No Agency Above the Constitution: The Case for Expanding OIRA Oversight

President Trump’s February 18, 2025, executive order, "Ensuring Accountability for All Agencies," marks a long-overdue correction to a category error that has persisted for nearly a century. The idea that independent regulatory agencies are exempt from presidential oversight is not just conceptually confused, it is constitutionally untenable. The executive order extends the Office of Information and Regulatory Affairs (OIRA) review process, previously applied only to executive agencies, to so-called independent agencies such as the SEC, FTC, and FCC. This move has been characterized as aggressive by critics who worry about politicizing expert rulemaking. But such criticism presumes a kind of metaphysical independence for these agencies that the Constitution does not and cannot support. Indeed, the expansion of OIRA review is not simply permissible, it is necessary. It restores constitutional accountability, ensures coherent regulatory policy across the executive branch, and reins in an administrative apparatus that has grown both unmoored and unaccountable.

At the heart of the matter is a simple but underappreciated fact: all agencies that execute federal law are part of the executive branch. Article II of the Constitution vests all executive power in the President, not some, not most, but all. The so-called unitary executive theory is not an exotic innovation but a straightforward reading of the constitutional text. If one reads Article II seriously, then it follows that any officer who executes the law must ultimately be supervised by the President. Independent agencies, by issuing rules with the force of law, performing enforcement actions, and adjudicating disputes, wield precisely this sort of executive power. Their insulation from the President may be a statutory construct, but it cannot be a constitutional one. At best, it is a legal fiction maintained by tradition and institutional inertia.

President Trump’s executive order reasserts this constitutional baseline. It does not attempt to micromanage independent agencies or to dictate their policy conclusions. Rather, it requires them to submit proposed and final significant regulatory actions to OIRA for review. This process ensures that the President is informed of, and can coordinate, major regulatory efforts across the federal government. The idea is not to politicize regulation but to unify it under a single accountable officer, the President, as the Constitution requires.

One might object that independence from the President serves a vital function: shielding agencies from political interference. But this argument assumes what it needs to prove. Political accountability is not a vice but a virtue in a constitutional republic. The premise of representative government is that those who wield governmental power must ultimately answer to the electorate. Agencies that are structurally isolated from both Congress and the President become effectively answerable to no one. They form what some scholars call a "headless fourth branch," issuing binding edicts without either electoral legitimacy or democratic oversight. This arrangement may be efficient, but it is not constitutional.

The unitary executive is not merely a theoretical ideal; it is a functional necessity. Without presidential oversight, the federal bureaucracy becomes fragmented, with each agency pursuing its own policy agenda without regard to the larger strategic picture. Consider the years in which the FCC regulated broadband as a utility while the FTC simultaneously promoted deregulatory competition in digital markets. These were not simply disagreements over policy. They were instances of conflicting regulatory mandates imposed on the same private actors by supposedly independent arms of the same government. This fragmentation imposes real costs: uncertainty for industry, duplication of effort, and often contradictory compliance requirements. Unified executive review is the only mechanism by which such incoherence can be prevented.

OIRA, housed within the Office of Management and Budget, is the appropriate instrument for this task. It has four decades of institutional expertise in conducting cost-benefit analyses, coordinating interagency review, and ensuring that regulations do more good than harm. Since its creation under the Paperwork Reduction Act of 1980 and Reagan’s Executive Order 12291, OIRA has served as a vital checkpoint against hasty or excessive regulation. Subjecting independent agencies to its review is not a radical innovation, it is an extension of best practices to all arms of the executive.

This point bears repeating. Independent agencies are not independent in the ontological sense. They are created by statute, funded by Congress, and their officials are appointed by the President. Their insulation is relative, not absolute. As the Supreme Court has acknowledged in decisions like Free Enterprise Fund v. PCAOB and Seila Law v. CFPB, the President must retain meaningful oversight over all who exercise executive authority. The logic is clear: if the President is to be held accountable for the execution of the laws, then he must have the tools necessary to oversee those who execute them. Requiring independent agencies to submit their rules for review is the least intrusive, most reasonable means of preserving that oversight.

Legal precedent supports this view. A 1981 opinion from the Department of Justice’s Office of Legal Counsel concluded that the President may require independent agencies to perform cost-benefit analysis and submit to regulatory review. Likewise, the Administrative Conference of the United States and the American Bar Association have both recommended extending cost-benefit review to all agencies, including those deemed independent. The logic is pragmatic as well as principled: rules that affect billions of dollars in economic activity should not be issued in a black box.

The practical consequences of independence without oversight are significant. Independent agencies have, in many cases, become regulatory juggernauts, issuing sweeping rules without conducting rigorous economic analysis. The result is a bloated regulatory code, estimated to cost the U.S. economy upwards of two trillion dollars annually. Many of these rules escape scrutiny not because they are sound but because they are exempt. This creates an incentive structure in which agencies can wield tremendous power with minimal accountability. Expanding OIRA review introduces a necessary discipline. It ensures that major rules undergo scrutiny not just for legality, but for efficacy and efficiency.

The executive order’s critics claim that it will politicize independent agencies. But this assumes a false dichotomy between expertise and accountability. Nothing in the OIRA review process prevents an agency from offering technical justifications for its rules. Indeed, by requiring those justifications to be made explicit, OIRA helps expose regulatory reasoning to rational scrutiny. The process does not replace expert judgment with political whim. It disciplines expert judgment by demanding that it be explained, quantified, and coordinated with the President’s broader policy objectives.

The expansion of OIRA also enhances transparency. Under the traditional regime, many independent agency rules were developed without meaningful public input until they were already well underway. OIRA review opens the process to interagency comment and public awareness. Meetings with stakeholders, disclosure of draft rules, and publication of cost-benefit analyses create a more informed and participatory rulemaking environment. This does not weaken expertise, it legitimizes it.

The deeper philosophical point is this: in a constitutional democracy, no official who exercises the coercive power of the state can do so without being accountable to someone who is, in turn, accountable to the people. The insulation of independent agencies from presidential oversight violates this chain of responsibility. It allows unelected officials to wield enormous power with minimal constraint. That may be comfortable for regulators, but it is corrosive to republican government.

President Trump’s executive order reasserts a basic principle: that all power exercised by the federal government must ultimately trace back to the people through their elected representative. OIRA review is not a panacea, but it is a start. It ensures that independent agencies do not become rogue actors within the executive, issuing rules that contradict the President’s policies or escape economic scrutiny. It creates a system in which major regulatory actions are subject to analytical rigor and democratic oversight.

In short, expanding OIRA is not just legally sound and pragmatically wise, it is constitutionally required. It restores coherence to a fragmented bureaucracy, disciplines the regulatory state, and reaffirms the central promise of the Constitution: that those who govern must do so in the name of the people, and under the supervision of their chosen Executive.

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