A Comment on Administrative Law from the Inside Out—Essays on Themes in the Work of Jerry L. Mashaw, by Jim Tozzi

by Guest Blogger — Wednesday, Feb. 13, 2019

After a number of weekends the Editor has finished reading a very informative book written by a score of talented scholars and edited by Professor Parrillo of Yale University on the works of an administrative law legend, Professor Mashaw.

Selfishly we often read articles from the perspective of issues we are working on, in this instance centralized regulatory review and the Data Quality Act.

The text states:

For a generation, Jerry L. Mashaw, the most boundary-pushing scholar in the field of administrative law, has argued that bureaucrats can and should self-generate the norms that give us a government of laws.

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!

At times the hesitancy of some members of the academy to recognize OIRA as a credible participant in the management of the administrative state relative to the judiciary may in part have its roots in the belief that relief from onerous regulations historically has and continues to reside in large part within the courts. The text states in pointed manner:

“The dominant concerns of federal administrative law as an academic field, from at least the 1930s through to the present, have been: (a) how Congress delegates power to agencies through statutes; and (b) how federal courts control an agency’s actions through lawsuits, usually to ensure conformity with a congressional statute.”

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.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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