Monday, July 11, 2011
President Obama issued an Executive Order today designed to "streamlin[e], improv[e], and eliminat[e] regulations" of independent regulatory agencies, including the Consumer Product Safety Commission, the Federal Trade Commission, the Federal Communications Commission, and the Securities and Exchange Commission. The EO is directed to get independent agencies on board with regulatory reforms that the administration required in its earlier EO, issued in January. (OIRA Chief Cass Sunstein told the House Energy and Commerce Committee in June that no independent agencies had submitted a plan under the earlier EO.)
The EO says that each independent regulatory agency within 120 days
should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
The White House touts the EO as an "historic initiative" that will stimulate job creation and promote economic growth.
Like the January EO, the new EO leaves plenty of wiggle room ("consistent with law and reflecting its resources and regulatory priorities") and leaves the review and plan to the agencies themselves. But in contrast to the mandatory language in the January EO, the new EO, aimed exclusively at independent agencies, appropriately uses hortatory language ("should develop and release to the public a plan"), stepping back from directing the independents.
For a very recent argument that the President lacks directive authority even for non-independent agencies, check out Prof. Bob Percival's (U. Md.) forthcoming piece in the Fordham Law Review, Who's in Charge? Does the President Have Direct Authority Over Regulatory Decisions?
[Image: Man Controlling Trade, Model, Federal Trade Commission Building, Smithsonian Institution]