Presidential Review of Agency Rulemaking
CRS Report for Congress
Presidential Review of
April 5, 2005
American Law Division
Congressional Research Service ˜ The Library of Congress
Presidential Review of Agency Rulemaking
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 1970’s. 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
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.
In troduction ..................................................1
Regulatory Review Under E.O. 12,291.............................2
A. Reagan Administration...................................2
B. George H.W. Bush Administration..........................4
Regulatory Review Under E.O. 12,866.............................5
A. Clinton Administration...................................5
B. George W. Bush Administration............................9
Presidential Review of Agency Rulemaking
Steadily increasing presidential involvement in agency rulemaking efforts has
often been cited as one of the most significant developments in administrative law
and domestic policymaking since the introduction of the first formal review programs
in the 1970’s.1 The evolution of presidential review of agency rulemaking efforts
since the Reagan era in particular constitutes 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 widely-used and controversial mechanisms by which a
President can ensure the realization of his regulatory agenda.
The first formal regulatory review program was instituted by President Nixon
in 1971 through the establishment of a “Quality of Life Review” program designed
to improve “the interagency coordination of proposed agency regulations, standards,
guidelines and similar materials pertaining to environmental quality, consumer
protection, and occupational and public health and safety.”2 Under this program
agencies were required to submit “significant” proposed and final regulations to the
Office of Management and Budget (OMB), which then disseminated them to affected
agencies for comment. President Ford extended regulatory review through Executive
Order 11,821, requiring agencies to prepare “inflation impact statements” for any
“major” regulatory action.3 President Carter expanded presidential review through
the issuance of Executive Order 12,044, which required agencies to prepare a
“regulatory analysis” of all proposed “major rules,” examining the potential
economic impact of the proposal and an evaluation of alternative regulatory options.4
President Carter took the additional step of forming the Regulatory Council, which
1 See Jeffrey S. Lubbers, “A Guide to Federal Agency Rulemaking,” Third Edition,
American Bar Association, p.19 (1998); Steven Croley, “White House Review of Agency
Rulemaking: An Empirical Investigation,” 70 U. Chil L. Rev. 821 (2003).
2 See “Agency Regulations, Standards, and Guidelines Pertaining to Environmental Quality,
Consumer Protection, and Occupational and Public Health and Safety,” Memorandum to
Heads of Departments and Agencies from George P. Schultz, Director, OMB (Oct. 5, 1971)
(available at [http://www.thecre.com/ombpapers/QualityofLife1.htm], visited on April 3,
3 39 Fed. Reg. 41,501 (Nov. 29, 1974).
4 43 Fed. Reg. 12,661 (March 24, 1978). The “major rule” designation was accorded to all
proposed rules deemed likely to have an annual economic impact of 100 million dollars or
was tasked with coordinating agency rulemaking activities in an effort to avoid
duplicative or conflicting regulatory regimes.5
While the programs established in the Nixon, Ford, and Carter Administrations
illustrate a successive increase in the centralization of regulatory review with the
Executive Office of the President, these programs are generally characterized as
having been “designed primarily to facilitate interagency dialogue.”6 However, these
programs laid the foundation for the implementation of a much more extensive and
vigorous review process under the Reagan Administration.7
Regulatory Review Under E.O. 12,291
A. Reagan Administration.
Shortly after taking office, President Reagan issued Executive Order 12,291, “to
reduce the burdens of existing and future regulations, increase agency accountability
for regulatory actions, provide for Presidential oversight of the regulatory process,
minimize duplication and conflict of regulations, and insure well-reasoned
regulations.”8 E.O. 12,291 required agencies to submit any proposed major rule to
OIRA for review, along with a “regulatory impact analysis” of the rule, including a
cost-benefit analysis. The Reagan order was significant in comparison to earlier
efforts in this context, in that it centralized review within OMB and had the practical
effect of giving OMB a substantial degree of control over agency rulemaking.
President Reagan expanded this review scheme with the issuance of Executive Order
12,498, which required agencies to submit an annual plan listing proposed regulatory
actions for the year to OMB for review. This procedure enabled OMB to exert
influence over agency regulatory efforts at the earliest stages of the process and to
ensure that agency actions were in accord with the aims of the Administration.
Additionally the order created a “Task Force for Regulatory Relief”which was tasked
with reviewing and seeking the elimination of unneeded or ineffective regulations.
In practical effect, the impact of the Reagan orders on agency regulatory activities
was immediate and substantial. Under the order, OIRA reviewed over 2,000
regulations per year and returned multiple rules for agency reconsideration.9 The
practical effect of this rigorous review process was to sensitize agencies to the
5 Lubbers, n.1, supra, at 21.
6 Robert V. Percival, “Presidential Management of the Administrative State: The Not-So-
Unitary Executive,” 51 Duke L.J. 963, 990 (2001).
7 See, e.g., William F. West, “The Institutionalization of Regulatory Review: Organizational
Stability and Responsive Competence at OIRA,” Presidential Studies Quarterly 35, No. 1
at p.80 (March 2005).
8 Exec. Order 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981).
9 Office of Management and Budget, “Draft Report to Congress on the Costs and Benefits
of Federal Regulations,” 67 Fed. Reg. 15014, 15018 (March 28, 2002).
regulatory agenda of the Reagan Administration, largely resulting in the enactment
of regulations that reflected the goals of the Administration.10
Not surprisingly, this review process generated criticism and controversy. In
particular, the review scheme was seen by some as having a distinct anti-regulatory
bias, leading to charges that the orders constituted an unlawful transfer of authority
from the agencies to OMB; that the review process was too secretive and subject to
influence by private interests; that OMB lacked the resources or expertise to properly
assess submitted regulations; and that the required cost-benefit analysis did not take
into account the unquantifiable social benefits of certain types of regulations.11
Additionally, E.O. 12,291 was criticized on the grounds that it allowed OIRA to
delay indefinitely rules under review, unless a countervailing statutory deadline or
court order mandated promulgation.12
The order attempted to mitigate legal concerns regarding usurpation of agency
decisionmaking authority by mandating that none of its provisions were to “be
construed as displacing the agencies’ responsibilities delegated by law.”13
Additionally, the Department of Justice’s Office of Legal Counsel (OLC) drafted an
opinion shortly before the publication of E.O. 12,291, supporting its
constitutionality.14 The OLC asserted that the provisions of the order were valid as
an exercise of the President’s power to “take care that the laws be faithfully
executed,” additionally relying upon its determination that “an inquiry into
congressional intent in enacting statutes delegating rulemaking authority will usually
support the legality of presidential supervision of rulemaking by executive agencies.15
The opinion acknowledged, however, that “the President’s exercise of supervisory
powers must conform to legislation enacted by Congress,” and went on to state that
presidential “supervision is more readily justified when it does not purport to wholly
displace, but only to guide and limit, discretion which Congress has allocated to a
particular subordinate official.”16
10 See, e.g, Elena Kagan, “Presidential Administration,” 114 Harv. L. Rev. 2245, 2279
11 For a thorough overview of the criticisms leveled at the Reagan orders, see Richard H.
Pildes, Cass R. Sunstein, “Reinventing the Regulatory State,” 62 U. Chi. L. Rev. 1, 4-6
(1995); Elena Kagan, “Presidential Administration,” n.10, supra, at 2279-80. But see, Frank
B. Cross, “Executive Orders 12,2291 and 12,498: A Test Case in Presidential Control of
Executive Agencies,” 4 J.L & Pol. 483 (1988) (supporting constitutionality and utility of
review under these orders).
12 See, e.g., Environmental Defense Fund v. Thomas, 627 F.Supp. 566 (D.D.C. 1986)
(holding that OMB had acted impermissibly in delaying promulgation of EPA regulations
beyond a statutory deadline).
13 E.O. 12,291, §3(f)(3).
14 See “Proposed Executive Order Entitled ‘Federal Regulation,’” Office of Legal Counsel,
Department of Justice, 5 U.S. Op. Off. Legal Counsel 59, 61 (Feb. 13, 1981).
15 Id. at 61.
16 Id. at 61.
Despite these pronouncements in the OLC opinion and the order itself,
allegations were made that OMB utilized E.O. 12,2291 to determinatively control
agency rulemaking activities during the Reagan Administration.17 However, courts
considering OMB involvement in agency rulemaking under the auspices of 12,291
did not address the constitutionality of such review. In Public Citizen Health
Research Group v. Tyson, for instance, the court addressed the validity of a rule
promulgated by OSHA governing ethylene oixide, including a challenge based on the
argument that a critical portion of the proposed rule had been deleted based on a
command from OMB.18 While stating that “OMB’s participation in the rulemaking
presents difficult constitutional questions concerning the executive’s proper rule in
administrative proceedings and the appropriate scope of delegated power from
Congress to certain executive agencies,” the court nonetheless found that it had “no
occasion to reach the difficult constitutional questions presented by OMB’s
participation” given its finding that the challenged deletion was not supported by the
B. George H.W. Bush Administration.
The Reagan orders were retained during the first Bush Administration to similar
effect and controversy, with Congress going so far as to refuse to confirm President
George H.W. Bush’s nominee for the position of Administrator at OIRA.20 In 1989
the Administration created the Council on Competitiveness, which was empowered
to resolve disputes between OIRA and regulatory agencies covered under E.O.
12,291.21 The Council itself was likewise controversial, in one instance asserting its
authority to uphold OMB’s rejection of certain elements of a proposed
Environmental Protection Agency rule. EPA acquiesced in the Council’s decision,
and excised the provisions from the final rule. When this deletion was challenged in
court, the Court of Appeals for the District of Columbia did not address the propriety
of the influence wielded by the Council, determining that the deletion was supported
by the rulemaking record.22 Touching upon the Council’s involvement, the court
declared that EPA’s deletion of the provisions at issue “in light of the Council’s
advice...does not mean that EPA failed to exercise its own expertise in promulgating
the final rules.”23 It is important to note that the court’s treatment of the Council’s
involvement in the EPA rulemaking does not in any way indicate that the Council or
OMB had authority to compel changes thereto. Instead, the court based its decision
on a determination that there was a sufficient basis in the record to conclude that the
EPA had exercised its independent expertise in promulgating a rule that was in
accord with the Council’s position. As such, the court’s holding is illustrative of the
17 See Percival, n.6, supra, at 992.
18 796 F.2d 1479 (D.C. Cir. 1986).
19 Id. at 1507.
20 See Lubbers, n.1, supra, at 24.
21 See Caroline Dewitt, “The Council on Competitiveness: Undermining the Administrative
Procedure Act with Regulatory Review,” 6 Admin. L.J. Am. U. 759, 760 n.3 (1993).
22 See New York v. Reilly, 969 F.2d 1147, 1153 (D.C. Cir. 1992).
23 Id. At 1152.
proposition that it is “very difficult, if not impossible, for the judiciary to police
displacement if the agency accepts it.”24
Regulatory Review Under E.O. 12,866
A. Clinton Administration.
Many of the concerns voiced over the effects of E.O. 12,291 were assuaged, at
least temporarily, by the review regime established by the Clinton Administration.
Upon assuming office, President Clinton supplanted the Reagan Administration’s
review scheme through the issuance of Executive Order 12,866, entitled “Regulatory
Planning and Review.”25 The preamble to E.O. 12,866 characterizes its provisions
as presenting a more nuanced approach to the management of agency rulemaking,
and declares that the objective of the order is to:
enhance planning and coordination with respect to both new and existing
regulations; to reaffirm the primacy of Federal agencies in the regulatory
decision-making process; to restore the integrity and legitimacy of
regulatory review and oversight; and to make the process more accessible
and open to the public. In pursuing these objectives, the regulatory process
shall be conducted so as to meet applicable statutory requirements and with
due regard to the discretion that has been entrusted to the Federal
agenci es. 26
While this language could be interpreted as a retreat from the broad executive authority
asserted in the Reagan order, it is important to note that substantive changes to the regulatory
review process made by E.O. 12,866 do not appear to have been developed as the result of
a divergent interpretation of presidential power in this context. Rather, as is addressed in
more detail below, the provisions of E.O. 12,866 indicate a similarly expansive view of
presidential authority to control agency rulemaking. E.O. 12,866 was self-avowedly
designed to ensure that federal agencies “promulgate only such regulations as are required
by law, are necessary to interpret the law, or are made necessary by a compelling public
need.” To accomplish this goal, the order requires agencies to supply OIRA with a
“Regulatory Plan” of the “most important significant regulatory actions that the agency
reasonably expects to issue in proposed or final form” in each fiscal year.27 Furthermore, the
order provides for centralized review of all regulations, requiring each agency to periodically
submit to OIRA a list of all planned regulatory actions, “indicating those which the agency
believes are significant regulatory actions.”28 The order defines a “significant regulatory
Any regulatory action that is likely to result in a rule that may:
24 See Percival, n.6, supra, at 994.
25 Exec. Order 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).
27 E.O. 12,866, §4(c).
28 Id. at §6(a)(3)(A).
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or safety, or
State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees,
or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive Order.29
Upon receipt of such a list, OIRA has ten days to determine whether a planned
regulatory action not identified as significant by the agency is in fact covered under the
aforementioned definition. Planned actions that are not deemed significant are not subject
to OIRA review, while those that are must be subjected to a cost-benefit analysis by the
agency.30 A regulatory action that is deemed significant is further subject to the review and
clearance provisions of the order.31 Under this process, OIRA is required to waive or
complete review of preliminary regulatory actions (such as notices of inquiry or advance
notices of proposed rulemaking) within ten working days after the submission of the draft
action.32 For all other regulatory actions (such as notices of proposed rulemaking or final
rules), OIRA must waive or complete review within 90 calendar days after the date of
submission.33 The review process may be extended once by no more than 30 days upon
request of the agency head and the written approval of the OIRA Administrator.34 These
requirements mark a significant departure from the provisions of E.O. 12,291, which, as was
noted above, was criticized for allowing OIRA to delay most rules indefinitely.35 The
Administrator of OIRA may also remand a regulatory action to the agency “for further
consideration of some or all of its provisions.”36 In the event that a disagreement or conflict
between an agency head and OIRA cannot be resolved by the Administrator, the President
(or the Vice-President acting at the President’s request) may resolve the issue. Such
consideration by the President or the Vice-President may only be initiated by the Director of
OMB or the relevant agency head.37
The Clinton Administration drafted this language to make the OIRA review process
less onerous on agencies than had been the case in the preceding Reagan and Bush
29 Id. at §3(f).
30 Id. at §6(a)(2)(B)-(C).
31 Id. at §6(b).
32 Id. at §6(b)(2)(A).
33 Id. at §6(b)(2)(B). If OIRA previously reviewed the information contained in the
submission and there “has been no material change in the facts and circumstances upon
which the regulatory action is based,” the review must be completed within 45 days. Id.
34 Id. at §6(b)(2)(C).
35 See n.12 and accompanying text, supra.
36 Id. at §6(b)(3).
37 Id. at §7.
Administrations, and this goal manifested itself at OIRA in a selective review process that
resulted in the consideration of significantly fewer rules.38 For instance, while OIRA
reviewed an average of 2080 regulations in fiscal years 1982-1993, the number of regulations
reviewed fell substantially during the Clinton Administration, from 1100 in 1994, to 663 in
1995, and down to 498 in FY1996.39 Furthermore, an average of 600 significant rulemaking
actions were approved per year during the Clinton Administration, while only 25 rules, and
none after 1997, were returned to agencies for further consideration.40
Additionally, the Clinton order provides for a more transparent review process than was
the case with E.O. 12,291. In particular, E.O. 12,866 imposes substantial disclosure
requirements on OIRA “in order to ensure greater openness, accessibility, and accountability
in the regulatory review process.”41 Specifically, the order regulates oral communications
initiated by individuals not employed by the executive branch, mandating that only the
Administrator of OIRA or a particular designee may receive any such communications
“regarding the substance of a regulatory action under OIRA review.”42 The order further
controls all substantive communications between OIRA personnel and individuals outside
the executive branch by requiring that a representative from the issuing agency be invited to
any OIRA meetings held with outsiders, and that OIRA forward any such communications,
“including the dates and names of individuals involved in all substantive oral
communications,” to the issuing agency within ten days of receipt.43 Additionally, the order
requires OIRA to maintain a publicly available log containing information regarding contacts
of the type mentioned above.44 Finally, the order requires OIRA to make available to the
public all documents exchanged between the agency and itself during the review proceeding,
“after the regulatory action has been published in the federal register or otherwise issued to
the public, or after the agency has announced its decision not to publish or issue the
From these requirements, it is evident that E.O. 12,866 imposes significant information
sharing and disclosure requirements between OIRA and an issuing agency, particularly with
regard to substantive communications between OIRA and individuals outside of the
executive branch. It should be noted, however, that the disclosure requirements of the order
are less stringent in the context of inter-agency communications with OIRA during the
review process. Specifically, whereas §6(b)(4) requires OIRA to disclose to the issuing
agency any substantive communications with persons not employed by the executive branch,
there is no similar requirement regarding communications with other agencies. Given this
distinction, OIRA would not seem to be required to disclose communications with other
38 See Lubbers, n.1, supra, at 163.
40 OMB Draft Report, n.8, supra, at 15018.
41 Id. at §6(b)(4).
42 Id. at §6(b)(4)(A).
43 Id. at §6(b)(4)(B).
44 Id. at §6(b)(4)(C).
45 Id. at §6(b)(4)(D).
agencies regarding a draft regulatory action to an issuing agency by the terms of the order.46
Accordingly, OIRA would likewise not appear to be required by the order to make such
communications available to the public upon completion of the review process, as is
generally required, unless it affirmatively discloses the communications to the issuing agency
during review proceedings.47
As touched upon above, the effects of OIRA review during the Reagan and Bush
Administrations generated a great deal of debate regarding constitutional issues adhering to
the displacement of agency decisionmaking authority. Not surprisingly, then, the
transparency and selectiveness of E.O. 12,866, coupled with the more pro-regulatory stance
of the Clinton era OMB, led to a rather rapid drop in debate concerning the proper scope of
presidential review of agency rulemaking. However, it does not appear that the drop in rates
of OIRA review during this period should be taken to indicate a concession that there were
limits on presidential control over the agency rulemaking process, particularly in light of the
vigor with which the Clinton Administration pressed agencies to effectuate its regulatory
goals. For instance, President Clinton greatly expanded the use of formal presidential
directives to executive agencies compelling specific action on their part. President Reagan
and President Bush issued nine and four presidential directives respectively, three of which
instructed agencies to either delay or terminate the issuance of regulations.48 President
Clinton, however, issued 107 presidential directives, several of which were designed to
compel agencies to initiate regulatory action to address a particular issue of importance to
Also, aspects of the Clinton order indicate just as expansive a view of presidential
authority as the Reagan and Bush orders, despite the selectiveness and transparency that
characterized OIRA review during the Clinton Administration. For example, E.O. 12,866,
unlike Reagan’s order, includes independent agencies within its ambit to a certain extent. The
order does not require independent agencies to submit individual rules for review, but does
46 This would appear to be the case even in light of the requirement in §4 of the order that
OIRA circulate regulatory plans provided by an issuing agency to other affected agencies
and forward any communications received therefrom to the issuing agency. See E.O. 12,866,
§4(c)(3)-(4). As noted above, a regulatory plan is essentially a list summarizing “the most
important significant regulatory actions that the agency reasonably expects to issue in
proposed or final form in that fiscal year.” Id. at §4(c)(1). As such, this circulation and
forwarding requirement seems inapplicable to OIRA review of agency regulatory actions
under §6 of the order, given that the focus of the review is on “substantive action by an
agency” that could lead to the promulgation of a final rule or regulation, as opposed to the
initial summary of potential regulatory activity contained in a regulatory plan. Id. at §3(e).
47 Specifically, given that §6(b)(4)(D) requires OIRA to make all documents exchanged
between itself and the issuing agency available to the public upon completion of the review
process, it would appear that any communications between OIRA and another agency would
be subject to the disclosure requirements of the order in the event that OIRA did in fact
provide them to the issuing agency. It should also be noted that irrespective of the disclosure
requirements of E.O. 12,866, an interested party could request access to inter-agency
communications under the Freedom of Information Act, subject to FOIA’s deliberative
process exemption. See 5 U.S.C. §552(b)(5).
48 See Percival, n.6, supra, at 996.
49 See Percival, n.6, supra, at 996.
require them to comply with the regulatory planning process established in the order.50
Another example of the broad assertion of Presidential authority included in the Clinton
order is the fact that the order provides that conflicts between agencies or between OMB and
an agency are to be resolved, “To the extent permitted by law,” by “the President, or by the
Vice President acting at the request of the President, with the relevant agency head.”51 This
language could be taken to indicate that agency heads are to retain some role in the resolution
of a disagreement, but the order appears to vest ultimate decisionmaking authority in the
President or Vice President, stating that “the President, or the Vice President acting at the
request of the President, shall notify the affected agency and the Administrator of OIRA of
the President’s decision with respect to the matter.”52 Similar to the Reagan order, E.O.
12,866 mitigates the potential controversy that this type of presidential displacement of
agency authority could generate by providing that this authority is to be exercised “only to
the extent permitted by law,” thereby giving an agency head the opportunity to argue in a
given case that the President could only issue an advisory opinion, but it seems that the
potential implication of this provision is that the President is perceived as having
determinative authority in this context.
This provision has turned out to have little effect, given that Clinton’s assertion and
exercise of authority over the regulatory process manifested itself outside of the traditional
OMB process. As noted above, President Clinton used devices such as presidential directives
to direct agency heads to take a specific course of action in furtherance of his
Administration’s regulatory agenda, in contrast to the Reagan and George H.W. Bush
Administration’s approach of using the processes mandated in E.O. 12,291 to curtail agency
rulemaking efforts. However, from the perspective of analyzing presidential control over the
administrative process, it is interesting to note that unlike the Reagan order, E.O. 12,866
could be interpreted as asserting direct presidential authority over discretionary actions that
have been assigned to agency heads by Congress.53 Accordingly, while the operative aspects
of E.O. 12,866 were welcomed by many as improving upon the transparency and
selectiveness of OIRA review, other aspects of the order could be taken to indicate that the
Clinton Administration’s view of presidential authority over agency rulemaking was largely
consonant with that of the Reagan and George H.W. Bush Administrations, with the
manifestation of this perspective differing primarily due to the obvious differences in the
political aims of these administrations.
B. George W. Bush Administration.
The George W. Bush Administration, while retaining E.O. 12,866, has developed a
regulatory review policy that is subjecting rules to more stringent review than was the case
during the Clinton Administration.54 In particular, it has been asserted that the current
Administration has returned to the regulatory review dynamic that prevailed under E.O.
50 E.O. 12,866, §4(c).
51 E.O. 12,866, §7.
52 E.O. 12,866, §7.
53 See Kagan, n.10, supra, at 2319.
54 While the George W. Bush Administration has retained E.O. 12,866, it should be noted
that Executive Order 13,258, 67 Fed. Reg. 9385 (Feb. 28, 2002), removes the Vice President
from the regulatory review process.
12,291, with OIRA going so far as to describe itself as the “gatekeeper for new
rulemakings.”55 At the same time, however, the George W. Bush Administration appears to
be taking a more nuanced approach to OIRA review than was the case under E.O. 12,291,
enabling it to have a substantial impact on agency rulemaking while avoiding the degree of
criticism and controversy occasioned by regulatory review under the Reagan and George
H.W. Bush Administrations.
OIRA has markedly increased the use of “return” letters to require agencies to
reconsider rules under E.O. 12,866. According to a memorandum from OIRA Administrator
John D. Graham for the President’s Management Council, return letters may be issued “if
the quality of the agency’s analyses is inadequate, if the regulatory standards adopted are not
justified by the analyses, if the rule is not consistent with the regulatory principles stated in
the Order, or with the President’s policies or priorities, or if the rule is not compatible with
other Executive orders or statutes.”56 Under Administrator Graham’s tenure, OIRA has
returned over 20 rules for agency reconsideration.57 OMB has discussed two notable effects
of the reinvigoration of this practice. First, the willingness to issue such letters emphasizes
to agencies that OIRA “is serious about the quality of new rulemakings.” Second, agencies
have begun to seek OIRA input “into earlier phases of regulatory development in order to
prevent returns late in the rulemaking process.”58 In practical terms, this type of collaboration
is arguably beneficial to the extent that it enables OIRA to ensure that rulemaking efforts
comply with the aims of E.O. 12,866, while giving agencies confidence that their regulatory
proposals will not be returned after the investment of significant resources in their
formulation. Conversely, this dynamic buttresses executive control over agency rulemaking
efforts by allowing the exertion of influence at the earliest stages of the formulation process,
and, as is discussed in more detail below, raises concerns regarding the extent to which this
type of influence is disclosed.59
In a significant departure from the nature of OIRA review under the Reagan and George
H.W. Bush Administrations, under the current Administration, OIRA has taken a proactive
stance in identifying issues that the office feels are ripe for regulation, and has instituted the
practice of issuing “prompt letters” to the appropriate agency to encourage rulemaking on
those issues. OIRA has described the prompt letter as a “modest device to bring a regulatory
matter to the attention of agencies.”60 As acknowledged by OIRA, prompt letters “do not
have the mandatory implication of a Presidential directive.” Rather, the device “simply
55 Office of Management and Budget, Office of Information and Regulatory Affairs,
“Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of
Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities,”
December, 2002 (hereinafter “2002 OMB Report”). See also CRS Report RL32397, Federal
Rulemaking: the Role of the Office of Information and Regulatory Affairs, p. 21.
56 John D. Graham, “Memorandum for the President’s Management Council,” Sept. 20,
57 See CRS Report RL32397, n.55, supra, at 21. A list of return letters issued by OIRA is
available at [http://www.whitehouse.gov/omb/inforeg/return_letter.html].
58 OMB Draft Report, n.9, supra, at 15018.
59 See n.67 and accompanying text, infra.
60 OMB Draft Report, n.9, supra, at 15020.
constitutes an OIRA request that an agency elevate a matter in priority.”61 OIRA has also
taken steps to ensure that prompt letters are available to the public, in order to stimulate
“agency, public and congressional interest in a potential regulatory priority.” Noting that
prompt letters could be treated as confidential, OIRA has further stated that it feels
publication is warranted “in order to focus congressional and public scrutiny on the important
underlying issues.”62 By specifically identifying regulatory issues of importance to the
Administration through prompt letters, OIRA has presumably been able to exert a substantial
degree of influence over the pursuit and scope of regulatory efforts in those areas.63
In addition to the use of prompt letters, OIRA has staved off criticism of the degree
leveled at the Reagan and George H.W. Bush Administrations by increasing the transparency
of the review process. As discussed above, the Reagan Administration in particular was
criticized for its reluctance to open the OIRA review process to outside inspection. E.O.
requiring OMB and OIRA to disclose any closed door meeting between federal officials
outside groups regarding a regulation. Under Administrator Graham, OIRA has retained
these requirements and has significantly expanded access to this information by placing
information regarding meetings and OIRA decisions on the OIRA website.64 With this step,
information that was previously accessible only at OIRA’s record room is now available via
the internet, increasing access to OIRA information regarding meeting logs, communications
between OIRA and agency officials, and general OIRA guidance on rulemaking.65 This
approach has effectively undercut what was once a major avenue of attack on OIRA review,
although concerns remain regarding OIRA’s influence on the rulemaking process and the
extent to which its involvement is disclosed.
In particular, a 2003 study by the General Accounting Office (GAO)66 raised concerns
regarding the level of transparency governing certain “preinformal review” OMB contacts
with outside parties, as well as with contacts between OIRA and agency officials during
“informal review.”67 Specifically, one of the significant OIRA disclosure policies instituted
by Administrator Graham establishes that OIRA will disclose substantive meetings and
contacts with outside parties regarding rules under review even in instances where OIRA was
engaged only in an informal review, including substantive telephone calls initiated by the
62 Id. It is interesting to note that OIRA has also declared that “there is no reason why
members of the public should not suggest ideas for prompt letters to the OIRA
63 See CRS Report RL32397, n.55, supra, at 22.
64 See “OIRA Disclosure,” Memorandum for OIRA Staff From John D. Graham,
Administrator, Oct. 18, 2001.
65 See CRS Report RL32397, n.55, supra, at 23-24.
66 GAO has since been redesignated as the Government Accountability Office.
67 U.S. General Accounting Office, “Rulemaking: OMB’s Role in Reviews of Agencies’
Draft Rules and the Transparency of Those Reviews,” GAO-03-929 (Sept. 22, 2003)
(hereinafter “GAO report”).
Administrator.68 However, the GAO report found that OIRA does not consider a rule to be
under review for purposes of these disclosure requirements if OIRA is in general consultation
with an agency regarding a matter that has not become substantive or for which the agency
has not submitted a draft rule for informal review. Accordingly, during this so-called
“preinformal review” period, OIRA may communicate with outside parties without triggering
the aforementioned disclosure requirements.69 Additionally, the GAO report found that, with
regard to contacts with agencies, OIRA interprets disclosure requirements as applicable only
to the period where a rule is under formal review pursuant to E.O. 12,866.70 In practical
effect, this review dynamic allows varying degrees of unreported contacts both between
OIRA and outside parties, and OIRA and the executive agencies.71 Furthermore, as noted by
GAO, these preformal review proceedings would allow an agency to submit a proposal to
OIRA for informal review and to alter that proposal in accordance with OIRA’s input,
without revealing any such changes to the public.72
Additionally, OIRA appears to have reinvigorated review of existing rules, and has
taken steps to involve the public in the review process. In May 2001, OIRA solicited the
public to nominate rules that should be considered for recision or modification. OIRA
received 71 nominations from 33 commentators, and concluded that 23 of the rules
nominated merited “high priority review.”73 In February 2004, OIRA solicited public
nomination of reforms of regulations in the manufacturing sector, specifically requesting
suggestions for reforms to regulations, guidance documents, or paperwork requirements that
would “improve manufacturing regulation by reducing unnecessary costs, increasing
effectiveness, enhancing competitiveness, reducing uncertainty and increasing flexibility.”74
OIRA received 189 reform nominations from 41 commentators, determining that 76 of the
189 nominations “have potential merit and justify further action.”75 This review process
serves to further illustrate the degree of involvement of the current Administration in all
facets of regulatory review.76
As touched upon above, OIRA’s use of mechanisms such as return and prompt letters
have served to encourage agency collaboration with OIRA at the earliest stages of the rule
68 See CRS Report RL32937, n.55, supra, at 23.
69 See GAO Report, n.67, supra, at 54.
70 See GAO Report, n.67, supra, at 56.
71 See n.46 and accompanying text, supra, for information regarding treatment of OIRA
contact with other agencies during the review process.
72 See GAO Report, n.67, supra, at 55-56.
73 See CRS Report RL32356, Federal Regulatory Reform: An Overview, pp. 24-25.
75 Office of Management and Budget, Office of Information and Regulatory Affairs,
“Regulatory Reform of the U.S. Manufacturing Sector,” pp. 2-3, March 9, 2005.
76 This review process has been derided in the public interest sector as an “anti-regulatory
hit list” that would serve to weaken environmental protections, See OMB Watch, “White
House Endorses Part of Anti-Regulatory Hit List,” March 21, 2005. Available at
[http://www.ombwatch.org/article/articleview/2746/1/309?TopicID=1]. However, OIRA
maintains that this review program is simply a “component of OMB’s multi-year effort to
modernize or rescind outmoded rules.” See n.75, supra, at 3.
formulation process. Indeed, OIRA has stated that “it is at these early stages where OIRA’s
analytic approach can most improve the quality of regulatory analyses and the substance of
rules.”77 The obvious potential for OIRA to exert a degree of influence over rulemaking at
this stage of development that rivals or perhaps even exceeds that wielded during formal
review proceedings could be seen as tempering the salutory effects of the increased
transparency requirements imposed during the formal review process. Nonetheless, OIRA
has maintained that “its interactions with agencies prior to formal regulatory review are pre-
decisional communications that should generally be insulated from public disclosure in order
to facilitate valuable deliberative exchanges.”78 In light of these developments, it seems
apparent that while the aforementioned changes to disclosure requirements pertaining to the
formal OIRA review process have shielded the current Administration from the degree of
criticism occasioned by E.O. 12,291, the potential that OIRA may play an important and
potentially unacknowledged role in the formulation of agency rules during preformal review
proceedings may be viewed as raising the same concerns that have traditionally adhered in
As has been illustrated by the consideration of the review regimes discussed above,
there has been a steady evolution of presidential review of agency rulemaking from the
Nixon Administration to the current Administration of George W. Bush. While the initial
programs established in the 1970’s were generally viewed as benign, President Reagan’s
issuance of E.O. 12,291 ushered in a new era of presidential assertions of authority over
agency rulemaking efforts, raising attendant concerns with regard to the proper allocation of
authority between the President and Congress in this context. Despite these separation of
powers based concerns over the propriety of such review regimes, no reviewing court has
squarely addressed the issue.79 Furthermore, while the actions of both the Clinton and George
W. Bush Administrations in implementing the provisions of E.O. 12,866 appear to indicate
a conception of presidential authority consonant with that conveyed by the Reagan order,
their more nuanced approach to exercising this authority has largely diminished charges
against its constitutionality. In turn, 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.
77 See 2002 OMB Report, n.55, supra, at 16; GAO Report, n.67, supra, at 57.
78 See 2002 OMB Report, n.55, supra, at 13.
79 See Lubbers, n.1, supra, at 31.