Daniel Flores (Guest Commentary)**
On September 30, 1993, President Clinton issued Executive Order 12866, which to this day is the central Executive Branch order governing legislative rulemaking by Executive agencies. It consolidated and expanded upon principles and procedures set forth by President Reagan in Executive Order 12991 for the systematic use of cost-benefit analysis and centralized review of federal rulemaking proposals.
E.O. 12866 has been maintained by each succeeding President, and it has had a salutary impact on the development and promulgation of myriads of legislative rules over the years since 1993. Often, the order is considered as something exclusively of interest to the Executive Branch, but the order also is the focus of great congressional interest. This should come as no surprise – after all, the order concerns what, in the end, is legislative activity, occurring with the assistance of the Executive Branch only under delegations of authority by Congress.
This practice is sanctioned by the jurisprudence of the United States Supreme Court. But in the words of the Constitution, one only finds two explicitly defined roles for the Executive in the development of legislation and its incorporation into the law. First, the President is given the authority to sign into law or return to Congress unsigned legislation Congress has passed and transmitted to him. Second, the President may recommend to Congress from time to time such measures as he judges necessary or expedient, which, of course, includes legislative measures.
E.O. 12866 possesses many good, well-recognized features. But not always perceived is perhaps its greatest feature of all. That is that the heart of the order – its “Statement of Regulatory Philosophy and Principles” – helps to assure, when followed faithfully, that legislative activity being concluded by the Executive Branch through rulemaking is animated and guided by general principles that are important when Congress itself is writing the terms of the law, when the President evaluates whether to sign or return legislation sent to him by Congress, or when the President asks his administration to develop legislation for him to recommend to Congress. Of course, first and foremost as an agency develops a legislative rule are the specific statutory considerations laid down by Congress when it authorizes a particular rulemaking. But, within space for discretion left to the Executive Branch as it fulfills such a charge, E.O. 12866’s regulatory philosophy and principles provide vital additional guides.
It is in large part because of this, and because of the effectiveness of the procedures the order additionally sets forth, that Congress has been considering for several terms rendering the central provisions of the order permanent by codifying them into statute, specifically through the “Regulatory Accountability Act.” That legislation has been introduced on a bipartisan basis in both the House and the Senate in every Congress since the 112th Congress. It has several times been passed by bipartisan votes of the House, and a Senate version of the legislation has been reported on a bipartisan basis this term by the Senate’s Committee on Homeland Security and Governmental Affairs. (See, e.g., title I of H.R. 5 and the full text of S. 951 in the current term of Congress (available at https://www.gpo.gov/fdsys/pkg/BILLS-115hr5eh/pdf/BILLS-115hr5eh.pdf and https://www.gpo.gov/fdsys/pkg/BILLS-115s951rs/pdf/BILLS-115s951rs.pdf).)
* *The views expressed are those of the author, offered in his personal capacity, and are not conveyed as the official views of the Committee on the Judiciary of the United States House of Representatives, the Regulatory Studies Center, or George Washington University.