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 that stand the test of time. In doing so they might help quell the current state of chaos in the administrative state. The administrative state has been subjected to many Executive Orders but only a small number have had an impact that would approach that of Executive Order 12291 which is administered by OIRA; its current bipartisan derivative prevails in part as Executive Order 12866. Executive Order 12291 required regulatory agencies to perform benefit/cost analyses of regulations and to submit them to OMB for review.
The essence of Executive Order 12291 was to give legitimacy to, and increase the jurisdiction of, the centralized regulatory review process developed and implemented by four prior Presidential Administrations.
Time Magazine has concluded that Executive Order 12291 is one of “9 Executive Orders Which Changed American History”.
Below are the views of leading scholars in the field of administrative law on Executive Order 12291:
“Second, and more innovatively, his [Reagan] Administration issued the now-iconic Executive Order 12291” (Presidential Administration in a Regime of Separated Powers; Mashaw, Berke, Yale Journal of Legislation; Vol 35) (2018)
“In a meeting sponsored by the Federalist Society Professor David Vladek of Georgetown University law school made two observations, one of which was that the Reagan Executive Order 12291, which instituted government-wide centralized regulatory review is, along with the APA, one of the two most influential documents of the regulatory state.” (OIRA Watch) (2017)
“Arguably, the most important legal document of the last 30 years that hardly anyone in America knows about was Executive Order No. 12,291, the Reagan executive order that created the modern system of White House oversight of federal regulatory policy making. The Role of the White House in Regulatory Policy Making; Peter Shane (2011)
Executive Order 12291 has become an institution because it did not overreach; it never claimed to displace the authority of an agency to make the final call on the substance of a rule. Equally, if not more importantly, the administrative processes used to implement the Order were time tested and refined before they were implemented on a government-wide basis as a result of a decade of experience gained through the Quality of Life Review initiated in 1971 which focused on EPA.
The policies and processes inherent in Executive Order 12291 were initially implemented by the first office in OMB dedicated solely to regulatory review and oversight—the Office of Regulatory and Information Policy—a functioning unit that pre-dated OIRA which upon morphing into OIRA (Office of Information and Regulatory Affairs) ensured that Executive Order 12291 did not migrate to the Executive Order graveyard. The sustainability of an Executive Order is as dependent upon it is implementation as it is on its design.
What is needed is for the academic community to research those factors which lead to the institutionalization of a select number of executive orders. An emphasis could be placed on those executive actions that have made a permanent change in governmental operations comparable to those resulting from the promulgation of Executive Order 12291. Hopefully the resultant work product would establish a quality norm for future executive actions. Adherence to accepted norms might discourage the issuance of a subsequent executive order which revokes existing ones as was the case with Executive Order 13497 :
Executive Order 13258 of February 26, 2002, and Executive Order 13422 of January 18, 2007, concerning regulatory planning and review, which amended Executive Order 12866 of September 30, 1993, are revoked.
One might wonder why Executive Order 12291’s progeny did not suffer a similar fate given the fact that the two aforementioned executive orders were minimal expansions of the base program. One answer might be that Executive Order 12291’s progeny were bipartisan.
Those interested in a detailed review of actions that lead to the institutionalization of Executive Order 12291 should read a paper titled Beyond Structure and Process: The Early Institutionalization of Regulatory Review by Professor Andrew Rudalevige.
The delineation of a quality norm for Executive Orders will in large part rest on the shoulders of OIRA, hopefully working off of treatises prepared by the academic community. In order to fulfill this mission the path breaking accomplishments of OIRA and its predecessor organizations over a half century will have to attract the attention of the Appropriation Committees and the Director of OMB. More specifically the fact that OIRA is working at a staff level of 50% of the level it had when it was established nearly forty years ago may make it impossible for OIRA to undertake an additional program initiative until which time it receives a series of multi-year funding increases designated specifically for OIRA. Merit based budgeting would most certainly support the aforementioned action.
The Ask That regulatory agencies issue a RFI (Request for Information) which solicits the views of the public on the appropriate measures to be used to institutionalize critical executive orders.
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