Kristin E. Hickman (Minnesota) & Bridget C.E. Dooling (OSU), Delay, Politics, and Expertise in OIRA Tax Review, Minnesota Legal Studies Research Paper 2025-53, Ohio State Legal Studies Research Paper No. 958, Available at SSRN: https://ssrn.com/abstract=5871302
The opening months of the second Trump administration have featured a wide range of changes to federal policy accomplished through presidential executive orders. Among those changes, a lesser-known shift is the reinstatement of centralized review of tax regulations by the Office of Information of Regulatory Affairs (OIRA). For many years, most tax regulations were exempt from OIRA review. That changed in the first Trump administration when the Treasury Department (Treasury) and OIRA signed a memorandum of agreement bringing more tax regulations within OIRA’s oversight sphere. In the Biden administration, Treasury and OIRA reversed course, this time clearly and unequivocally exempting all tax regulations without exception. Now the script has flipped again, as a new Trump executive order has reinstated OIRA review of tax regulations. OIRA review of tax regulations is controversial, with critics complaining of long delays in the publication of important regulatory guidance and increased political meddling in decisions that ought to be made by tax experts. This article documents the first and only effort to study OIRA review of tax regulations comprehensively and empirically by analyzing the preambles of every notice of proposed rulemaking and Treasury Decision proposing or adopting temporary and final tax regulations published from 2016 through June 2023-434 documents in all, across three presidential administrations. From the data we conclude that complaints that OIRA review leads to lengthy delays and systematic politicization of tax policy are generally overblown. We additionally offer preliminary findings regarding OIRA’s contributions to transparency, and potentially to regulation quality. These findings shed light on the debate about OIRA review of tax regulations and foreshadow implications of extending OIRA review to independent regulatory agencies as well.
