Editor’s Note: See also The Iconic Executive Order 12291: The Precedent for the Preservation of Critical Executive Orders and The 50th Anniversary of Centralized Regulatory Review.

From: GW Regulatory Studies Center

By: Mark Febrizio, Daniel R. Pérez, & Zhoudan Xie

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Rao acknowledged that the Administration was contemplating extending E.O. 12866 to independent regulatory agencies, an action supported by Richard Revesz, Lawrence King Professor of Law & Dean Emeritus at NYU Law School and Director of the Institute for Policy Integrity. He stated that some independent financial agencies face court challenges on their rules due to their lack of expertise in regulatory analysis. In such cases, OIRA could provide the expertise and help independent agencies address related issues.

Revesz was less enthusiastic about legislation to codify the principles of E.O. 12866, and he questioned the extent to which generic legislation could be expected to override the specific instructions found in agencies’ authorizing legislation. Revesz also expressed concern that the current deregulatory efforts focused primarily on cost savings while ignoring benefits foregone, and agencies are not always consistent in counting co-benefits in regulatory impact analyses. He pointed to examples where courts are overturning deregulatory actions for inadequate analytical justification. Rao responded that all deregulatory actions are based on a net-benefit test and that President Trump’s E.O. 13771 is consistent with E.O. 12866. She also suggested it can improve retrospective reviews by providing incentives to agencies to review the existing regulations that are not working well.

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