Response to a Comment on the “50th Anniversary of Centralized Regulatory Review”

We received a number of comments on our post on  Notice and Comment.

One comment that was shared by a number of commentators was that the formulation and implementation of centralized regulatory review as reported in the press was at times not-transparent and overly forceful.

The aforementioned statement is a fair one.  But in itself is a statement as to the need for the many regulatory practitioners who believe that centralized regulatory review is an entitlement and who have a nanosecond interest in history to spend some time learning of its maturation.  Starting from its initial conception during the Johnson Administration continuing through the Reagan Administration there was outright hostility in some areas of the government to the idea of centralized regulatory review.  Consequently it became very obvious if one were going to launch the Good Ship OIRA it was not going to happen by holding hands and singing kumbaya.

An Another View: Taming White House Review of Federal Agency Regulations

Editorial Note:  The following from the American Constitution Society

 

Our first proposal is to return the White House review process to the understanding articulated when President Reagan issued the first executive order creating a systematic process of White House review. In 1981, soon after he entered office, President Reagan issued an executive order providing for an approval process quite similar to the one that exists today under a Clinton-era executive order. The Office of Legal Counsel in the Department of Justice reviewed Reagan’s executive order for legality. In its opinion confirming the legality of the executive order, the OLC emphasized that the executive order did not purport to displace the authority of the acting agency. The OLC stated that “a wholesale displacement might be held inconsistent with the statute vesting authority in the relevant official.”

The Muscular Presidency and Executive Orders: The Challenge for Centralized Regulatory Review

Three recent Presidents, George W. Bush, Barack Obama and Donald Trump have utilized to the fullest the issuance of Executive Orders to implement their programs. There is a significant likelihood that the use of Executive Orders will continue to increase, probably at a rate considerably greater than most observers realize.

The Presidency is not subject to the Administrative Procedure Act, nor should it be; but what is the role of centralized regulatory review, the review of “regulations” by OMB, in this emerging environment? There is no demonstrable database that suggests that  OIRA has been the given the  opportunity to review Executive Orders before they are released.

The Potpourri of Executive Orders

The 50th Anniversary of Centralized Regulatory Review

Calendar Year 2019 marks the fiftieth year since Professor Alan Schmid on leave to a position in the Pentagon declared that benefit-cost analysis should be applied to regulations–a giant departure from its then use to analyze the economic merits of civil works projects such as inland waterways and dams. The foundation for centralized regulatory review (White House Office of Management and Budget review of agency regulations) was laid when, in the Johnson Administration, the Office of the Secretary of the Army began reviewing benefit-cost analyses of Corps of Engineers regulations. Two years subsequent to the publication of Professor Schmid’s paper the Office of Management and Budget initiated the first centralized regulatory review process when the Nixon Administration initiated a review of environmental, health and safety rules with an emphasis on EPA rules. The resultant program which required an analysis of the benefits and costs of a regulation was named the Quality of Life Review and was the first centralized regulatory review program.

Executive Order 12291 and Executive Order 12866: The Mainstays of Centralized Regulatory Review

Please consult  this library of pertinent information. The library is supplemented by a paper prepared by the Congressional Research Service which provides a detailed analysis of Executive Order 12866.

A Library of Selected Works Which Provide a Basis for the Retention of an Executive Order Based on a Retrospective Review of Executive Order 12291

Primary Library

Articles  Dealing With the Implementation of Executive Order 12291

Historical Articles of Interest

Politics, Benefit-Cost Analysis and Centralized Regulatory Review

Professor Revesz has written an interesting article titled Congress and the Executive: Challenging the Anti-Regulatory Narrative.  In it he concludes:

Furthermore, in a troubling development, the Trump Administration’s has turned away from cost-benefit analysis in order to carry out its anti-regulatory agenda, disregarding an established bipartisan consensus that stretched back several decades.

Whether or not one agrees with his conclusion it emphasizes the importance of preserving critical executive orders as emphasized in this post so they can be used to referee such disputes.

OIRA’s Formative Years

Read a detailed account of the ascendancy of centralized regulatory review beginning with the Johnson Administration through the Reagan Administration. The text is accompanied by footnotes which contain originial source material.

Here

 

 

The Iconic Executive Order 12291: The Precedent for the Preservation of Critical Executive Orders and Centralized Regulatory Review

 

Editors Note: See a Library of relevant articles compiled from five decades of intense debate which lead to The 50th Anniversary of Centralized Regulatory Review.  The importance of examining current developments in centralized regulatory review relative to its precursors is discussed in this post and A European View on Executive Order 12291.

 

In this age represented by a near gatling gun approach to the issuance of Executive Orders the academic community is to be complimented for devoting increasingly greater attention to the institutional standing of well-reasoned, peer reviewed Presidential instruments, including both Executive Orders and Proclamations, that stand the test of time. In doing so they might help quell the current state of chaos in the administrative state, see Administrative Law in a Time of Chaos