Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues [September 10, 2012] [open pdf - 340KB]
"Federal agencies regularly adopt rules, which have the force of law, to implement the statutes and programs authorized by Congress. Unless a statute directs otherwise, agencies generally must follow the requirements of the Administrative Procedure Act to promulgate rules. However, beginning with President Reagan, Presidents have maintained a centralized review process for 'significant regulatory actions.' Currently, Executive Order (EO) 12866, issued by President Clinton, imposes additional procedures agencies must follow before a rule can be finalized. This includes requiring agencies to submit proposed regulatory action to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) for review. Although EO 12866 applies to executive agencies, independent regulatory commissions (IRC) are not required to submit their rules to OIRA for review. Debates have arisen among scholars and legislators as to whether the President has the authority to require both executive agencies and IRCs to submit their regulations for review by OIRA. In the 112th Congress, Senator Rob Portman introduced S. 3468, the Independent Regulatory Agency Analysis Act of 2012. This bill would authorize the President to issue an executive order establishing centralized review procedures for IRCs. This report discusses the constitutionality and the legal effects of extending centralized review of rulemaking to IRCs."
CRS Report for Congress, R42720