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Rao Must Pledge to Recuse Herself in Cases Involving Regulations She Reviewed at OIRA

Statement of Amit Narang, Regulatory Policy Advocate, Public Citizen's Congress Watch Division

Note: Today, the U.S. Senate Judiciary Committee held a confirmation hearing for Neomi Rao, President Donald Trump’s pick to fill Brett Kavanaugh’s former seat on the U.S. Court of Appeals for the D.C. Circuit. Rao currently serves as administrator of the U.S. Office of Information and Regulatory Affairs (OIRA), the White House office that reviews federal regulations. Rao refused to clearly state that she will recuse herself from cases challenging regulations reviewed by OIRA while she served as its head.

Before she can be confirmed as a judge, Neomi Rao must state clearly that she will recuse herself from any cases involving challenges to regulations approved by OIRA during her tenure.

Due process and judicial rules require judges to recuse themselves from cases where participation might create even the appearance of bias or impropriety. By failing to recuse herself, Rao cannot avoid an unconstitutional appearance of partiality in cases involving regulations OIRA reviewed while she ran the agency.

OIRA is deeply involved in reviewing all significant proposed and final regulations to ensure compliance with the Trump administration’s policy objectives as well as numerous legal requirements. During Rao’s tenure at OIRA, regulatory rollbacks carried out by nearly every federal agency passed through her office and were approved – harming Americans across the nation. Rao cannot claim impartiality in any cases involving regulations that were reviewed on her watch.