by Susan Dudley (Original source: The Regulatory Review)
The decade since The Regulatory Review began publishing has seen dramatic shifts in regulation, with two administrations that arguably pursued the most regulatory and least regulatory agendas of any President in recent history. Yet, despite the changes in regulatory rhetoric over the last decade, core principles and practices have endured.
Ten years ago, the economy was emerging from the Great Recession, and President Barack H. Obama was in his second year in office. Soon after his inauguration, he signed a memorandum directing the Office of Management and Budget (OMB) to work with regulatory agencies to provide him with recommendations for a new executive order to replace President William J. Clinton’s 1993 Executive Order 12,866 governing regulatory analysis and the review of significant regulatory actions by OMB’s Office of Information and Regulatory Affairs (OIRA).
President Obama acknowledged the importance of that 1993 order in guiding the review of regulations “to ensure consistency with presidential priorities, to coordinate regulatory policy, and to offer a dispassionate and analytical ‘second opinion’ on agency actions.” He also thought, however, that during “this time of fundamental transformation” the process of reviewing regulations—as well as “the principles governing regulation in general—should be revisited.” His Administration sought recommendations about various aspects of the regulatory process, including OIRA’s relationship with federal agencies, the reduction of undue regulatory delay, the role of benefit-cost analysis, and the possible roles for “the behavioral sciences in formulating regulatory policy.”
The next year, President Obama signed a new order, Executive Order 13,563. But this order did not reflect a fundamental transformation of the regulatory process nor make changes to the principles governing regulation. Instead, the new order reaffirmed Executive Order 12,866, while modernizing the role for public participation by encouraging greater use of the internet, as well as by providing supplemental directives aimed at improving coordination, strengthening retrospective review of existing regulations, and expanding reliance on “regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.” President Obama also issued Executive Order 13,579, which, for the first time, encouraged independent agencies to conduct analysis of new and existing regulations.
During President Obama’s tenure, agencies issued rules at a faster pace than during prior administrations. For example, when the U.S. Congress failed to pass climate legislation, the President relied on existing statutes to pursue regulation of greenhouse gas emissions from vehicles and power plants. Furthermore, Congress did pass two significant laws early in his presidency, the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act. These laws greatly expanded federal regulatory agencies’ responsibilities with respect to financial markets and health care, respectively.
By the end of President Obama’s tenure, agencies had issued almost 500 “economically significant” regulations—that is, rules with impacts estimated to be more than $100 million per year. The Code of Federal Regulations grew 17 percent from 2009 through 2016.
President Obama’s successor, however, has taken a dramatically different approach to regulation.
Continue reading the original article on The Regulatory Review.