CRS-13
The issuance of Executive Order 12291 was followed by an opinion, from the Office of Legal Counsel in the Department of Justice supporting its validity.[1] The opinion stated that the President's authority to issue the order was based solely on his constitutional power to "take care that the laws be faithfully executed."[2] While concluding that any inquiry into congressional intent in enacting specific rulemaking statutes "will usually support the legality of Presidential supervision of rulemaking by Executive Branch agencies," the opinion stated that Presidential supervision of agency rulemaking "is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official."[3]
Executive Order 12291 drew much criticism from Members of Congress, public interest groups, and commentators. These criticisms were primarily based on constitutional, statutory, and management principles. One such criticism was that the Office of Management and Budget (OMB) violated separation of powers principles when it sought to "control" agency rulemaking authority that had been assigned to the agency by Congress in the enabling statute establishing the regulatory program.[4] Although the order exempted independent regulatory agencies, the President's authority to extend the executive order's requirements to them was also the subject of much debate.[5] Another concern raised by the order was that nonpublic communications between OMB and the rulemaking agency during review of an agency rule would deny members of the public an opportunity to rebut OMB's arguments made to the agency, and thus undermine the integrity of the rulemaking record.[6] Due to congressional pressure, OMB responded by reaffirming certain previously established procedures and by establishing additional procedures for reviews by OMB's Office of Information and Regulatory Affairs (OIRA).[7]
- ↑ Op. Office of Legal Counsel, Dept. of Justice, Proposed Executive Order entitled "Federal Regulation" (Feb. 18, 1981), reprinted in 1988-1989 Regulatory Program of the United States Government at 532-36.
- ↑ Id. at 532.
- ↑ Id. at 533-34.
- ↑ See, e.g., Rosenberg, Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291, 80 Mich. L. Rev. 193 (1981). Erik D. Olsen, The Quiet Shift of Power: OMB Supervision of EPA Rulemaking Under Executive Order 12291, 4 Va. J. Nat. Res. L. 1 (1984).
- ↑ See McGarity, Presidential Control of Regulatory, Agency Decisionmaking, 36 Am. U. L. Rev. 443 (1987); Strauss and Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 Admin. L. Rev. 181, 202-05 (1986).
- ↑ See, e.g., McGarity, supra n. 56 at 457-60; Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 Va. J. Nat. Res. 1, 75-77 (1984).
- ↑ Memorandum, Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498, June 13, 1986, from Wendy A. Gramm to Heads of Departments and Agencies Subject to Executive Orders 12,291 and 12,498, reprinted in 1990-1991 Regulatory Program of the United States Government 605-07.
