Michael Hissam · August 2008
76 GEO. WASH. L. REV. 1292 (2008)
On January 18, 2007, President Bush issued Executive Order 13,422. This Order was issued on the same day that the White House Office of Management and Budget (“OMB”) issued the Final Bulletin for Agency Good Guidance Practices. According to recent commentary, these two documents introduce the potential for a marked expansion of presidential oversight of agency administration.
This Essay attempts to analyze the legal and policy issues arising out of the changes put in place by Executive Order 13,422 and the Final Bulletin. In the final analysis, this Essay argues that much of the criticism lodged against these reforms is misplaced. On the contrary, these reforms are part of a gradual accretion of centralized review of agency regulatory action in the White House. In addition, much of Executive Order 13,422 continues the policies and practices that governed agency review in prior administrations. Although significant changes have been made, those changes are not on their own indicative of a revolution in presidential oversight of agency administration.
Part I first briefly discusses the development in the last four decades of centralized presidential oversight of the administrative state, how that oversight has varied in different administrations, and concerns often raised with respect to that oversight function. Next, Part I offers a summary of the changes made by Executive Order 13,422 and the Final Bulletin in this area. Part II offers a subjective analysis of the new changes, considering their impact on the balance between agency heads and the President, on agency independence and flexibility, and on the regulatory agenda as a whole.
