Tomorrow the Senate Judiciary Committee will hold its hearing on the nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. In nominating Rao, President Trump has chosen wisely. Indeed, Rao’s current service as the nation’s regulatory czar makes her uniquely qualified to serve on the D.C. Circuit.
The D.C. Circuit is arguably the country’s “second most important court,” after the Supreme Court. That is, in part, because the D.C. Circuit is the leading administrative law court. Administrative law sets the ground rules for how federal agencies regulate and how federal courts review and constrain such agency action. Congress has granted the D.C. Circuit exclusive jurisdiction to review many of the most important challenges to federal agency actions. As such, the D.C. Circuit has played a prominent role in shaping the development of administrative law and regulatory practice.
With the rise of regulation and the decline of legislation, the D.C. Circuit’s importance as the nation’s premier administrative law court has become even more pronounced in recent years. Today the bulk of federal lawmaking does not come from Congress, but from the administrative state. To provide just one, albeit-imperfect snapshot, in 2015 and 2016 federal agencies promulgated more than 7,000 final rules filling more than 60,000 pages in the Federal Register. During that same time, the 114th Congress enacted just 329 public laws filling about 3,000 pages in the Statutes at Large. The D.C. Circuit, by congressional design, serves as an important bulwark against abuses in this burgeoning regulatory lawmaking process.
Rao is an inspired choice to serve on the D.C. Circuit. She possesses the intellectual firepower, credentials, and experience to join this elite judicial bench. After graduating from college at Yale and law school at the University of Chicago, Rao worked in all three branches of the federal government—on the Supreme Court as a law clerk to Justice Thomas, on the Senate Judiciary Committee as counsel to Senator Orrin Hatch, and in the White House Counsel’s Office as counsel and special assistant to President George W. Bush. Rao also worked in private law practice for a number of years before joining the legal academy, where she quickly became a prominent and prolific scholar of administrative law and constitutional theory.
Rao also possesses one important qualification shared by no prior D.C. Circuit nominee: Since July 2017, Rao has served as Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget. OIRA Administrator, often referred to as America’s “regulatory czar,” oversees the vast federal administrative state and reviews proposed regulations from every executive agency.
During her service as OIRA Administrator, Rao has worked in the regulatory trenches and gained an inside perspective on the entire federal administrative state. This real-world experience makes her uniquely qualified to serve on the country’s premier administrative law court. As a judge, for instance, she would appreciate the importance of congressional supremacy in lawmaking, while also understanding the challenges the President and federal agencies face when attempting to implement the statutes Congress has charged them to administer. If confirmed, Rao would quickly become a leading voice in the federal judiciary when it comes to administrative law. Especially in this modern era of lawmaking by regulation, Rao’s is a much-needed voice on the D.C. Circuit.
On a more personal note, I have had the privilege of serving with Rao on the Administrative Conference of the United States and on the governing council of the American Bar Association’s Section of Administrative Law and Regulatory Practice. The Administrative Conference is an independent federal agency that convenes regulatory experts, such as Rao, from the private and public sectors to recommend improvements to the administrative process. The ABA Administrative Law Section is a nonpartisan organization with a similar mission, and we were fortunate to have Rao on our leadership council before she answered the call to serve as OIRA Administrator. Based on those interactions as well as my familiarity with her legal scholarship, I am confident Rao would strive to safeguard federal agencies’ ability to faithfully execute the law while also ensuring they follow the procedures and substantive requirements set forth by Congress and the Constitution. I may not agree with her decision in every case, but she would be a fair and careful judge and a fierce defender of the rule of law. I hope the Senate will swiftly confirm her.