Presidential Review of Agency Rulemaking (CRS Report for Congress)
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| Release Date |
April 5, 2005 |
| Report Number |
RL32855 |
| Report Type |
Report |
| Authors |
T.J. Halstead, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
Presidential review of agency rulemaking is widely regarded as one of the most significant developments in administrative law since the introduction of the first formal review programs in the 1970s. The evolution of presidential review of agency rulemaking efforts from the Reagan era through the current Administration marks a significant assertion and accumulation of presidential power in the regulatory context. While initial presidential forays into centralized regulatory review were limited in scope, presidential review of rules has emerged as one of the most effective and controversial mechanisms by which a President can ensure the realization of his regulatory agenda.
Limited regulatory review began with President Nixon's establishment of a program requiring proposed environmental, consumer protection, and occupational and public health and safety regulations be circulated within the executive branch for comment. President Reagan issued an executive order requiring agencies to prepare inflationary impact statements for any major regulatory actions, and President Carter expanded presidential review through the issuance of an executive order requiring a regulatory analysis of all proposed major rules.
In 1981, President Reagan issued Executive Order 12,291, ushering in a new era of presidential assertions of authority over agency rulemaking efforts. E.O. 12,291 required cost-benefit analyses and established a centralized review procedure for all agency regulations. E.O. 12,291 delegated responsibility for this clearance requirement to the Office of Information and Regulatory Affairs, which had recently been created within the Office of Management and Budget as part of the Paperwork Reduction Act of 1980. The impact of E.O. 12,291 on agency regulatory activities was immediate and substantial, generating controversy and criticism. Opponents of the order asserted that review thereunder was distinctly anti-regulatory and constituted an unconstitutional transfer of authority from the executive agencies. The review scheme established in the Reagan Administration was retained by President George H.W. Bush to similar effect and controversy.
Many of the concerns voiced regarding E.O. 12,291 were assuaged by President Clinton's issuance in 1993 of Executive Order 12,866, which implemented a more selective and transparent review process. E.O. 12,866 has been retained by the current Administration, which has utilized it to implement a review regime subjecting rules to greater scrutiny than in the Clinton Administration. The actions of both the Clinton and George W. Bush Administrations in implementing the provisions of E.O. 12,866 could be taken to indicate a conception of presidential authority consonant with that conveyed by the Reagan order. However the comparatively nuanced exercise of this asserted authority by these Administrations has largely diminished arguments against the constitutionality of presidential review. Accordingly, presidential review of agency rulemaking has become a widely used and increasingly accepted mechanism by which a President can exert significant and sometimes determinative authority over the agency rulemaking process.
