in establishing a central system of regulatory policy clearance. That system, established by E.O. 12291 and reinforced by E.O. 12498, authorized OIRA to apply its version of cost-benefit analysis. The centralized clearance system manned by Reagan appointees influenced the substance of regulatory policy in environmental, health, and safety areas. E.O. 12291 became one of the most important orders in domestic policy since the development of the administrative state and the institutionalized presidency. E.O. 12498 ensured that agency rule-making planning squared with market-oriented political priorities of the Reagan Administration unless directed otherwise by statute. Through these two orders the Reagan Administration accelerated and deepened the politicization and centralization of the institutionalized presidency in regulatory review and management, and they remain in effect in the Bush Administration.
However, political costs resulted from the circumvention of Congress regarding its approval of presidential management of regulatory policy: an adverse reaction occurred to the ex parte contacts and to secrecy in the implementation of E.O. 12291. For the Reagan Administration, the advantages of greater politicization and centralization in gaining greater control over the flow and content of regulations were matched by the growing mistrust of OMB and the excesses and flaws in the regulatory review system, documented in congressional oversight reports and hearings and in court litigation.
The Administration benefited in the short term, using the flexibility of an executive order that could be immediately applied to a problem without congressional obstruction or delay. However, it heightened the level of conflict with Congress by its long-standing resistance to greater public access to the processes of regulatory review. More than that, the use of an executive order for such an important objective makes it a controversial and problematic policy instrument, not so much because it can be supplanted by another executive order or statute, but because intrinsic difficulties are inherent in judicial review and in congressional input and oversight. There are also legitimate concerns about the ambiguous citations of constitutional and statutory authority in the use of some executive orders.