Independent Agency Rules Newly Subject to OIRA Review

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Introduction

In February 2025, the White House issued Executive Order (EO) 14215, “Ensuring Accountability for All Agencies,” to increase executive branch control over independent regulatory agencies, which have historically experienced less direct control from the White House. Section 3 of the EO operationalized this objective by extending EO 12866 (1993), mandating that the Office of Information and Regulatory Affairs (OIRA) oversee independent regulatory agencies including 1) reviewing rulemakings for consistency with the administration’s priorities; 2) requiring interagency coordination; and 3) conducting ex ante analysis of rules, similar to the requirements for executive branch agencies.

The White House order is one part of a broader trend towards lessening the independence of these agencies. In June 2026, the Supreme Court ruled that the arrangement which protects independent agency commissioners from no-cause firing by the White House was unconstitutional, opening up the ability for the president to fire these commissioners. These sudden changes to the operation and structure of independent regulatory agencies provides a new opportunity to evaluate the types of rulemakings they engage in and how comparable they are to executive branch agencies.

Because EO 14215 subjects significant regulatory actions to OIRA review, the order’s practical reach depends first on how frequently independent agencies issue rules that meet the significance threshold. Examining both the number and share of significant rules indicates how much of these agencies’ regulatory output is newly exposed to centralized review and where that review is concentrated. Executive branch agencies provide a useful benchmark because they have long operated under the EO 12866 review framework. Accordingly, this insight compares the incidence and characteristics of significant proposed rules across independent and selected executive branch agencies to assess the initial scope of OIRA’s expanded role.

Overview of EO 14215 and Independent Regulatory Agencies

Unlike executive branch agencies, which are directly accountable to the president, Congress designed independent agencies to possess a degree of insulation from political influence. This independence takes shape through multiple elements of agency design that limit direct presidential control over regulatory output. These insulating features include bipartisan leadership boards and staggered terms for board members, yet the defining characteristic of independent agencies is—or, rather, was—tenure protections enjoyed by their leaders. By statute, Congress required presidents to have a legitimate reason, or “cause,” for dismissing a board member at an independent agency (whereas the leaders of non-independent agencies may be dismissed by the president for any reason).

In a 1935 decision, Humphrey’s Executor v. United States, the Supreme Court upheld the constitutionality of these tenure provisions at the Federal Trade Commission. This system held until a 6-3 decision by the Supreme Court in Trump v. Slaughter (2026) , in which the majority found that “[al]though it is up to the Senate to decide whether to confirm those with whom the president would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the president’s power are subject to removal by him. Then, and only then, can they remain accountable to the president.” The dissent argued that "the text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President" and that "the doctrine of stare decisis, which today's decision cursorily dismisses, should have made this a profoundly easy case under Humphrey's." 

Under Humphrey’s Executor, independent regulatory agencies remained fully subject to the Administrative Procedure Act (APA), which provides a harmonized procedural framework for federal agency rulemaking. Like executive branch agencies, their authorizing statutes generally required them to engage in notice-and-comment rulemaking including providing an opportunity for the public to comment on proposed rules and issuing a final rule accompanied by a statement of basis and purpose. The APA also provides for judicial review, requiring that rules not be arbitrary or capricious and that agencies provide explanations for their decisions.

President Clinton issued EO 12866, which is still in effect today and requires OIRA review of significant proposed and final rules.  OIRA makes final determinations regarding which of an agency’s planned rules are significant.  Those are the regulatory actions agencies must share, along with preambles, supporting analysis, and documentation, with OIRA for interagency review before publication. Both the Reagan and Clinton orders Section 3(b) excluded agencies “considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).” EO 14215 removes that exclusion.

OIRA subsequently issued interim guidance for the implementation of the review process. The guidance focused primarily on the process for implementing EO 12866. It also identified eighteen agencies that are newly subject to review. Following EO 14215, the new obligation for agency rules to undergo OIRA review will mean that they will face an additional step when proposing or finalizing new rules.  This insight seeks to understand independent agency rulemakings under EO 14215. Specifically, we examine data from the agencies listed in the interim guidance including that undertook rulemakings during the 1-year period of study.  We also include a separate category for rules jointly proposed by multiple agencies. Although it is an independent regulatory agency, we analyze the Office of the Comptroller for Currency (OCC) as a separate category because despite its independence, its rules are already reviewed by OIRA, as it is a part of the Department of Treasury. We also include a series of executive branch agencies as a comparison.  We choose agencies that span agricultural and food regulation, public health, labor and employee benefits, and transportation safety to give breadth in the types of regulations promulgated, while also varying in their levels and types of rulemaking activity. Each has long operated under the EO 12866 review framework, making the comparison sample useful for showing how OIRA review operates across established regulatory programs.

Federal Register Data

We begin by collecting Federal Register data on proposed rules, restricting the sample to the proposed rules that OIRA received for review between April 21, 2025 and April 21, 2026, marking the first year of the EO’s implementation. We include both proposed rules and advance notices of proposed rulemakings. This search initially yielded 203 documents for the independent agencies and 236 documents for the executive branch regulatory agencies in our sample. Next, we review each document to ensure that it is a proposed rule and not a notice of public meeting, environmental review document, or other non-rule document. After that, we identify whether rules are significant based on the Federal Register metadata. Rules that are proposed by multiple agencies are coded as joint rules. As a backup, we review the rule text to identify economic significance.

Results

Table 1 shows the classification of proposed rules from independent regulatory agencies in the Federal Register during the first year that EO 14215 was in effect. In total, the fourteen agencies issued 202 rules of which 30 were significant. The FCC published the most proposed rules in the Federal Register (51), but none of those were significant and therefore none were reviewed by OIRA. The CFPB published 12 proposed rules during the one-year window and OIRA reviewed 10 of them as significant. Across all independent regulatory agencies in this sample, 22.6% of rules were significant.