Academic journal article Presidential Studies Quarterly

The Law: Executive Order 13422: An Expansion of Presidential Influence in the Rulemaking Process

Academic journal article Presidential Studies Quarterly

The Law: Executive Order 13422: An Expansion of Presidential Influence in the Rulemaking Process

Article excerpt

Executive Order 13422, issued by President George W. Bush in January 2007, contains the most significant changes to the presidential regulatory review process since 1993. The changes include requirements that agencies designate a presidential appointee as a "regulatory policy officer" who can control rulemaking activity and identify the "market failure" or problem that warrants a new regulation. The order also expands presidential review to include significant guidance documents. Although these changes have been criticized as an expansion of presidential influence over rulemaking (to the detriment of Congress and agencies), the ultimate impact of the order may only be revealed through its implementation.

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Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. Although not as frequently examined as congressional or presidential policy making, the process of developing and framing rules is viewed by some as central to the definition and implementation of public policy in the United States (Kerwin 2003). During the past fifty to sixty years, Congress and various presidents have developed an elaborate set of procedures and requirements to guide the federal rulemaking process, often with the implicit or explicit goal of reducing the amount of regulatory burden placed on the public. The most important of the current set of presidential rulemaking requirements are in Executive Order (E.O.) 12866, which was issued by President William Clinton in September 1993. (1) The executive order describes the principles and procedures by which the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs (OIRA) reviews hundreds of covered agencies' significant proposed and final rules before they are published in the Federal Register. As a result of these reviews, OIRA can have a significant--if not determinative--role in the development of a broad array of public policies, from the homeland security rules governing boarding of passenger aircraft to the amount of arsenic allowed in public water systems (U.S. General Accounting Office 2003).

On January 18, 2007, President George W. Bush issued E.O. 13422, making the most significant amendments to the presidential regulatory review process since 1993. (2) The changes made by this new executive order are highly controversial, characterized by some as a "power grab" by the White House that undermines public protections and lessens congressional authority (Public Citizen 2007). Others, however, have said the changes are "a paragon of common sense and good government" (Sullivan 2007). Differences of opinion regarding the executive order were also apparent during two oversight hearings held on February 13, 2007--one by the House Committee on Science and Technology's Subcommittee on Investigations and Oversight, (3) and the other by the House Committee on the Judiciary's Subcommittee on Commercial and Administrative Law. (4) For example, in the Science Committee hearing, Subcommittee Chairman Brad Miller said the new order creates "an almost insuperable bias in favor of agency inaction" and "shift(s) to the President powers that the framers of our Constitution intended to be exercised by Congress." However, Ranking Member F. James Sensenbrenner, Jr., said he believed the order simply formalized many of the principles established in previous administrations. In the Judiciary Committee hearing, Subcommittee Chairman Linda T. Sanchez said she was "concerned that the main thrust of this new Order appears to shift control of the regulatory process from the agencies--the entities that have the most substantive knowledge and experience--to the White House." On the other hand, Ranking Member Chris Cannon said the changes were "useful refinements" to the existing regulatory review process and could be expected to lead to improved governance. (5)

Regulatory Planning and Review

Centralized review of agencies' regulations within the Executive Office of the President has been an important part of the federal rulemaking process for more than thirty-five years. …

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