Executive Orders: Issuance and Revocation
12044, requiring agencies to consider the potential economic impact of certain rules and identify potential alternatives.[1]
Shortly after taking office, President Reagan revoked President Carter's order, implementing a scheme asserting much more extensive control over the rulemaking process. Executive Order 12291 directed agencies to implement rules only if “the potential benefits to society for the regulation outweigh the potential costs to society,” requiring agencies to prepare a cost-benefit analysis for any proposed rule that could have a significant economic impact.[2] This order was criticized by some as a violation of the separation of powers doctrine, on the grounds that it imbued the President with the power to essentially control rulemaking authority that had been committed to a particular agency by Congress.[3] Despite these concerns, there were no court rulings assessing the validity of President Reagan's order. In turn, President Clinton issued Executive Order 12866, modifying the system established during the Reagan Administration.[4] While retaining many of the basic features of President Reagan's order, E.O. 12866 eased cost- benefit analysis requirements, and recognized the primary duty of agencies to fulfill the duties committed to them by Congress. President George W. Bush issued two executive orders amending E.O. 12866, E.O. 13258, and E.O. 13422, both of which were revoked by President Obama in E.O. 13497.[5] President Bush's E.O. 13258 concerned regulatory planning and review, and it removed references in E.O. 12866 to the role of the Vice President, replacing several of them with a reference to the Director of the Office of Management and Budget (OMB) or the Chief of Staff to the President.[6] E.O. 13422 defined guidance documents and significant guidance documents and applied several parts of E.O. 12866 to guidance documents, as well as required each agency head to designate a presidential appointee to the newly created position of regulatory policy officer.[7] E.O. 13422 also made changes to the Office of Information and Regulatory Affairs' (OIRA's) duties and authorities, including a requirement that OIRA be given advance notice of significant guidance documents.[8] President Obama's executive order revoking E.O. 13258 and E.O. 13422 also directed the Director of OMB and the heads of executive departments and agencies to rescind orders, rules, guidelines, and policies that implemented those executive orders.[9]
- ↑ 3 C.F.R. 152 (1978).
- ↑ 3 C.F.R. 127, 128 (1981).
- ↑ See, e.g., Morton Rosenberg, Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12291, 80 Mich. L. Rev. 193 (1981); Erik D. Olsen, The Quiet Shift of Power: OMB Supervision of EPA Rulemaking Under Executive Order 12,291, 4 Va. J. Nat. Res. L. 1 (1984).
- ↑ 58 Fed. Reg. 51735 (1993).
- ↑ 74 Fed. Reg. 6113 (Feb. 4, 2009)(revoking Executive Orders 13528 and 13422).
- ↑ 67 Fed. Reg. 9385 (Feb. 28, 2002)(amending Executive Order 12866).
- ↑ 72 Fed. Reg. 2763 (Jan. 23, 2007)(amending Executive Order 12866). For more information on how the now-revoked order had impacted Executive Order 12866, see CRS Report RL33862, Changes to the OMB Regulatory Review Process by Executive Order 13422, by Curtis W. Copeland.
- ↑ 72 Fed. Reg. 2763 (Jan. 23, 2007)(amending Executive Order 12866).
- ↑ Id.
