Neomi Rao, the president's pick to run the Office of Information and Regulatory Affairs (OIRA), went before the Senate Committee on Homeland Security and Government Affairs today. Her testimony suggests that she'll bring a much-needed seriousness and professionalism to her office—and to an administration that til now has pursued deregulation in a rather haphazard and erratic way.
OIRA is responsible for vetting regulations to prevent duplication or contradiction and to ensure that the rules are in line with legislative intent. Rao repeated throughout the hearing that she wants to bring stronger oversight to independent agencies, and that deregulation requires cost-benefit analysis to ensure that it actually reduces the regulatory footprint.
This squares with what Rao has advocated as a legal scholar at George Mason University's Center for the Study of the Administrative State, which she founded. She has harshly criticized the excessive delegation of powers to independent agencies, a practice that she says undermines "individual liberty by allowing for the expansion of the administrative state outside the Constitution's requirements for accountability."
For Rao, handing over lawmaking authority to organizations like the Consumer Finance Protection Bureau—whose abuses and unaccountability Reason highlighted here—doesn't just allow lawmaking to occur outside the Constitution's constraints on the legislative branch. It encourages individual lawmakers to seek policy changes by influencing these agencies. "Delegation gives members a way to exercise power and control outside the cumbersome and difficult process of enacting legislation," Rao wrote in a 2015 article.
Rao also contends that these agencies unconstitutionally limit the executive branch's independence by depriving the president of the power to remove agency heads. And as she mentioned in her committee hearing, she wants to subject rules made by these agencies to cost-benefit analysis—a process from which they are currently exempt.
Surprisingly, both Democrats and Republicans at today's committee hearing reacted supportively to Rao's views. Sen. Heitkamp (D–S.D.) said she looked forward to working with Rao on subjecting independent agencies to more scrutiny and on abolishing unnecessary rules. More than one former head of OIRA agrees. "Her legal scholarship and expertise will be invaluable as she works to make sure agencies respect the boundaries of delegated authority," said Susan Dudley, OIRA chief under George W. Bush. Clinton-era OIRA director Sally Katzen called her "clearly a smart and qualified choice to fill the post."
The only major critiques of Rao have come from activists opposed to virtually any scrutiny of the government's regulatory powers. Robert Weissmen, the president of Public Citizen, warned in April that Rao might "give corporations a free hand to pollute and pilfer, poison and profiteer." The Daily Kos called her nomination "the end of everything good."
In fact, Rao has written that "Congress retains wide latitude to establish administrative agencies and create regulatory duties." She's far from a firebreathing anti-government warrior, but she seems likely to display a constitutionally grounded approach to regulatory oversight. As Reason's Matt Welch has pointed out, that might be the best libertarians can hope for right now:
With the Trump presidency in an ongoing state of crisis management, and his legislative agenda foundering at best, these largely under-the-radar regulatory slowdowns and positive reforms may prove to be the most tangibly useful aspects of his White House tenure.