Email: Learning Journey: Executive Authority Over Regulatory Review Day 1

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  Welcome to the first of four installments of Ballotpedia’s Learning Journey on executive authority over regulatory review!

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Welcome to the first of four installments of Ballotpedia’s Learning Journey on executive authority over regulatory review. Executive control of administrative agencies is one of our five thematic pillars supporting a thorough understanding of the administrative state. Under the separation of powers doctrine, the president exercises control over executive branch agencies, though his power is not absolute. Management of rulemaking and regulatory review is one of the primary ways in which the president pursues his policy agenda. The degree to which the president should control rulemaking is a longstanding topic of debate among scholars. Some assert that a heavy hand is necessary to ensure accountability and constrain bureaucratic imperiousness. Others contend that agencies must be given leeway to exercise their technical expertise. This Learning Journey introduces you to the basics of executive authority over regulatory review and the debate over the appropriate degree of presidential control. Let’s get started! What is regulatory review? Regulatory review refers to the monitoring and oversight of agencies’ rulemaking. Regulatory review involves determining whether agencies have fulfilled all procedural obligations, including analyses of costs and benefits, identification of the statutory authority for the rule, public notice and comment, paperwork reduction requirements, and others. The review also determines whether a proposed rule would conflict with existing regulations, and whether it comports with the president’s policy agenda. Read On: Regulatory Review   What is the executive’s role in the regulatory review process? The modern system of regulatory review was established by President Bill Clinton (D) in a 1993 executive order. Every president since has customized regulatory review procedures through successive executive orders. Clinton’s Executive Order 12866 requires agencies to: Conduct a benefit-cost analysis for any regulation that would be “economically significant” (defined as having an annual effect on the economy of $100 million or more, or adversely affecting the economy, competition, or jobs, among other things). Explicitly identify the problem to be addressed by the proposed rule. Determine whether existing regulations created or contributed to the problem. Assess alternatives to regulation. Design regulations in the most cost-effective manner. The order tasked the White House Office of Information and Regulatory Affairs (OIRA), a sub-agency of the Office of Management and Budget, with reviewing and coordinating significant regulatory actions (excluding those issued by independent agencies). The White House, in its review, cannot override the statutory directives of Congress. OIRA officials are authorized to request agencies to revise proposed regulations before concluding the review. In 2011, President Obama issued Executive Order 13563 to supplement the principles and procedures for regulatory review. E.O. 13563 instructed agencies to coordinate their regulatory activities and reduce regulatory burdens on the public, among other directives. Read On: Executive Order 12866 Office of Information and Regulatory Affairs Significant regulatory action   Arguments to strengthen or limit executive regulatory review authority Supporters of a strong executive role in regulatory review assert that it increases the president’s control over administrative agencies, improves agency accountability, and ensures public participation in the rulemaking process. Others contend that strict presidential oversight of agency rulemaking, such as OIRA’s review of significant regulations, unduly prolongs the process and undermines agency expertise.   What's Next? Tomorrow we will take a closer look at OIRA’s regulatory review process and examine other executive actions that have influenced regulatory review.   Go Deeper: Regulatory Review Executive Order 12866 Office of Information and Regulatory Affairs Significant Regulatory Action