Congressional Views on the Bipartisan Principles of E.O. 12866

October 3, 2018

Shawne McGibbon

When I was invited to moderate a panel at the 12866 anniversary event, I was initially struck by the realization that the Executive Order (E.O.) was actually 25 years old—well beyond its infancy and teenage years. At the outset of the event, former Office of Information and Regulatory Affairs (OIRA) Administrator Sally Katzen, who was instrumental in the creation and adoption of the E.O., appeared as surprised as anyone that her efforts all those years ago had such a lasting effect. Indeed, who could have predicted its future back in 1993? My panel was assembled to capture the congressional perspective on the value of the E.O. and its future prospects.

Widespread Agreement on the Value of 12866

With 24/7 media coverage harping on the incivility and political sniping that occurs on Capitol Hill, it was quite refreshing to moderate a bicameral and bipartisan panel where both speakers agreed about the importance of the E.O. and its “amazing success.” Of course, this shouldn’t come as a shock to anyone familiar with the history of E.O. 12866 and the various attempts to enhance—but rarely to weaken—its provisions (e.g., E.O. 13563). The concepts of benefit-cost analysis, transparency in the rulemaking process, and centralized review of regulation are essential to a well-functioning administrative state. The procedures have stood the test of time because they have demonstrated their value and because good government isn’t a partisan issue. The panelists consistently reinforced these themes.

Past and Present Attempts to Build on 12866

Both chambers of Congress introduced a version of the Regulatory Accountability Act of 2017 (RAA). The bills codify much of what we find in the E.O., and they also represent a comprehensive effort to amend the Administrative Procedure Act (APA)—a law that has remained mostly undisturbed since its adoption in 1946. Although there are many differing opinions about whether the specific requirements in the RAA are all beneficial (e.g., more formal rulemaking and less agency deference under judicial review), the RAA is a triumph of bipartisan compromise. The panelists suggested that the RAA not only captures the spirit of E.O. 12866, but it also stands firmly on the shoulders of the order.

In addition to the RAA, a host of E.O.s over the years have added more process to regulatory review requirements. Over 15 years ago, I personally contributed to the growing body of regulatory requirements that constrain agencies when I worked with my OIRA counterpart to craft E.O. 13272, which requires agencies to pay particular attention to the economic impacts on small entities in the rulemaking process. The natural question that arises is whether the increased procedural requirements contained in the RAA equate to too much process. Both panelists dispelled the idea that the requirements in the RAA would contribute significantly to ossification in the rulemaking process because much of what the bills require is consistent with the myriad requirements that currently exist.

Conclusion: 12866’s Ongoing Legacy

What does the future hold? By all accounts, E.O. 12866 is here to stay, and Sally Katzen has left us all quite a legacy. The panelists gave us a glimpse of how significant a role E.O. 12866 has played in the arena of regulatory review, and they promoted a legislative vehicle to codify the E.O.’s requirements. Can Congress get this done before the current legislative calendar runs out? Stay tuned.

**This commentary reflects the views of the author, and does not represent an official position of the Administrative Conference of the United States, the Federal government, the GW Regulatory Studies Center, or the George Washington University.**