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Soft Law Reform or Executive Branch Hardball: The Ambiguous Message of Executive Order 13,422, Yale Journal on Regulation 97 (2008)


Imagine that Executive Order (E.O.) 13,422 had been issued by President Al Gore, accompanied by the following press release: Regulation by executive branch and independent agencies of the federal government has become a defining feature of the American administrative state. Over the past four decades, the decisions of the federal courts interpreting the requirements of the Administrative Procedure Act and the analytic and oversight requirements implemented by my predecessors, Presidents Reagan and Clinton, have made regulatory policy more transparent, participatory and rationalqualities that almost all would agree are the hallmarks of good governance in a democratic society. These achievements are to some degree jeopardized, however, by the increasing use of agency guidelines as substitutes for formal regulations. These guidelines are technically non-binding, but often operationally controlling for lower level officials and regulated parties. Moreover, this "soft law" is generally not subject to judicial review, the participatory and transparency requirements of the Administrative Procedure Act, or the analytic requirements of existing executive orders and congressional statutes. Under the changed circumstances of extensive substitution of guidance documents for agency rules, E.O. 13,422, along with a Bulletin on Good Guidance Practices issued today by the Office of Management and Budget (OMB), seeks to maintain the gains in good governance that have emerged over the last forty years. Henceforth, guidance documents, if economically significant, will be subject to procedures similar to the notice and comment requirements for substantive regulations under the Administrative Procedure Act. Moreover, all significant guidance documents will be submitted to OMB, Office of Information and Regulatory Affairs, and posted on agency websites. These postings will include an explanation of why the guidance was needed and how it carries out the agency's purposes. Guidance documents and their explanations will be subject to the OMB review and consultation requirements that currently apply to agency regulatory actions. Finally, to ensure that agency guidance and other actions are part of a coherent and affordable program of regulatory action, inclusion of regulatory actions in an agency's annual regulatory agenda and the commencement of proceedings to take any such action will be authorized by a presidential appointee within each agency, either the Regulatory Policy Officer (RPO) established by President Clinton's E.O. 12,866, or the agency head.

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