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Abstract

As I will discuss below, White House decision-making and OIRA regulatory review have a hierarchical component that is at odds with the horizontal nature of collaboration. The President's constitutional duties to manage the executive branch and OIRA's role as his agent in regulatory review require strong oversight of agency regulatory activity. Rulemaking is one means by which the executive branch implements not only statutory mandates, but also presidential policy; any sitting President would be loathe to delegate his authority to a collaborative panel. Nonetheless, the benefits of collaboration can be substantial, and the President could use his authority to encourage the use of collaborative rulemaking either in connection with certain rules or at specific stages of the rulemaking process, as appropriate. OIRA, eager or not, will do what the President asks of it. However, wholesale use of collaborative rulemaking across the executive branch is unlikely to occur.

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