The impact of Executive Order 13,422 on presidential oversight of agency administration

George Washington Law Review

Volumn 76, Issue 5, 2008, Pages 1292-1307

  Hissam, Michael ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 54549120338     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (112)

1. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 23, 2007).
2. Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3440 (Jan. 25, 2007) [hereinafter Final Bulletin]. Although the Final Bulletin did not appear in the Federal Register on January 18, it was announced on that day, when Executive Order 13,422 was released. See OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, OMB BULL. NO. 07-02, ISSUANCE of OMB's "FINAL BULLETIN FOR AGENCY GOOD GUIDANCE PRACTICES" (2007), available at http://www.whitehouse.gov/omb/memoranda/fy2007/m07-07.pdf.
3. See generally CURTIS W. COPELAND, CONG. RESEARCH SERV., CHANGES TO THE OMB REGULATORY REVIEW PROCESS BY EXECUTIVE ORDER 13422 (2007) (discussing changes made by Executive Order 13,422 and how the order represents an expansion of presidential authority over rulemaking agencies);
4. OMB WATCH, A FAILURE TO GOVERN: BUSH'S ATTACK ON THE REGULATORY PROCESS (2007), http://www.ombwatch.org/regs/PDFs/FailuretoGovern.pdf (describing the changes resulting from Executive Order 13,422 and the Final Bulletin and analyzing potential impacts on the regulatory system).
5. 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 498 (4th ed. 2002).
6. See, e.g., Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 FORDHAM URB. L.J. 1257, 1263-64 (2006) (noting that "centralized review of agencies' regulations . . . has been part of the rulemaking process since the early 1970s").
7. See id. at 1264. In fact, President Nixon's assignment of additional functions to the OMB was part of a general transformation of that office from the "Bureau of the Budget" to something more capable of "bring[ing] recalcitrant cabinet departments and agencies into line." Christopher S. Yoo et al., The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601, 657-58 (2005).
8. See Yoo, supra note 6, at 659.
9. Exec. Order No. 12,044, 3 C.F.R. 152 (1979).
10. See Copeland, supra note 5, at 1264.
11. Exec. Order No. 12,291, 3 C.F.R. 127 (1982), reprinted in 5 U.S.C. § 601 (1988), revoked by Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. § 601 (2000).
12. Exec. Order No. 12,498, 3 C.F.R. 323 (1986), reprinted in 5 U.S.C. § 601 (1988), revoked by Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. 5 601 (2000); 1 PIERCE, supra note 4, at 498.
13. See 1 PIERCE, supra note 4, at 498. A rule was defined as "major" if it would impose a cost on the economy of $100 million or more, result in a major increase in costs or prices, or threaten U.S. economic competitiveness. Exec. Order 12,291 § 1(b), 3 C.F.R. at 127-28.
14. See Copeland, supra note 5, at 1265-66.
15. Id. at 1265; see also 1 PIERCE, supra note 4, at 499. As Copeland has noted, OIRA's influence on rulemaking was bolstered by its "organizational position within OMB, the agency that reviews and approves the rulemaking agencies' budget requests." Copeland, supra note 5, at 1265.
16. See Copeland, supra note 5, at 1266 ("Although some believed that OIRA's authority did not go far enough . . . most of the concerns were that the expansion had gone too far.").
17. See id at 1266-67. As Professor Pierce has noted, subsequent developments removed any doubt "concerning the President's power to influence Executive Branch policymaking through the kinds of controls on the informal rulemaking process implemented in Executive Orders 12,291 and 12,498." 1 PIERCE, supra note 4, at 500; see Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984).
18. See Copeland, supra note 5, at 1267 ("[However] the office's statutory authority under the [Paperwork Reduction Act] was not affected and it continued to receive an appropriation via [the] OMB.").
19. Id. at 1270.
20. Exec. Order No. 12,866 § 6(b)(1), 3 C.F.R. at 645 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
21. Id. at § 3(f), 3 C.F.R. at 641-42.
22. COPELAND, supra note 3, at 2.
23. Exec. Order No. 12,866 § 1, 3 C.F.R. at 639.
24. Id.
25. Id.
26. See COPELAND, supra note 3, at 3.
27. Exec. Order No. 12,866 § 5(a), 3 C.F.R. at 647; see COPELAND, supra note 3, at 3.
28. Exec. Order No. 12,866 § 4(d), 3 C.F.R. at 645; see COPELAND, supra note 3, at 3.
29. Exec. Order No. 12,866 § 4(c), 3 C.F.R. at 642.
30. President Bush did issue Executive Order 13,258, which removed certain duties from the Vice President's Office and placed them with his Chief of Staff. Exec. Order No. 13,258, 3 C.F.R. 204 (2003). This Order, however, made no substantive change to the OIRA review process. See COPELAND, supra note 3, at 1 n.3.
31. See John M. Broder, Jubilant Democrats Assume Control on Capitol Hill, N.Y. TIMES, Jan. 5, 2007, at A1; Adam Nagourney, Democrats Take House, N.Y. TIMES, Nov. 8,2006, at A1.
32. See supra notes 1-2 and accompanying text.
33. See, e.g., Genevieve Smith, With a Hostile Congress Pushing Back Against White House Initiatives, What's a President to Do? Govern by Executive Fiat and (Anti-)regulatory Edicts, AM. PROSPECT, Feb. 26, 2007, http://www.prospect.org/cs/articles?articleId=12515.
34. But see John M. Broder, A Legacy Bush Can Control, N.Y. TIMES, Sept 9, 2007, 4 (Week in Review), at 1 (suggesting increased regulatory activity is simply a natural phenomenon as a President's time in office draws to a close).
35. Amending Executive Order 12866: Good Governance or Regulatory Usurpation?: Hearing Before the H. Comm. on Science and Technology, 110th Cong. 6 (2007) [hereinafter Hearing] (statement of Sally Katzen, Adjunct Professor, University of Michigan Law School), available at http://democrats.science.house.gov/Media//File/Commdocs/hearings/2007/oversight/ 13feb/katzen_testimony.pdf.
36. Id. at 2, 6.
37. Exec. Order No. 13, 422 § 1(a)(1), 72 Fed. Reg. 2763, 2763 (Jan. 23, 2007).
38. Id.
39. See COPELAND, supra note 3, at 4. Of course, the Clinton Administration Executive Order also included a reference to "where applicable, the failures of private markets." See Exec. Order No. 12,866 § 1(b)(1), 3 C.F.R. 638, 639 (1994), reprinted as amended in 5 U.S.C. § 601 (2000). The language in the Bush Order requiring an assessment of whether "any new regulation is warranted," however, is entirely new. See Exec. Order No. 13,422 § 1(a)(1), 72 Fed. Reg. at 2763.
40. See supra text accompanying notes 22-24.
41. OMB WATCH, supra note 3, at 6, 11-13.
42. Exec. Order No. 13,422 § 5(b), 72 Fed. Reg. at 2764.
43. Exec. Order No. 12,866 § 6(a)(2), 3 C.F.R. at 645.
44. See COPELAND, supra note 3, at 6. Of course, Copeland also notes that this impact may be unclear if "most of the regulatory policy officers are already presidential appointees." Id.
45. Exec. Order No. 13,422 § 4(b), 72 Fed. Reg. at 2764.
46. Robert Pear, Bush Directive Increases Sway on Regulation, N.Y. TIMES, Jan. 30, 2007, at A1.
47. COPELAND, supra note 3, at 7. This first question is somewhat of an academic debate, because according to the personnel directory of regulatory departments and agencies (known as the "Plum Book"), almost all agency presidential appointees (the field from which RPOs can be selected) are already subject to Senate confirmation. See id.
48. Id. at 8.
49. Id.
50. See supra note 28 and accompanying text.
51. Exec. Order No. 13,422 § 4(b), 72 Fed. Reg. 2763, 2764 (Jan. 23, 2007).
52. COPELAND, supra note 3, at 8.
53. Id.
54. Id. at 8-9.
55. Exec. Order No. 13,422 § 4(c), 72 Fed. Reg. at 2764.
56. COPELAND, supra note 3, at 8.
57. Exec. Order No. 13,422 § 7, 72 Fed. Reg. at 2764. The OMB's Final Bulletin explained the context for this expansion of presidential oversight: "Since early in the Bush Administration, OMB has been concerned about the proper development and use of agency guidance documents." Final Bulletin, supra note 2, at 72 Fed. Reg. 3432, 3432 (discussing authorities raising concerns about burdensome guidance practices).
58. Exec. Order No. 13,422 § 7, 72 Fed. Reg. at 2765.
59. Id.
60. Id. § 3(g), 72 Fed. Reg. at 2763.
61. Final Bulletin, supra note 2, at 72 Fed. Reg. 3432, 3434.
62. Id.
63. Id. The only difference between the two definitions is that guidance documents are significant if they "may reasonably be anticipated to" lead to one of the four results, Exec. Order No. 13,422 § 3(h), 72 Fed. Reg. at 2763-64, whereas rulemaking is significant where it is "likely to result in a rule that may" lead to one of the four results, see Exec. Order No. 12866 § 3(f), 3 C.F.R. 638, 641-42 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
64. See supra note 20 and accompanying text.
65. See COPELAND, supra note 3, at 10.
66. See id. at 10 n.22 (commenting that the Occupational Safety and Health Administration, for example, issued 3,374 guidance documents between 1996 and 2000).
67. Id. at 11; see also Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000).
68. COPELAND, supra note 3, at 11.
69. Final Bulletin, supra note 2, at 72 Fed. Reg. 3432, 3435.
70. COPELAND, supra note 3, at 11.
71. See id. at 5.
72. See id. at 1.
73. See, e.g., id. at 13-14 ("[T]he ultimate impact of these changes to the regulatory review process is unclear, and will likely depend on how the changes are implemented by OIRA and the agencies.").
74. Id.
75. See id. at 5.
76. Exec. Order No. 12,866 § 1(b), 3 C.F.R. 638, 639 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
77. Hearing, supra note 33, at 6 (statement of Katzen).
78. See, e.g., COPELAND, supra note 3, at 5 (noting that critics view the "specific market failure" as a new standard for regulatory initiation).
79. See OMB WATCH, supra note 3, at 8.
80. Id. Susan Dudley's nomination, and eventual recess appointment as OIRA Administrator, has been a significant source of controversy in its own right See Stephen Barr, Signs Brew of a Heated Debate over OMB Nominee, WASH. POST, Sept. 13, 2006, at D4; Press Release, OMB Watch, Bush Recess Appointment Threatens Public Protections (Apr. 4, 2007), http://www.ombwatch.org/article/articleview/3799/1/455?TopicID=1. Groups like OMB Watch stridently opposed Dudley's confirmation by the Senate, largely examining the record she developed while working at the pro-business Mercatus Center at George Mason University. See Barr, supra. In making its point about Dudley's market-failure views, OMB Watch emphasized, for example, Dudley's position that federal air bag regulations should have been unnecessary if they truly saved lives and customers demanded them. OMB WATCH, supra note 3, at 24 n.6.
81. See COPELAND, supra note 3, at 5 (discussing the example of the Clean Air Act, which requires regulations to be based solely on protecting human health).
82. OMB WATCH, supra note 3, at 7.
83. See Exec. Order No. 12,866 § 1, 3 C.F.R. 638, 639 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
84. Exec. Order No. 13,422 § 1(a), 72 Fed. Reg. 2763, 2763 (Jan. 23, 2007) (emphasis added).
85. See, e.g., COPELAND, supra note 3, at 4-5.
86. See OMB WATCH, supra note 3, at 12-13.
87. Id. at 13.
88. Id.
89. Exec. Order No. 13,422 § 5(b), 72 Fed. Reg. at 2764.
90. Exec. Order No. 12,866 § 6(a)(2), 3 C.F.R. 638, 645 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
91. OMB WATCH, supra note 3, at 12.
92. See id. at 22.
93. See id.
94. See id. at 7.
95. See, e.g., id; Hearing, supra note 33, at 10 (statement of Katzen).
96. Hearing, supra note 33, at 10 (statement of Katzen).
97. Id.
98. See supra note 82 and accompanying text.
99. See supra notes 73-74 and accompanying text.
100. See Hearing, supra note 33, at 13 (statement of Katzen) ("[T]he Executive Order should not become a codification of an anti-regulatory manifesto. This is not good government."); OMB WATCH, supra note 3, at 5.
101. See COPELAND, supra note 3, at 8-9.
102. Id.
103. Id.
104. Id. at 9.
105. Copeland, supra note 5, at 1287.
106. OFFICE OF MGMT. & BUDGET, STIMULATING SMARTER REGULATION: 2002 REPORT TO CONGRESS ON THE COSTS AND BENEFITS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES 14 (2002).
107. See Copeland, supra note 5, at 1286-87.
108. Id. at 1287-90, 1297.
109. Even critics of the Order commonly note that the policies announced therein were emblematic of longstanding Bush Administration efforts toward exerting greater control over agency regulation. See, e.g., Hearing, supra note 33, at 9 (statement of Katzen); OMB WATCH, supra note 3, at 22.
110. Copeland, supra note 5, at 1304-05.
111. Id.
112. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2248-49 (2001).