20 Years of 12866

This coming Friday marks the 20th anniversary of a little-known but remarkably important document: Executive Order 12866, issued by President Bill Clinton in 1993. Executive Order 12866 replaced an order issued by President Ronald Reagan in 1981. Both of these documents set out a process whereby the White House – acting through the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) – would review major agency rules before they were issued.

Executive Order 12866, and the Reagan order before it, ushered in a new era in administrative law, one in which the White House would become the dominant force in administrative rulemaking and in which cost-benefit analysis would become the overarching framework for evaluating the wisdom of rules. Professional career staff in the agencies, steeped in the technical fields relevant to the agencies’ work, would see their work product changed, sometimes dramatically, by professional career staff in OIRA. Political management at the agencies would find their actions scrutinized, revised, and sometimes stopped altogether by political operatives at the White House. 

Even where statutes (as most do) charged a particular agency with making a particular technical finding and set forth a decision-making framework other than cost-benefit analysis, the White House process of regulatory review displaced those agency decision makers and supplanted the statutory standard with a cost-benefit test. The executive orders under both Reagan and Clinton qualified their reach by stating that they were to be applied “to the extent permitted by law,” but administrative law developments in the Supreme Court subsequent to the Reagan executive order – in particular, the famous Chevron decision – give tremendous leeway to agencies in interpreting the statutes they administer, and OIRA has taken upon itself to instruct agencies how to interpret these laws. Thus the constraint of following existing law is more illusory than real. 

Executive Order 12866 entered this fraught environment after over a decade of experience with Reagan’s order. Harsh criticism had followed the original order and its implementation. OIRA reviews took a long time; indeed, sometimes review never ended and rules simply died on the OIRA vine. The process was opaque. One could hardly tell what was under review, much less what OIRA had done during its review. OIRA review had become an opportunity for industry representatives to air their complaints about rules, and this part of the process was opaque as well. The same was said of the process for resolving a dispute between OIRA and the agency proposing an action. In short, in addition to worries about the substance of OIRA review, including the displacement of agency decision makers and the superimposition of a cost-benefit test on non-cost-benefit statutes, there were large concerns about the process as well.

With Executive Order 12866, President Clinton at least addressed the concerns related to process. He imposed deadlines on OIRA review – 90 days in most cases, with a 30-day extension if the agency and OMB agreed to it. He required transparency throughout the OIRA process – from publicly disclosing the rules under review to written statements about whether a dispute had been elevated within the White House, to descriptions of changes made at the suggestion or recommendation of OIRA, to written explanations of why OIRA was not approving a rule in its current form. President Clinton also created an orderly process, overseen by then-Vice-President Al Gore, to elevate and resolve disputes that OIRA and the agency could not settle. He placed limits on contacts with outside parties and imposed requirements for disclosing these contacts.

Disappointing some critics of White House regulatory review, President Clinton neither pulled back from such review nor dropped the use of cost-benefit analysis as a test for agency rules. But his executive order at least held out the promise of making White House review as expeditious, transparent, and orderly as possible.  

Unfortunately, however, these aspects of Executive Order 12866 are all but dead. OIRA blows past the deadlines imposed by the order with casual abandon. Average review times are longer by far than they have ever been. OIRA and the agencies disobey almost all of the transparency requirements of the order. OIRA engages in “informal” review of agency actions so that it can pass on their wisdom before any public record of its involvement is created. Elevations of disputes beyond OIRA and the agency are not disclosed. Descriptions of changes insisted upon by OIRA are often lacking, and even when they are provided, they usually take the form of impenetrable redlined documents showing revisions that occurred after a rule went to OIRA. Rules die at OIRA without a written explanation. Rules are elevated beyond the agency and OIRA in an unstructured and even chaotic environment, in which any office or person in the White House might have a voice in determining whether a rule will issue. Meetings with outside parties on rules under review at OIRA are dominated by industry groups and the public has little information about what occurs during those meetings.

President Obama’s own executive order on regulatory review, issued in 2011, discusses only the substance, and not the process, of regulatory review, and thus fails to solve any of the problems related to delay, transparency, or procedural regularity that I have described. Nor has OIRA itself solved these problems. Lately, there have been some encouraging signs that Howard Shelanski, OIRA’s new administrator, is moving to clear the backlog of rules delayed at OIRA. We must wait and see, however, whether this trend continues and whether Mr. Shelanski will also improve OIRA’s currently dismal record on following the other requirements of Executive Order 12866, particularly the requirements related to transparency. One of the defaults of government most corrosive of public trust is to promise transparency – even boast about it – while delivering mostly secrecy.