January 7, 2021
Analyzing DOJ’s OIRA Opinion Memorandum
The Department of Justice (DOJ) recently released an opinion that finds the president can legally direct independent agencies to submit regulations to the White House for review. In a new analysis, AAF’s Director of Regulatory Policy Dan Bosch examines the history behind regulatory review, the DOJ’s reasoning behind this memorandum, and the opinion’s potential consequences.
DOJ’s opinion memorandum supports the prevailing legal theory that a president could direct independent agencies to submit their regulations to OIRA for review at the executive’s discretion. Because such review is not technically decisive on the regulations in question, independent agencies would maintain their independence while the president would get more control over all executive agencies. What happens with the memorandum as the Biden Administration begins its first term remains to be seen, but it could have a significant impact on independent agencies going forward.