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Neomi Rao Nomination A Win For Constitutional Conservatives

President Trump has nominated conservative lawyer Neomi Rao to run the obscure but powerful Office of Information and Regulatory Affairs, (OIRA) one of the most important gateways through which federal regulations must pass.

Rao, an associate professor of law at George Mason’s Scalia Law School, is well known in conservative circles Neomi Raofor her outstanding writings on the growth of the administrative state and the constitutionality of so-called independent agencies.

Glenn Harlan Reynolds, writing for Instapundit said of the Rao nomination, “Trump’s selection of Rao suggests the administration is serious about regulatory reform, not merely reducing high-profile regulatory burdens. The selection of a well-respected administrative law expert further suggests the administration recognizes the need to be attentive to legal constraints on administrative action and that meaningful reforms require more than issuing a few executive orders. Rao is a superlative pick.”

In light of President Trump’s executive order that two regulations must be eliminated for every new regulation — and with costs and benefits that match — Ms. Rao will be a key player in implementing the President’s commitment to dismantle the administrative state.

July 23, 2015, Professor Rao was a witness at a hearing of the U.S. Senate Committee on the Judiciary, Subcommittee on The Constitution. The hearing was entitled “The Administrative State v. The Constitution: Dodd-Frank at Five Years.

Testifying on the constitutionality of Dodd-Frank, Rao focused on the Consumer Financial Protection Bureau. “The super independence of this Bureau demonstrates many of the problems of administration without meaningful presidential control or congressional oversight,” Rao said. “Moreover, it provides an especially stark example of the types of abuse that can result from overbroad delegations of authority to agencies. These concerns with the Bureau existed at enactment, but the passage of time has demonstrated how the constitutional infirmities encourage actions by the Bureau that exceed its legal authority and undermine the predictability and stability of the rule of law.”

One of Prof. Rao’s key points in her testimony was this:

The Constitution, however, is not the exclusive domain of the courts and judicial doctrine does not exhaust the full meaning of the Constitution. As this hearing before the Subcommittee on the Constitution recognizes, Congress has a duty to evaluate constitutional infirmities in statutes and to provide corrections. No mere academic exercise, the constitutional problems are the foundation for the Act’s weaknesses and for its problematic implementation by agencies unencumbered by the mechanisms of democratic accountability.  (emphasis ours)

In the 80-plus years since Franklin Delano Roosevelt’s New Deal, Congress has increasingly chosen to ignore constitutional considerations in favor of broad grants of administrative authority to agencies that lack what Prof. Rao rightly called “the mechanisms of democratic accountability.”

Susan Dudley, who served as OIRA administrator during the last two years of the George W. Bush administration, said of Prof. Rao, “The next OIRA administrator will enforce Mr. Trump’s executive order that agencies eliminate costly regulations while identifying those that still provide significant net benefits. That will require principled and pragmatic leadership, and Ms. Rao has the experience, intellect and character for the job.”

Dudley noted that OIRA allows the president to manage the regulatory authority that Congress has delegated to the executive branch. By some estimates regulations cost Americans more than $2 trillion a year, and every president since Reagan has recognized that letting agencies make policy without White House oversight would be like giving them a blank check on their budgets.

But a “blank check” to write regulations is exactly what liberals and Democrats in Congress want, and establishment Republicans have been all too ready to go along with them because such delegations increase the power of individual Members of Congress at the expense of transparency and decision-making by on-the-record votes.

Prof. Rao explored this dynamic in her article, Administrative Collusion: How Delegation Diminishes the Collective Congress, for New York University Law Review (Vol. 90, No. 5, pp. 1463-1526, 2015).

Ms. Rao’s point was that delegations of authority by Congress allow individual congressmen to control administration.

Delegations create administrative discretion, said Rao, discretion that members of Congress can influence through a variety of formal and informal mechanisms. Members have persistent incentives for delegation to agencies, because it is often easier to serve their interests through shaping administration than by passing legislation.

As much as anything this article demonstrates that Neomi Rao gets the fundamentally anti-democratic nature of the modern administrative state and what to do about it. Many in Congress will not welcome her nomination and will seek to stop it, but limited government constitutional conservatives should welcome the nomination of Neomi Rao to head OIRA as a major victory for constitutional government and fight tooth and nail to secure her confirmation.

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