Article by C. Boyden Gray
The dramatic increase in regulatory activity over the past decade has demonstrated beyond any doubt the need for oversight and coordination of the rulemaking process. Agencies entrusted with only one area of concern are making decisions that affect the nation as a whole; these decisions are at least partially responsible for inflation, lagging productivity and slow economic growth.
To bring some management control to the regulatory process, President Reagan promulgated Executive Order 12,291. The Executive Order sets forth several general principles to guide rulemaking action. It directs executive branch agencies to choose the regulatory alternative "involving the least net cost to society" and prohibits them from taking action "unless the potential benefits to society for the regulation outweigh the potential costs." In contrast to earlier Executive Orders that relied primarily on the agencies to police their own compliance with such general regulatory principles, President Reagan's order requires that all rules be submitted to the Office of Management and Budget (OMB) prior to their publication in the Federal Register as either proposed or final rules. The OMB, under the direction and supervision of the Presidential Task Force on Regulatory Relief, then reviews the submissions to evaluate their compliance with the principles set forth in the Executive Order.
Because Executive Order 12,291 establishes a clear mechanism for executive oversight of regulatory activity, it has stirred controversy over the role of the Executive Office of the President in rulemaking proceedings. In part, this controversy has taken the form of a debate over the propriety of presidential ex parte communications with an agency.
About the Author
C. Boyden Gray. Counsel to the Presidential Task Force on Regulatory Relief; Counsel to the Vice President. The views expressed are solely those of the author and do not necessarily reflect the views or opinions of the Task Force or the Vice President.
Citation
56 Tul. L. Rev. 863 (1982)