Nothing quite focuses the mind like a deadline. People serving in an outgoing Administration are keenly aware that the time to accomplish their goals is rapidly dwindling. Perhaps it was this end-of-Administration sensation that inspired the Department of Justice’s Office of Legal Counsel to post on its website, on December 30, 2020, a 31-page opinion dated nearly 15 months earlier, October 8, 2019.
That OLC memo harkens back to Executive Order 12866, signed by President Bill Clinton in 1993, and adhered to by each Administration since then. Established in 1980 with the Paperwork Reduction Act, the Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget, has performed a centralized review of regulations since President Reagan’s 1981 Executive Order 12291.
To coordinate regulatory activity across an entire Administration, EO 12866 requires all agencies to submit an annual regulatory plan and agenda to OIRA. And it requires agencies to conduct a cost-benefit analysis for “significant regulatory actions” and to submit them to OIRA for review prior to publication. But it exempts “independent regulatory agencies” (as defined in 44 U.S.C. § 3502) from this last requirement.
The OLC Memo concludes that the President has the authority to eliminate that exemption and to require independent regulatory agencies to comply with all of EO 12866.
Susan Dudley’s and Sally Katzen’s recent op-ed in the Wall Street Journal (subscription required) describes this development and, as its title suggests, describes “One Trump-Era Notion Biden May Want to Embrace” – the requirement of cost-benefit analysis, and the implementation of OIRA review for all federal agencies, including “independent” ones.
Along these lines, too, Prof. Dudley has prepared a taut and clear Advice for the Biden-Harris Administration: Embrace Regulatory Humility. In addition to encouraging informed and robust cost-benefit analysis, Prof. Dudley advises respecting time-tested regulatory practices, including conducting holistic, evidence-based assessments of all regulatory impacts to balance competing considerations.