Address by OIRA Administrator Hon. Paul J. Ray

Executive Branch Review Week Teleforum

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The Paperwork Reduction Act of 1980 created the Office of Information and Regulatory Affair (OIRA) within the Office of Management and Budget (Office of Management and Budget ). Executive Order 12291, issued by President Reagan in 1981, gave OIRA the responsibility to review the subject matter of government agency’ regulatory actions before publication in the Federal Register. The Office’s regulatory review persona was initially highly controversial, and it has been criticized throughout the past decades as being both too active and too passive, in regard to agency rules. Regardless of which side of the political spectrum critics fall on however, many believe OIRA is one of the most important, if relatively unknown, sources of government power in relation to the Executive branch and the Administrative state. Although OIRA has a number of specific statutory responsibilities (e.g., paperwork review and regulatory accounting), as a constituent of OMB it is part of the Executive Office of the President, and helps ensure that covered agencies’ rules reflect the President’s policies and priorities.

As our final event of our Executive Branch Review week, Paul Ray, head of OIRA, joins us to discuss his work and the current relevant issues facing the Office of Information and Regulatory Affairs. 


Hon. Paul J. Ray, Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget


This event is part of Executive Branch Review Week.



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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Dean Reuter:  Welcome to a special Executive Branch Review Week edition of The Federalist Society's practice group teleforum conference call, as today, May 1, 2020 we close out Executive Branch Review week with an address by OIRA Administrator, Paul Ray. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed in the future.


      We're going to hear an address from Paul Ray to conclude our week here on Executive Branch Review. He's going to speak for some 30 or 40 minutes, perhaps 45 minutes. It's unlikely we're going to be able to take questions, so I wanted to let you know that in advance. Also, his call is off the record. Not open to the press. But we're very pleased to welcome OIRA Administrator Paul Ray. With that, Mr. Ray, the floor is yours.


Hon. Paul J. Ray:  Thank you, Dean, very much for that kind introduction. It's wonderful to be with you all this afternoon. I apologize in advance that our time this afternoon must be relatively brief. Pace over here these days is, as you might imagine, difficult to exaggerate for all the obvious reasons. So we'll have to be relatively brief. But it is a great honor to join you today. I wish I could be there in person, but I'm glad FedSoc and others have found ways to continue to operate during this time.


      I noticed that most of the discussions and panels this week are not focused on COVID-19 and I was pleased to see that. There's no question that COVID, and our government's response to it, are topics of the first importance, of course, ever present to everyone's mind. But notwithstanding, the intensity of our focus on COVID, it is vital to continue to discuss the first principles of government, that is, if we're going to imitate that extraordinary image from The Republic, Plato, the ship's captain. One eye on fixed stars principle; the other on changing waves to circumstance. Always tacking in response to new challenges but ever seeking his one harbor.


      As you all know, The Federalist Society has long played a key role in ensuring that first principles are discussed amid the hurly-burly of practical politics. I am grateful that you continue to play that role today. In that tradition, I will mostly, although not entirely, omit discussion of our COVID response from my remarks today.


      I considered a few different titles for this talk. One was, A View From the Cockpit of the Death Star. That title was inspired by a friend's comment from early 2017. Perhaps a reminder that either political party can wield the awesome powers of the administrative system who have convinced both right and left to limit those powers. That we're better off without a Death Star than perpetually tussling for its controls. Unfortunately, no such consensus has emerged, as you're aware. The title I ultimately adopted was, I hope, more informative if less galactic. Diagnosing the Administrative System:  A Second Opinion.


      There is a criticism of the administrative system that goes something like this. Congress, with the connivance of the courts, has delegated sweeping powers to federal agencies. Those agencies, staffed by employees protected by the civil service laws, and thus, not meaningfully accountable to the President and the people elect, issue regulations that bind American citizens with the force of law. Because courts defer to agency interpretations of already vague statutes, agency regulations are very nearly untethered from any congressional directive. Delegation, plus limitations on presidential power, plus Chevron, equals a sum of government that is not of the people or by the people.


      Now this criticism makes several important points. And today, I would like to draw my experience within the administrative system to advance two arguments about this critique. First, that internal Executive Branch controls developed over the last few decades helped to vindicate the President's authority over the rulemaking process. Because the President is accountable to the people, these internal executive controls impart a degree of political accountability to the rulemaking process. Although, let me hasten to add, without in any way eliminating the need for accountability through Congress.


      Second, I will argue that while much tension has rightly been focused on the problem of accountability in the rulemaking process, the administrative enforcement process also implicates accountability concerns. Those concerns arise partly, although not entirely, in the unification of rulemaking and enforcement powers in the same entities. This loss of separation of powers, combined with the relative lack of procedural protections undermines traditional notions of rule of law and the administrative enforcement context.


      First, let me explain why I believe internal Executive Branch processes have imparted a degree of political accountability to the rulemaking process. To do that, I need to briefly explain the role of my office. OIRA is best known for its review of regulations. An executive agency may issue an important regulation only after OIRA has signed off it. OIRA review pursues two missions. First, we ensure that regulations are lawful, rational, and consistent with good regulatory practices. Second, we run the process to ensure that, in each regulation, the executive speaks with one voice and that that voice is the President's.


      Much OIRA staff time is devoted to the first mission, which is critical. Ensuring that regulations have well documented benefits that exceed their costs, as well as requiring compliance with other regulatory norms. But I want to focus, today, on the second of OIRA's key missions, which is running a robust interagency review process.


      Each Executive Branch agency has been entrusted with certain missions by Congress. Each have access to certain types of information and expertise. And each has been directed by the President to pursue certain policies. A rulemaking by one agency can often be made much better by crosspollinating it with the data or views of another agency. Likewise, one agency's regulation may conflict with another agency's policy. Regulating rationally means resolving those disagreements before a rule's issue rather than permitting the federal government to act at cross purposes with itself.


      For these reasons, when an agency submits a regulation to OIRA, my office sends the regulation to all other executive agencies and White House components that may have relevant information or views. For instance, suppose the Labor Department believes an HHS regulation would conflict with its policies. Labor would submit comments into the OIRA process asking HHS to adjust its regulation or terminate its rulemaking all together. HHS may acquiesce, or it may decline. If it declines, it is Labor's turn to decide whether to stand down. If neither agency stands down, then OIRA initiates what is termed the elevation process, which draws in successively higher officials until the dispute is resolved, starting with the policy staff and terminating with Cabinet Secretaries and the most senior Presidential Advisors, or in rare instances, with the President.


      This process is relevant here because it means that agencies do not issue important regulations without review by multiple offices within, and without, the White House, each of which is tasked with pursuing presidential priorities.  Each reviewing office wishes to promote the policy it believes the President has entrusted to it and for which it is accountable to.  And, through the elevations process, each office has the tools to correct a regulation that has strayed from the President's policy direction, including if necessary, by appealing to the President, himself. In other words, the President, acting personally or through his senior advisors and appointees, supervises the content of important regulations consistent with the law.


      There are two important caveats here. First, what I've said does not apply to the regulatory process of the independent agencies, such as the SEC, whose connection to the President is more tenuous. Second, I have spoken here of rules. Of course, agencies also issue many documents that are not rules. These include policy statements, interpretive rules, notices, and Dear Colleague letters. While such guidance documents are nonbinding, they certainly influence private party pager, which is of course, why agencies issue them.


      Until recently, many important guidance documents were immune from OIRA review. But in October, President Trump signed Executive Order 13891, which brought important guidance documents into the OIRA review process, as well as required cost-benefit analysis and public notice-and-comment [inaudible 00:10:00]. This order, which incidentally has been praised by former OIRA administrators, both parties, close a loophole in a system of political oversight and accountability.


      Now, let me be clear. Accountability through the Presidency can never substitute for accountability through Congress. In particular, it can never excuse Congress from exercising its duty to enact definite statutes that create substantive standards of conduct, rather than delegating such questions to agencies. But supervision of agency rulemaking by the President and the people elect, does at least inject additional democratic accountability into the rulemaking process.


      I would like, now, to contrast the rulemaking process with administrative enforcement. Enforcement, which is a term I will use today, to refer to everything from investigations to adjudications, occurs at the opposite end of the spectrum from rulemaking in almost every way. A number of rulemakings, while large, is manageable. OIRA and other White House offices contact all important rules under development. But the number of enforcement proceedings is vast. In fiscal year 2018, for instance, EPA alone initiated 1800 civil, judicial, and administrative cases and conducted more than 10,000 inspections or evaluations. To my knowledge, no government agency tracks the number of enforcement proceedings, or the type, across the whole federal government.


      A second important difference between rulemaking and enforcement, is that the former occurs in the agency's central office subject to the supervision of the agency head and his or her policy staff. While enforcement often occurs in branch or regional offices around the country. These offices often have no policy officials and relatively thin connections to the agency's central office.


      Third, agencies’ enforcement arms tend to have few policy officials relative to the number of career staff. For instance, the Labor Department's Wage and Hour Division, one of the offices with which small businesses are most likely to interact, has over 1,000 career staff and only two or three political appointees. With a ratio that large, even the most diligent Wage and Hour administrator cannot closely supervise every decision in every enforcement action. And reflect, that even a single enforcement action includes a vast number of decisions from initiation to timing to the kinds of discovery to pursue. From penalties to the possibility of a consent decree. Each of these choices can have a tremendous impact on the lives of individual Americans.


      In short, by an irony of history, the President effectively controls the rulemaking process, which to the casual observer, or even to the very well-informed observer, may look like the legislative power of Article I. While his control of the Article II power to enforce the law, an executive power, if ever there was one, is attenuated. To which, if you on this call might respond, if everyone's phones were not on mute, thank goodness. We can all agree that politically motivated enforcement actions would be profoundly wrong. Doesn't insulating agency enforcement staff from presidential control prevent political influence?


      Of course, control of agency enforcement efforts must rest somewhere. If not on the President, then in agency staff. Many agency staff are men and women of integrity who've given up lucrative careers to serve their country. But they are also human. Staff may have their own priorities, beliefs, agendas, errors, or even grudges. Agency career staff differ from the Presidency, not in their immunity from temptation, but in a lack of accountability to the people. One of the American Founder's groundbreaking realizations was that power creates both the opportunity and the temptation for its abuse no matter who wields that power. That is why all power must be constrained.


      Accountability, itself, is one such constraint. Another is law, which limits the discretion of the government, and if that law is enacted by the people or their representatives, holding the government to the law, itself, creates a kind of accountability. That is one reason for the many constitutional and procedural restraints under which law enforcement and the courts operate. But agencies may, and do, engage in enforcement practices that would unlawful outside the administrative context, even though the stakes in an administrative proceeding can be immensely high.


      For instances, administrative inspections or searches generally do not require justification. Agencies need not show probable cause. Agencies face no speedy requirement akin to the speedy trial guarantee found in the Sixth Amendment. Agencies can pursue certain enforcement actions for which respondents do not have recourse to an independent adjudicator, at least in the first instance. And finally, agencies generally have no obligation to turn over exculpatory or mitigating evidence to respondents.


      Now, the Founders were realists enough to know that electoral accountability, while necessary, is not sufficient to guarantee government of the people by the people and for the people. They relied on other protections, as well. For one, as I have mentioned, they made the government subject to law. For another, they invested the legislative power in a body which is not simply chosen by the people, but drawn from them and returned to them. It lives among them and consists of members who are subject to the very laws they enact, just as the people are. This close connection to the people creates a unity of interest and outlook warranting the commonplace widespread to the Founding that Congress is uniquely the people's branch.


      The role of this unity of interest played for the founding generation cannot be overstated. In particular, they’re regarded as immensely important that those who make the laws should live under them, like the people do. A notion, by the way, that is almost completely absent in our current political discourse. Federalist 57 observes that, if the spirit of Americans should "ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty." Those are strong words. Incidentally, the Founders would have been flabbergasted by today's specialist legislation about discrete groups and sectors. Such legislation lacks basic safeguard of unity of interest.


      Notably, the Founders did not hope for any such unity of interest and outlook between the people and the Executive. That is because the Executive and the people differ in one crucial respect. The Executive enforces the law, whereas the people have the law enforced to their benefit or detriment. This inevitable difference leads to a divergence of interest. The Executive has an incentive to desire laws that are broad, open-ended, and strict. While many of those against whom the laws will be enforced, wish to seem them clear, narrow tailored, and lax.


      This divergence shows most clearly, if you compare legislation with regulation. A statute about small businesses would apply equally to small business owners who are in Congress as to those who are outside it. But a regulation about small businesses would necessarily apply differently to regulated businesses than it does to the regulating and enforcing agency. Indeed, the interest of the agency on crucial points, such as: clarity of standards, compliance burdens, frequency of inspection, evidence of infraction. Defenses and statutes of limitation are likely to be, not just different from, but adverse to the interests of many of the regulated parties.


      In other words, unlike statutes, which can apply equally to the rulers of the ruled, regulations necessarily do not regulate those who make them. Now, this is more than a theoretical point. In my experience, agencies are haunted by the fear of the corner case. That their regulations will inadvertently bar them from enforcement in some unlikely or unanticipated scenario. So they tend to make rules broad, or at least ambiguous, confident that they can use their enforcement discretion to focus on true wrongdoing.


      The effects of this tendency to regulate broadly are exacerbated by the proliferation of regulations. As of the end of 2016, the Code of Federal Regulations contained more than 180,000 pages of regulations. And of course, that does not include interpretive memoranda, policy announcements, or other forms of guidance. Unfortunately, agencies display more zeal for issuing new regulations than for revising, or even re-reading, old ones.


      One agency, on searching into archives recently, discovered four regulations still binding on the public that require notifications via telegram. The result is that, for everyone but large companies with armies of lawyers, discovering what conduct regulations protect, require, permit, or prohibit can be challenging, if not practically impossible. That state of affairs leaves individuals in small businesses dependent on agency discretion. But discretion is cold comfort to people who now must live in the shadow of possible enforcement.


      One of the benefits of the rule of law, of course, is to allow individuals to plan their lives with certitude. When people can not know what the law requires of them, they lose that certitude. For small business, in particular, this can be devastating. One consistent theme I've heard from the small business community, if the certainty about the legal requirements that apply to them can be of even greater value than rescinding additional burdens and regulations.


      More fundamentally, dependence on agency enforcement discretion undermines the very essence of the rule of law. Law, Aristotle tells us, is reason devoid of passion. That is to say, law's value is that it is abstracted from the particulars of a situation. And the human emotions, errors, and prejudices inevitably bound up with those particulars. Having distanced itself from these influences, law aspires to a true and disinterested assessment of what justice, prudence, and the public would require. An assessment that will then govern decisions in particular instances and check the passions of the decision maker. To be sure, the Executive must inevitably possess some degree of enforcement discretion, law cannot cover every particular. But a well-ordered system of government will give that discretion rein only when necessary.


      The problem is this. When regulations are abundant, complex, and vague, agency staff can generally find, or at least allege, a technical violation, even by the most well-intentioned. The operative question then becomes not what the law requires, but whether and how the agency staff will choose to enforce. And that state of affairs reintroduces the decision maker's will. Influenced as it may be, but bias, anger, favoritism, and a host of other motives. To put it bluntly, Americans caught in this web of complex vague regulations lose the core benefit of the rule of law. They operate at the whim of the rulers rather than under the dictates of the law.


      The Executives' incentive to seek unbounded enforcement authority is, of course, one reason to the Constitution's separation of powers. The law into separation, rather than of political accountability, is to my mind the chief problem with the Executives' possession of robust rulemaking authority.


      The Founders are sometimes accused of reducing government to mechanical, almost Newtonian principles. But there's was a lively sense of human pride and passion. They believed that in addition to a unity of interest, members of Congress would have a unity of sympathy with the people from among whom they were chosen and with whom they share a life. They would instinctively identify with the needs of the workers, business owners, farmers, and families they represent. The President, by contrast, would be chosen from among the few nationally imminent individuals.


      The Founders would not have been surprised that the Presidency usually marks the culmination of a successful career as a politician, a general, or both. Such a career is likely to inculcate both an appreciation for, and a habit of using, the instruments of executive power. To give such a person the tools to expand his or her own authority is to trust the fox to guard the hen house. And that, by the way, is what makes President Trump's focus on regulatory reform so remarkable. I've been struck by how sympathies are with individuals and small business owners, perhaps due to his own long experience as one of the regulated rather than one of the regulators.


      Now, a truly effective remedy to the malady I have described must involve all three branches of government. But even alone, the Executive can take important steps, especially with regard to procedure. And it is procedure that often prevents or allows abuse of authority. Civil and criminal trials occur under the carefully calibrated rules of procedure that preserve their integrity and promote an accurate and just outcome. But analogs in the administrative enforcement context are comparatively few and agency specific.


      The President took the first of vital steps to address this problem in October when he issued two executive orders to address the worst abuses of agency enforcement authority. These orders forbid agencies to enforce based on guidance documents that are not readily available to the public. They also require agencies to prove violations based on statutes and regulations, not just guidance documents. To apply only standards of conduct that existed when the conduct at issue occurred and to impose penalties only after notice and an opportunity to respond. Some commenters were surprised by these orders. But the only surprising thing should be that such basic principles needed reinforcement at all.


      The administration took the second step to prevent abuse of the enforcement process several weeks ago, when my department launched a process to identify any aspect of administrative enforcement that deviates from what Americans believe to be core principles of fairness. The goal of this process is to articulate certain norms of fair treatment and respect in the enforcement process to which agencies will adhere.


      In response to a request for information, we received over 1,300 public comments on all aspects of the administrative enforcement process. While we are still evaluating those comments, it's safe to say that administrative enforcement proceedings should adhere, at least, to the following standards. Legal compliance must be presumed. Investigations must be timely. Agency rules of procedure must be clear and effective. Adjudicators must be independent, not beholden to agency enforcement staff. Penalties must be transparent, consistent across proceedings, and proportionate to the misconduct alleged. And they may be imposed only for violations of statutes or duly issued regulations. Adjudications must be free from coercion. And agency staff must be accountable for how they respect the rights of Americans.


      Much that I have said today is premised on the need to make the federal administrative system accountable to the people through the electoral process. If we are to be a self-governing people, that is a vital need. But not the only need. And for the last few minutes today, I'd like to explain why. To do that, I suggest we look at Ancient Greece, Early America, and our nation's response to COVID-19, which are topics I think that are not too often linked.


      The classical idea of the active life involved participation in politics. By participation, I mean not simply electing those who will rule, but engaging in rule itself. That is why Ancient Athens, founded on the principle that political life should be open to the people, rather than just the wealthy or well-born, selected individuals for most offices by lot, at random. Rule by the people meant that members of the people engaged in actual rule. Indeed, Aristotle writing 4th century B.C. Athens defined its citizen in the fullest sense as one who rules, and is ruled in turn.


      Elections, by contrast, were an aristocratic element in Ancient Greek regimes, because elections were designed to select the best men who was thought to be specially suited to rule. For an Ancient Greek, participation in public life was necessary to achieve the highest human act of excellence. It was here that three of the four great classical virtues had their highest form. Courage on the battlefield, justice in crafting laws and deciding cases, and prudence in guiding the city. It seems to me that Early Americans shared with the classical world a passion for participation in rule. In this great portrait of the Early Republic, Tocqueville describes widespread participation in all forms of public life, from town government to the countless private associations Americans form to achieve public ends. Indeed, Tocqueville attributes the American experiment success to its widespread opportunity to participate and rule. He writes, for instance, that town meetings are to liberty what primary schools are to science. A bring it within the people's reach. They teach men how to use and how to enjoy it.


      Now, the federal government offers an opportunity for participation in rule only to a very small number of individuals. The President, some senior administration officials, a few hundred members of Congress, and a few hundred judges. That is by design. The Founders intended that most participation in civic life would occur in the states and local governments, on in America's many civic associations.


      The Constitution was designed to protect space for free initiative by these bodies. Not to replace them. But as more decisions have been pulled into the federal vortex, that space has diminished. And with it, the opportunity for Americans to participate in actual rule.


      And that brings me to the administration's response to COVID. The President has forcefully deployed his statutory and constitutional authority to fight the pandemic. Looking only at regulatory measures, agencies have issued over 500 regulatory actions, covering everything from testing and telemedicine to supplies and school lunch. And that doesn't even count regulatory actions implementing the CARES Act. Remarkably, the vast majority of his regulations have created flexibilities for hospitals, medical providers, states, and others on the frontlines fighting COVID are helping Americans who have been impacted by the disease.


      Perhaps more remarkably, still, the President's leadership in implementing aggressive containment measures, and now on reopening the economy, has respected state and local autonomy. While federal agencies provided guidance, it is our nation's governors, mayors, and other state and local officials who've decided what containment measures to apply, and when and how to reopen. As Chris DeMuth pointed out recently, in an insightful article, this response has reversed the usual order of things in Washington, in which a crisis provides grounds for a vast expansion of federal power.


      In other words, the COVID response has been consistent with the view that self-government, in its fullest sense, entails the opportunity for actual participation and rule. And with America's commitment to affording such an opportunity, not just the so-called elites in Washington, but to the people, themselves. And that is an important step in the direction of government of the people, by the people, and for the people.


      I will stop there, and I think we do have a couple minutes for questions, here. So Dean, I'll turn it over to you.


Dean Reuter:  Very good. Thank you so much. If you've joined us after my introductions, this is the final element of The Federalist Society's Executive Branch Review Week. We're very pleased to have with us OIRA Director, Paul Ray. He's agreed to take a question or two. Let's see if we can get to those. And while we wait to see who rings in with a question, if anyone does, I'll ask the first question to get things started. And that really goes to something you said about the nature of the administrative state, and I think you were getting around towards sort of the separation of powers.


      You mentioned trying to make sure that adjudicators within agencies are not beholden to enforcement officials. Has there been any consideration to removing the administrative law judges from within particular agencies and maybe centralizing them elsewhere, even if they're not Article III judges, moving all of them outside the particular agencies? Because I'm guessing some people assert, even if they're not beholden to enforcement officials, they might be beholden to agency heads, and you still have a separation of powers problem, where you have agency staff all within the same agency, basically legislating, or filling out the contours of legislation as they pass regulations and guidance, and then investigate, and then bring enforcement actions. And then employees that work alongside them adjudicate those. So, it's a long-winded question, but any thinking along those lines? Or have I mis-described that?


Hon. Paul J. Ray:  Dean, this is a very familiar question. It's been a familiar question for a long time. I remember when I was a 1L going to my professor in law school with this exact idea and saying, why on earth wouldn't we just take them out of the agencies. This is a fundamentally separate function from what the Executive Branch should be doing. And wouldn't they benefit from separation from other agency staff? And I think -- I thought it was a good point then. I think it is still a good point. Obviously, I can't take a position here for the Executive Branch on that question. But I think it's a very, very fair point.


      And another dimension that I would want to highlight for that question is, even if it's possible to insulate administrative law judges from enforcement officials and agency heads, they still -- they've joined that particular agency for a reason, right. Agency staff, quite understandably, tend to join an agency in whose mission they strongly believe. And so if you are an administrative law judge in an agency that pursues X mission, presumably, you are sympathetic to the pursuit of that mission and you might be inclined to prioritize the achievement of objectives in pursuance of that mission above other values. And I think that's why we want judges to be independent, so they do not, for instance, weigh the value of the Executive's interest in a particular law enforcement objective over other values, such as liberty and due process.


      And the final point I'll make on this is, it's very difficult to think about insulating ALJs from agency heads because then, it seems that you have someone who is, in fact, an Article II employee who's not accountable in any way to the people. But if you don't have any sort of insulation, then you seem to have a unity of functions. So it's -- yeah, the structure raises a number of questions.


Dean Reuter:  We've got a caller from area code 804. Go ahead caller.


Steve Gannon:  Director Ray, this is Steve Gannon from Boston. A question for you. Is it time for Executive Order 12866 to be amended to it applies to independent agencies?


 Hon. Paul J. Ray:  That is also a very good question. It's a question I received in my Senate confirmation hearings back in December, and I will tell you what I told the Senators, which is, the Executive has not announced a plan to do that. I do think that a lot of the values that are served by Executive Order 12866 in promoting cost-benefit analysis and ensuring that there is not a conflict between agencies pursuing different policies apply to the independent agencies as much as they do to the Executive Branch agencies. And I think 866 has shown itself to create a very stable and helpful framework for addressing those issues. So those are all points in favor, but of course, that'll be a decision ultimately for the President.


Dean Reuter:  Very good. It looks like we don't have any other questions. But let me give you a minute or two to wrap up, and as you're doing that, you just mentioned cost-benefit analysis. I'm no expert, of course, but I've always been intrigued by it. And again, along the lines of separation of powers, the idea that the agency itself is conducting the cost-benefit analysis, I'm wondering if there's ever been any thinking about third-party cost-benefit analysis. Having agencies do cost-benefit analysis for one another so they're somewhat less interested. Maybe there's a sacrifice of expertise there. I don't know.


      And layered on top of that, maybe something like a lookback cost-benefit analysis, where we take a major regulation that might have been implemented 10 years ago, look at the cost-benefit analysis that was done then, and see if, in fact, it held true. But feel free not to answer that and just give us your wrap up, if you'd like, Director Ray.


Hon. Paul J. Ray:  Well, sure. You know, I'm glad you asked that last question, Dean, because it feels very strange for the OIRA Administrator to give a set of remarks that does not say much about cost-benefit analysis. We spend, obviously, a lot of time here at OIRA focused on that. So I do want to speak to that point.


      You are absolutely right. It's always good to have someone's math checked. And that's one thing that OIRA does, is check the agency's math. See if their assessment of cost and benefits holds up. When people ask me what are the most helpful comments to submit into the interagency process, among them, and probably the most helpful kind of comments actually, are attempts to come to grips with the cost and benefits of a proposed regulation in a serious way.  Most helpfully, through quantification. It is remarkable how often there are only a very few studies available that are relevant to a particular question that is at the heart of a proposed rule. And obviously, agency staff and my staff make most of those studies in that situation, but it really is incredibly helpful to receive data and analysis, for the cost benefit analysis from folks who may -- in the private sector who may be able to private sector who may be in a position to provide that kind of data and analysis. So if anyone on the call is wondering what kind of comments are helpful to submit, well, there you have an answer.


      Briefly, in closing, I just say it's really an honor to be here with you all. I was telling Dean before the call started, the issues that were important -- that we thought were important three months ago, they're still important. And yes, the world looks very different than it did three months ago. And I'm just very grateful for people like FedSoc and those who call who continue to emphasize those timeless and incredibly important topics to discuss. So thank you all very  much, and I look forward to visiting with you again soon.


Dean Reuter:  Terrific. Well, my personal thanks to you, Paul Ray. And I'll thank you on behalf of The Federalist Society, as well. OIRA Administrator Paul Ray, you've been very generous with your time. I appreciate you allowing us to squeeze a few questions in there, a handful of questions, frankly. And you've done a great job of bringing our Executive Branch Review Week to a conclusion.


      That having said, I want to thank our audience, as well, for dialing in for this call and other calls in our webinars earlier in the week. All of this is going to be recorded, memorialized, and posted on our website. And you should feel free to share those links. Of course, we'll continue next week with another round of teleforum conference calls. But until the next call, we are adjourned. Thank you very much everyone.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at