Presidential Oversight of Independent Agency Rulemaking: A Literature Review

Over the course of the last several decades, the role of the President vis-à-vis the administrative state has undergone a profound evolution. Central to this development is President Clinton’s Executive Order (EO) 12866, issued in 1993—a landmark directive that modernized and reinvigorated the process by which federal agencies promulgate significant regulations. Like his predecessors, President Clinton declined to extend EO 12866’s cost-benefit analysis and centralized review requirements to independent agency rulemakings. This Note provides a literature review of the competing perspectives regarding the legal permissibility and desirability of that choice and the choice of every President since to do the same. Historically, independent regulatory agencies have enjoyed a certain degree of autonomy from the executive branch, which safeguards their decision-making processes from overt political influences—at least in theory. This insulation, historically justified on the basis of expertise and impartiality, has been a fierce subject of debate, with critics arguing that it shields agencies from democratic accountability and proponents arguing that it promotes stability and predictability in the administrative state. Extending EO 12866’s cost-benefit provisions to independent regulatory agencies raises critical questions about the nature of presidential administration and the evolving role of the President in shaping regulatory policy. As of yet, however, no legal consensus has been reached regarding the President’s authority to do so. This Note seeks to illuminate this legal gray area by providing an overview of the competing perspectives in the form of a literature review.