Executive Order 12866

[5] Section § 1(a) summarizes this regulatory philosophy as follows:Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people.Agencies were directed to fulfill these requirements though economic analysis,[6] most notably the preparation of Regulatory Impact Analyses (RIAs).

[8] Executive Order 12866 provides for a centralized review conducted on behalf of the President by OIRA (the same agency directed by Congress to implement the Paperwork Reduction Act).

[12] Drafts of significant regulatory actions must be transmitted to OIRA for review, along with assessments of their potential costs and benefits.

"[16] The reach of Executive Order 12286 was extended in 2011 to require agencies to conduct retrospective reviews of existing regulations.

Executive Order 12866 concludes with the statement This Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

President Gerald Ford's organized, comprehensive effort at regulatory reform, and to address inflationary impact of federal government activities and regulation, began with establishment of the Council on Wage and Price Stability (CWPS) in August 1974.

The council was charged with monitoring the private sector economy, and reviewing government programs to determine their impact on inflation.

In November 1974, President Ford issued Executive Order 11821, which established procedures for preparing Inflation Impact Statements, that required agencies to evaluate economic impact of regulatory proposals, specifically their effects on productivity and competition, and to submit those statements to CWPS for review.

[21] In 2002, Cass Sunstein, who would later serve as President Obama's Administrator of the Office of Information and Regulatory Affairs, co-authored an article on a proposed replacement.

E.O 13563 requires agencies to quantify anticipated benefits and costs of proposed rulemakings as accurately as possible using the best available techniques, and to ensure that any scientific and technological information or processes used to support their regulatory actions are objective.

13563 instructs agencies to periodically review their significant regulations with the goal of making their regulatory programs more effective or less burdensome.

Whereas Executive Order 12866 contained a long list of regulatory principles, in which the maximization of net social benefits is one of many, Executive Order 13771 directs agencies "to be prudent and financially responsible in the expenditure of funds, from both public and private sources" and to "manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations".

The Order also generally prohibits agencies from proposing or promulgating regulations not previously published in the Unified Regulatory Agenda.

"are outdated, unnecessary, or ineffective," "impose costs that exceed benefits," or "create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies."

55235 (Oct. 15, 2019), and Executive Order 13892, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, reprinted at 84 Fed.

Both Executive Orders are generally directed to requiring federal agencies to "act transparently and fairly with respect to all affected parties ... when engaged in civil administrative enforcement or adjudication."

For the most part, Executive Orders 13891 and 13892 are simple reminders and restatements of long-standing requirements of the Administrative Procedure Act (APA).

Covered guidance documents are defined to include anything to which the agency intends to give prospective effect, that is promulgated without the formality of "regulation" (E.O.

13892 requires agencies to "afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose" (emphasis added).

"When an agency takes an administrative enforcement action, engages in adjudication, or otherwise makes a determination that has legal consequence for a person, it may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise."

12892 highlights the breadth of what it means for an Agency's position to be an "unfair surprise", as discussed in Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

13892 explains that agencies "must avoid unfair surprise not only when it imposes penalties but also whenever it adjudges past conduct to have violated the law."