudley, “Observations
on OIRA’s Thirtieth Anniversary,” Administrative Law Review 63 (2011): 113, 117 (describ
ing E.O. 12866 as foundational and noting that “regardless of a candidate’s perceived
views on regulations, once elected, every president since Richard Nixon has chosen to
require analyses of new regulatory proposals and to authorize an entity within the Ex
ecutive Office of the President to evaluate those analyses”).

31 Executive Order 12866 remains in effect, although presidents have called for its review.
Sehen, Zum Beispiel, “Executive Order 13258 of February 26, 2002: Amending Executive
Order 12866 on Regulatory Planning and Review,” Federal Register 67 (40) (2002): 9385;
“Executive Order 13563 of January 18, 2011: Improving Regulation and Regulatory Re
view,” Federal Register 76 (14) (2011): 3821; “Executive Order 13771 of January 30, 2017:
Reducing Regulation and Controlling Regulatory Costs,” Federal Register 82 (22) (2017):
9339; and “Memorandum of January 20, 2021: Modernizing Regulatory Review,” Feder-
al Register 86 (15) (2021): 7223.

32 See “Executive Order 13771 of January 30, 2017: Reducing Regulation and Controlling
Regulatory Costs,” 9339; and “Executive Order 13777 of February 24, 2017: Enforcing
the Regulatory Reform Agenda,” Federal Register 82 (39) (2017): 12285. See also The Ed

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itorial Board, “The Great Rules Rollback,” The Wall Street Journal, Dezember 25, 2017,
https://www.wsj.com/articles/thegreatrulesrollback1514237372.

33 “Memorandum of January 20, 2021: Modernizing Regulatory Review,” 7223.
34 UNS. Constitution, Article II, Abschnitt 1.
35 See Rao, “Removal,” 1275.
36 Sehen, Zum Beispiel, Elena Kagan, “Presidential Administration,” Harvard Law Review 114
(8) (2001): 2245, 2339–2340 (noting that regulatory review and “central presidential
oversight could identify and then eliminate the inconsistencies and redundancies”
and also promote “more rational setting of administrative priorities”); Steven Croley,
“White House Review of Agency Rulemaking: An Empirical Investigation,” The Univer-
sity of Chicago Law Review 70 (3) (2003): 821, 873–882 (arguing that greater presidential
involvement in rulemaking through OIRA is desirable); and Peter M. Shane, “Politi
cal Accountability in a System of Checks and Balances: The Case of Presidential Re
view of Rulemaking,” Arkansas Law Review 48 (1) (1995): 161, 164 (noting that “regulatory
oversight, if implemented in the spirit that animates the prose of Executive Order No.
12866, promises a significant gain in political accountability”).

37 See “Extending Regulatory Review Under Executive Order 12866 to Independent Regu
latory Agencies,” Opinions of the Office of Legal Counsel 43 __ (Oktober 8, 2019) (“OIRA’s
regulatory review process, which draws on the expertise of the entire government, hat
come to provide an essential mechanism to ensure unity and coherence in execution of
the law”).

38 John McGinnis has suggested that under broad delegations, OIRA serves the same pur
poses as bicameralism by putting “an additional screen between government decrees
and the citizen by filtering out special interest regulations from those in the public in
terest,” and that “the substance of the costbenefit analysis mandated by the regulatory
review order helps screen public interest regulations from those sought by special in
terests–an implicit objective of the original Constitution’s requirements for legislative
enactments.” John O. McGinnis, “Presidential Review as Constitutional Restoration,”
Duke Law Journal 51 (3) (2001): 901, 903–904.

39 See Cass R. Sunstein, “Is CostBenefit Analysis for Everyone?” Administrative Law Review
53 (1) (2001): 299, 301–304 (“The basic idea [behind costbenefit analysis] is that it is
exceedingly difficult to choose the appropriate level of regulation without looking at
both the benefit and cost sides”). See also Business Roundtable v. Security Exchange Commis-
sion, 647 F.3d 1144, 1148–1149 (D.C. Cir. 2011) (vacating a rule when the Securities and
Exchange Commission “failed once again . . . adequately to assess the economic effects
of a new rule”).

40 See “Extending Regulatory Review Under Executive Order 12866,” 5–7 (concluding the
president may direct independent agencies to comply with the OIRA regulatory review
process and discussing the views of the Reagan and Clinton administrations that OIRA
review of independent regulatory agencies would be constitutional).

41 The full exploration of examples is outside the scope of this essay, so I focus on illustra

tive features that are discussed infrequently, wenn überhaupt.

42 Congress usually vests rulemaking authority in constitutional officers, most common
ly the head of an agency, a principal officer who must be appointed by the president
with the advice and consent of the Senate. Expertise might be the guiding light of ad

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ministration, but it must be applied to policies chosen by democratically accountable
officials.

43 Some agencies have sought to reform their procedures, such as the Department of Trans
portation, which issued a regulation establishing practices to improve the accountabil
ity and quality of rulemaking and enforcement. See Department of Transportation and
Office of the Secretary of Transportation, “Administrative Rulemaking, Guidance, Und
Enforcement Procedures,” Code of Federal Regulations (Washington, D.C.: Office of the
Federal Register, 2020), Sek. 5.13(B)(1)(ich) (requiring, with some exceptions, that “all
[Department of Transportation] rulemakings are to be reviewed and cleared by the Of
fice of the Secretary”).

44 Statement of Hon. Neomi Rao, Reviewing the Office of Information and Regulatory Af
fairs: Hearing Before the Subcommittee on Regulatory Affairs and Federal Manage
ment of the Committee on Homeland Security and Governmental Affairs, Senate Hear
ing 115275, 115th Cong., 2nd sess., April 12, 2018 (“As part of our reform efforts, OIRA
encourages and incentivizes agencies to identify guidance that can be repealed, modi
fied, or reissued through a rulemaking. We have also prompted agencies to begin iden
tifying existing guidance documents and to start making such documents more readily
available to the public, such as on agency websites. The identification process can be
a first step to eliminating outdated or unnecessary guidance and streamlining existing
requirements”); and Office of Management and Budget, Executive Office of the Pres
ident, “Guidance Implementing Exec. Order 13891, Titled ‘Promoting the Rule of Law
through Improved Agency Guidance Documents,’” M2002 (Washington, D.C.: Exec
utive Office of the President, 2019).

45 Sehen, Zum Beispiel, UNS. Department of Education, Office for Civil Rights, “Dear Colleague
Letter,” April 4, 2011, http://www2.ed.gov/about/offices/list/ocr/letters/colleague
201104.pdf. See also Jacob Gersen and Jeannie Suk, “The Sex Bureaucracy,” California
Law Review 104 (4) (2016): 881, 908 (explaining that the Office for Civil Rights “threat
ened to terminate federal funding to schools unless they adopted policies and proce
dures that complied” with the Dear Colleague Letter’s requirements).

46 William F. Westen, “The Institutionalization of Regulatory Review: Organizational Stabil
ity and Responsive Competence at OIRA,” Presidential Studies Quarterly 35 (1) (2005): 76, 91.
47 The Unified Agenda of Regulatory and Deregulatory Actions, a list of all regulatory ac
tions planned by agencies, typically includes between three and four thousand regula
tionen, but OIRA annually reviews only about five to seven hundred regulatory actions.
Sehen, Zum Beispiel, Office of Information and Regulatory Affairs, Office of Management
and Budget, Executive Office of the President, “Fall 2020 Unified Agenda of Regula
tory and Deregulatory Actions,” https://www.reginfo.gov/public/do/eAgendaMain
(accessed April 24, 2021) (compiling all regulatory actions planned by each agency).
See also Clyde Wayne Crews Jr., “Trump’s Final 2020 Unified Agenda on Regulatory
Reform, By the Numbers,” Forbes, Dezember 10, 2020, https://www.forbes.com/sites/
waynecrews/2020/12/10/trumpsfinal2020unifiedagendaonregulatoryreform
bythenumbers/?sh=555e4cae11c8; and Office of Information and Regulatory Af
fairs, Office of Management and Budget, Executive Office of the President, “Frequent
ly Asked Questions” (accessed April 24, 2021), https://www.reginfo.gov/public/jsp/
Utilities/faq.myjsp.

48 Sehen, Zum Beispiel, Sidney A. Shapiro, “The Failure to Understand Expertise in Adminis
trative Law: The Problem and the Consequences,” Wake Forest Law Review 50 (5) (2015):
1097, 1105–1116 (explaining that “public administration expertise” is “more complex

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150 (3) Summer 2021Neomi Rao

and multifaceted than is generally understood” in part because it requires specialized
expertise in “the production of needed information, the assessment of the feasibility of
rules, political judgments, rulemaking management, and final decision making”).
49 See generally Sean D. Croston, “An Important Member of the Family: The Role of Reg
ulatory Exemptions in Administrative Procedure,” Administrative Law Review 64 (1)
(2012): 295 (discussing the increased use of regulatory exemptions and the procedural
guidelines surrounding their use).

50 There is only a scant literature around the public choice of exemptions and my observa
tions are drawn primarily from personal experience. See generally C. Steven Bradford,
“The Cost of Regulatory Exemptions,” UMKC Law Review 72 (4) (2004): 857, 876 (not
ing the limited literature on exemptions and explaining that “the case for regulatory
exemptions is more complicated” and requires considering “the transaction costs of
exemptions, such as specification costs, strategic behavior, enforcement costs, and any
thirdpart[j] information costs”).

51 See generally Aaron L. Nielson, “Waivers, Exemptions, and Prosecutorial Discretion:
An Examination of Agency Nonenforcement Practices,” Report to the Administra
tive Conference of the United States, November 1, 2017, https://www.thecre.com/
pdf/20171112_waivers.pdf (discussing a survey of federal agencies on their nonenforce
ment practices and observing that “agency nonenforcement is . . . not monolithic”).
52 Zum Beispiel, a regulation to protect sea turtles required the installation of expensive
equipment on shrimp trawlers but exempted small fishing boats because they had little
risk of harming sea turtles and such requirements would likely drive small subsistence
fisherman out of business. See “Sea Turtle Conservation; Shrimp Trawling Require
gen,” Federal Register 84 (245) (2019): 70048. Congress also requires agencies to take
into account the effect of regulations on small entities. See Regulatory Flexibility Act of
1980, Public Law No. 96–354, Sek. 2(B), 94 Stat. 1164, 1165 (1980), codified as amended
bei 5 UNS. Code sec. 603(A) (establishing “as a principle of regulatory issuance that agen
cies shall endeavor, consistent with the objectives of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the businesses, organi
zations, and governmental jurisdictions subject to regulation”).

53 Zum Beispiel, regulations implementing the Affordable Care Act provided an exemption
for employers with religious and moral objections from providing contraceptive ser
vices. Those exemptions were upheld by the Supreme Court. See Little Sisters of the Poor
Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).

54 See David J. Barron and Todd D. Rakoff, “In Defense of Big Waiver,” Columbia Law Review
113 (2) (2013): 265, 267 (noting an “increasingly important” but “underappreciated”
delegation to agencies of “broad, discretionary power to determine whether the rule
or rules that Congress has established should be dispensed with. It is the delegation, In
other words, of the power to waive Congress’s rules”).

55 Sohoni, “The Administrative Constitution in Exile,” 923, 946–956 (“The constraints of
the administrative constitution have had little purchase on the executive’s exercise of
waiver and delay–powers that have become increasingly consequential”).

56 See DoddFrank Wall Street Reform and Consumer Protection Act, Public Law No. 111
203, 124 Stat. 1376 (2010); and Richard A. Epstein, “Government by Waiver,” National
Affairs, Frühling 2011, https://nationalaffairs.com/publications/detail/governmentby
waiver.

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57 Ebenda.
58 See Renewable Fuels Association v. HollyFrontier Cheyenne Refining, LLC, 948 F.3d 1206 (10th
Cir. 2020), certiorari granted 141 S. Ct. 974 (2021) (addressing challenge to an Envi
ronmental Protection Agency exemption for small refineries from the Clean Air Act’s
renewable fuels mandate). See generally Cary Coglianese, Gabriel Scheffler, and Dan
iel E. Walter, “Unrules,” Stanford Law Review (bevorstehend 2021), https://papers.ssrn
.com/sol3/papers.cfm?abstract_id=3701841 (describing the Environmental Protection
Agency’s grant of a “financial hardship waiver” from the requirement to purchase re
newable fuel credits as an example of “[u]ndue business influence” over agencies and
pointing out that businesses have “incentives to seek to use [waivers and exemptions]
to get out from under regulations and avoid the compliance costs that other firms must
bear”).

59 Sehen, Zum Beispiel, Brief for Respondents at 17–18, Chamber of Commerce v. EPA, 642 F.3d 192
(D.C. Cir. 2011) (“The California regulations for which the waiver was granted directly
regulate only vehicle manufacturers, who have not challenged the grant of the waiver.
. . . Petitioners are not themselves the subject of the agency action being challenged,
they must come forward with specific facts to demonstrate that they have an identifi
able member who has suffered a redressable injury from the waiver grant”).

60 The Constitution explicitly removed Congress from any role in the execution of laws,
precisely because the framers thought such a dual role would distort the general law
making power: it would affect how the “general good” was ascertained by focusing on
particular concerns. See Rao, “Why Congress Matters,” 8 (“Legislation can be corrupt
ed by a focus on execution and particular applications of the law. The executive cannot
make the laws because it is concerned with the particular and is not a collective repre
sentative body empowered to reflect the general will”).

61 See Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity
Commission, 565 UNS. 171, 196 (2012) (holding that the First Amendment’s ministerial
exception barred an employment discrimination suit against a religious employer be
cause the employee was a minister within the meaning of that exception).

62 See Burwell v. Hobby Lobby Stores, Inc., 573 UNS. 682, 690–692 (2014) (invalidating the ap
plication of a contraception mandate regulation to three closely held corporations be
cause the regulation imposed “a substantial burden on religious exercise” and was not
“the least restrictive means” of achieving a compelling government interest).

63 Sehen, Zum Beispiel, Philip Bump, “What Campaign Contributions Tell Us about the Partisan
ship of Government Employees,” The Washington Post, Dezember 27, 2018, https://www
.washingtonpost.com/politics/2018/12/27/istrumpsdismissalunpaidgovernment
employeesdemocratsaccurate/ (showing that 82 percent of 2018 contributions from
Treasury Department employees went to Democrats, while for Justice, Landwirtschaft, Und
Homeland Security, the percentages were 79, 72, Und 60, jeweils); and Jonathan
Swan, “Government Workers Shun Trump, Give Big Money to Clinton,” The Hill, Octo
ber 26, 2016, https://thehill.com/homenews/campaign/302817governmentworkers
shuntrumpgivebigmoneytoclintoncampaign (“Of the roughly $2 million that federal workers from 14 agencies spent on presidential politics by the end of Septem ber, um $1.9 Million, oder 95 Prozent, went to the Democratic nominee’s campaign”).

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