Notice & Comment

Building the Administrative State We Need, by K. Sabeel Rahman

*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here.

It has been a pleasure to read the thoughtful commentary from scholars and practitioners in this Notice & Comment blog series on modernizing regulatory review. The contributions provide a range of important critiques and recommendations to inform the implementation of the President’s latest Executive Order on Modernizing Regulatory Review (EO 14094) and the new proposed revisions to OMB Circular A-4 on regulatory impact analysis. From 2021 to 2023, I had the privilege of leading the modernizing regulatory review efforts at the Office of Information and Regulatory Affairs (OIRA)—first as Senior Counselor, and then as the Associate Administrator, delegated the duties of the Administrator. These reforms represent the first major update to the regulatory review process and methodologies in over twenty years. Under the leadership of OIRA Administrator Ricky Revesz and the stellar OIRA team, I’m confident the debates will inform a more effective, up-to-date approach to regulatory good governance. 

In this concluding blog post to the series, I would like to situate OIRA’s proposed reforms and the robust debate around them in context of a broader challenge that administrative law scholars and practitioners face in this current moment: that of reimagining the administrative apparatus to tackle the scale and severity of the challenges that the public faces. From the escalating climate crisis to persisting repercussions of the pandemic, to the durable systemic inequities that structure our economy and concentrate harms and opportunities disproportionately along economic, racial, gender, and geographic lines, we face a series of complex systemic crises as a country. Addressing these crises with urgency and effectiveness should be the central task for public policy in the years ahead—as President Biden’s Day One Memorandum on regulatory review from January 2021 argues. In turn, this means that debates about regulatory policy, process, and structure should, in my view, take as their north star the need to evolve or reinvent our administrative apparatus to build the kinds of institutions and processes we need to meet those challenges.

Reforms to the regulatory review process and regulatory impact analyses—the bread and butter of OIRA review—are important to this larger project, but they are only one piece of a much larger task ahead. Understanding the new EO 14094, and the new proposed A-4, in this context is important to informing both our critiques of those shifts, and the ways in which we ought to build on these proposals in the years ahead. 

Good governance reimagined 

For scholars and practitioners enmeshed in the day-to-day practice of regulatory review and analysis, the concept of “good governance” is often an important touchstone. Good governance conventionally captures a cluster of commitments: to participation, transparency, analysis, and neutrality, among others. But in light of the challenges ahead, we should reconsider what we mean by “good governance” in a broader context. For me, good governance revolves around three core principles: Efficacy, Evidence, and Equity. Much of the Biden Administration’s broader regulatory reform agenda—including the OIRA-specific reforms, but extending well beyond—can be understood as steps towards a reimagining of the administrative apparatus along these lines. 


Efficacy connotes the value of impact: we need public policies—and by extension, systems of public administration—that can work effectively, empowered and built to operate at scale and with deliberate speed, with an orientation to delivering tangible results for the communities most in need, in ways that are up to the task of overcoming the systemic challenges ahead. Some of what the Biden Administration has done with the administrative state speaks to this urgency, for example in the creation of new coordination processes within the Executive Office of the President (EOP). 

In the early months of the Administration, the Office of Management and Budget (OMB) implemented a fast-track process for OMB and White House review of the documents implementing the American Rescue Plan, moving billions of dollars of urgent relief—including a massive rethink of the safety net—at the height of the COVID-19 pandemic in two-weeks-or-less timeframes. Similarly, with the passage of a host of major investment bills on infrastructure, clean energy, and semiconductors, the Administration has created new coordination bodies within the EOP to synchronize dozens of disparate grant programs and funding streams into a coherent approach to infrastructure investment and industrial policy that seeks to weave together investments in communities and sectors with broader goals on equity, regional revitalization, lifting worker standards, and more. The Administration’s focus on competition policy similarly has involved not just a host of new regulations but also the creation of a new Competition Council whose function is both to coordinate and to champion a new orientation to public policy within the Executive Branch. These measures are all variations on the familiar Presidential authority to coordinate and direct interagency initiatives, but they also represent a concerted effort to synthesize individual interventions into a larger coherent strategy for reshaping political economic arrangements in a more dynamic and inclusive direction.

The Administration’s focus on service delivery and user experience represents a different, but equally critical, shift in orientation, focused on delivering real results in tangible ways. Executive Order 14058 on customer experience tasked OMB with driving a process to redesign some of the most critical government programs upon which Americans depend in the most difficult of life experiences—from disaster relief to supports for new mothers—to make sure that these programs are as seamless as possible, getting supports and benefits to those most in need with as few bureaucratic hurdles as needed. OIRA’s own authorities to review and approve government forms and enrollment processes is similarly focused on reducing “administrative burdens” that unnecessarily block communities from accessing benefits to which they are entitled—burdens that result in unsurprising and extremely troubling racialized and gendered disparities. 

In the modernizing regulatory review context, this same ethos is reflected in EO 14094’s adjustments to the scope of OIRA review, raising the significance threshold to $200 million to prioritize the most in-depth forms of analysis and review on the rules that are the largest in impact, and in the updates to Circular A-4 that help connect regulatory impact analysis to system dynamics like business cycles, market structure, and governmental service delivery. 


The value of evidence-based policymaking may be more familiar as a touchstone in traditional discussions about regulatory analysis. And as several contributions to the symposium have noted, the modernizing regulatory review proposals provide some important advances in improving and broadening the evidence base for regulations by calling for more holistic approach to analysis, which could help agencies take better account of non-market valuesenvironmental harms and cumulative impacts, and uncertain or stochastic effects. More can be done on each of these fronts as the other posts note, and the new A-4 could open the door to these important innovations. The proposed A-4 also includes a more robust discussion of hard-to-quantify impacts, and updates to key parameters like the discount rate to improve the empirical and methodological foundations for regulatory analysis. 

But more broadly, these updates to the OIRA process should be seen as operating in tandem with other efforts to build a more long-term evidence base for regulatory policy, outside of individual regulations. The Evidence Act of 2018 and upcoming implementing regulations, alongside OMB M-memos on evidence-based policymaking, collectively envision a more holistic approach to evidence, where agencies are meant to be developing longer-term learning agendas, investing in long-term deepening of data and information that can inform policy design, strategy, and analysis. In the equity domain (about which more in a moment), it is notable that the administration has also embarked on a long-overdue effort to modernize the design and collection of race and ethnicity data, and has proposed a balanced approach to improving the collection of—and safeguards for—data on sexual orientation and gender identity. 


One of the central themes in the updates to the regulatory review process involves a deeper approach to analyzing inequality. The revised Circular A-4 includes a much-expanded discussion of distributional analysis. The new A-4 also includes, as noted above, a wider range of methodologies for analyzing hard-to-quantify impacts, in a more holistic approach to evidence. These adjustments are essential to improving how agencies see and respond to the needs of vulnerable and underserved communities. Taken together, these measures point towards an analytical approach that, as some of the symposium commentators have noted, provides a better foundation for equality-advancing policy analysis.  

A related set of reforms under the regulatory reform executive order emphasize the importance of greater participation by underserved and vulnerable communities earlier in the regulatory design and policy strategy-setting process. In addition the Executive Order seeks to improve ability of communities to petition agencies and participate in meetings with OIRA itself, and develop improvements to the notice and comment process for the digital (and AI) era. These measures provide a starting point for a broader effort that symposium commentators and others in the literature have pushed for on expanding participation.

These interventions on analysis and participation are part of a broader attempt by the Biden Administration to embed equity in the administrative apparatus. As defined in both EO 13985 on advancing equity and the more recent EO 14091 reaffirming and extending the equity work of the administration, equity for the Administration is understood multidimensionally, encompassing the wide range of lived experiences of barriers and systemic exclusion along lines of race, gender and sexual orientation, geography, disability, persistent poverty, and more. These efforts have emphasized a broader “change management” effort to build up the capacity and orientation of agencies in developing longer-term strategies for advancing equity, including by developing annual equity action plans, collecting data to inform analysis of inequities that policy should be attuned to, committing to more robust upstream engagement with affected communities in shaping policy, and deepening the commitment to service delivery and attention to systemic causes of inequity. These measures represent a deliberate evolution of core concepts of good governance to focus more directly on the challenges vulnerable and underserved communities face. 

Building the government we need 

As some of the commentators have noted, there are several areas of methodological debate around specific proposals in the redrafted A-4, and concerns that the proposals my themselves be reaching too far. More broadly, some comments caution that the enterprise of A-4 modernization itself may not yield as much change as it may seem. RIAs themselves are not necessarily widely-read, and the efforts for improving analysis do come with tradeoffs given limited agency capacity. At the same time, others warn that even the expansive rewrite of Circular A-4 may not change enough of how agencies operate given the urgency of the policy challenges ahead.  

Ultimately, my own view, perhaps unsurprisingly, is that these specific modernization proposals are well-grounded and overdue. But to the extent that the regulatory modernization efforts may seem simultaneously to do too much and too little, that concern stems, I think, from the problem of focusing too narrowly on the OIRA process. Situating the regulatory modernization work in this larger context of the Biden Administration’s various initiatives to promote efficacy, evidence, and equity helps paint a bigger picture of administrative innovation to build the kind of Executive branch institutions we need in the years ahead. 

But it is also true that the task of innovating a new administrative apparatus does require much more than what the Administration has put forth to date. Agencies need to be more thoroughly (and consistently) resourced by Congress to actually hire and retain the kind of staff expertise needed to execute the tasks ahead. The renewed interest in industrial policy or service delivery should be more widely dispersed across the Executive Branch, and institutionalized along the lines the Presidential Management Agenda envisions. As Congress considers regulatory reform proposals, statutory updates could be imagined that expand the resources and mandates of the agencies to take equity, evidence, and efficacy seriously, and institutionalize these principles in a sustained way. And all this is happening in the shadow of a competing vision of regulatory reform that is very much premised on deconstructing these institutions and their capacities—whether through austerity budgets, attacks on civil service protections, or the arrogation of authority to the courts through the so-called “major questions doctrine.”  It is precisely because the foundations of administration seem under threat that it will be incumbent on scholars and practitioners to build on these modernization efforts and help imagine what a renewed and modern administrative apparatus ought to look like more broadly.  

K. Sabeel Rahman is a Professor of Law at Cornell Law School, and co-chair of the Law and Political Economy Project.

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