How Bill Clinton, 28 Years Ago, May Have Unwittingly Saved America
Joe Biden Himself Has Identified Executive Order 12866 as His Guiding Light
Perhaps history books in the future will record when it was that they changed the prolifically arcane process that has to be undertaken in order to implement monumental regulatory changes in the United States. One could argue that lawmaking and regulation promulgating have become protean undertakings in this post 2019 world of “pandemic concerns”. Nonetheless, past is prologue, so the implementation process still must be examined through the prism of a document written in 1993. A massive regulation is not as easy to fast-track as the media might have you believe.
President Bill Clinton issued Executive Order 12866 on October 4, 1993. It requires benefit-cost analysis for any new regulation that is "economically significant," which is defined as having "an annual effect on the economy of $100 million or more". If that standard applies, then a Regulatory Impact Analysis (RIA) is required. President Donald Trump beefed up Clinton's EO 12866. But on his very first day in office, January 20, 2021, Joe Biden immediately rescinded Trump's higher octane EOs pertaining to Clinton's EO 12866. Biden however never laid a glove on Clinton's 1993 EO 12866.
The proposed OSHA rule on vaccine mandates clearly falls under Clinton's EO 12866. The agencies reviewing the vaccine mandates must prepare a Regulatory Impact Analysis. The procedures adhered to by the agencies are delineated in the Administrative Procedure Act, 5 USC 551 et seq.
Quoting the exact words of Joe Biden:
This process [the vaccine mandate regulatory process] is largely governed by Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), as amended. This memorandum reaffirms the basic principles set forth in that order and in Executive Order 13563 of January 18, 2011.
No one is questioning that the proposed OSHA rule on vaccine mandates clearly falls under Clinton's EO 12866. But the press has failed to examine the fact that the agencies reviewing the vaccine mandates must prepare a Regulatory Impact Analysis. Under the Administrative Procedure Act (“the ACA”) a notice of proposed rulemaking (NPRM) is a public notice that is issued by law when an independent agency of the US government wishes to add, remove, or change a rule or regulation as part of the rulemaking process. The notice is an important part of U.S. administrative law, which facilitates governmental processes by typically providing a process for the taking of public comment.
It takes several months to complete this process, unless there is “an emergency” involved (you can see where this is heading). In case you were wondering if the ACA is an important law, indeed it is. For example, it was the law that led to President Trump ultimately losing the DACA case, albeit temporarily. The official “DACA” case was Department of Homeland Security v. Regents of the University of California. In that case, SCOTUS delivered its opinion on June 18, 2020. In the 5–4 decision, the Court's majority determined that the decision to rescind the DACA program was "arbitrary and capricious" under the APA, and thus reversed President Trump’s order ending DACA.
The issues in the DACA case were different from the vaccine mandate issues, but the fact remains, if the vaccine mandates are ever challenged in court, then the ACA rules will be pivotal to their ultimate survival.
Clinton’s 1993 Executive Order starts off with a preamble that sounded almost “Reaganite” in its tenor:
The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today.
Reading further into the Clinton EO 12866, note the underlying “philosophy” that led to its issuance:
Section 1. Statement of Regulatory Philosophy and Principles. (a) The Regulatory Philosophy. 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. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.
Under Executive Order 12866, the procedure for determining whether a draft rule is significant (and thus subject to review by the Office of Information and Regulatory Affairs [“OIRA”]) or economically significant (and thus subject to the requirement to prepare a Regulatory Impact Analysis), begins with agencies preparing entries to the semi-annual Unified Regulatory Agenda, which OIRA reviews before publication in the Federal Register, along with each agency’s Regulatory Plan. Agencies are required to engage in prior consultation with both private and public stakeholders before drafting notices of proposed rulemaking, and ensuring that they have at least 60 days for public comment. Given the fury that has arisen over vaccine mandates, the “public comments” required under the ACA should be quite exciting, to say the least.
OIRA may return a draft rule to an agency "for further consideration of some or all of its provisions," accompanying any return with "a written explanation ... setting forth the pertinent provision of [Executive Order 12866] on which OIRA is relying."
The reach of Executive Order 12866 was extended by President Barack Obama in Executive Order 13563 to require agencies to conduct retrospective reviews of existing regulations.
Regulatory Impact Analyses under Circular A-4
Regulatory Impact Analyses are governed by guidance issued by Office of Management and Budget, OMB Circular A-4. Circular A-4 requires agencies to clearly identify why regulation is needed, consider a reasonable number of alternative regulatory approaches, and for each alternative conduct a rigorous and objective benefit-cost analysis. OIRA reviews RIAs for transparency, utility, and objectivity.
Enforcement of the proposed order occurs during a public comment period after the agency receives public comments, and before the agency publishes a final rule. Notices of Executive Order reviews are not published. OMB receives comments and will conduct meetings (with agency representatives present) to conduct reviews.
As the reader has seen from the procedures analyzed above, the rules Joe Biden must adhere to in implementing his “vaccine mandates” are extremely attenuated and prolix. He will probably end up employing COVID as an excuse to broom away all of the 1993 safeguards identified above. Despite the rules already in place, this entire complex development is being treated by the media as if it were going to be a cakewalk. A cakewalk it is not, and when the regulation is finally issued, several states are already planning to challenge it in federal court. How ironic it will be if something Bill Clinton issued in 1993 ends up saving the Republic from the horror of having millions of essential workers thrown out of their jobs. In the meantime, keep an eye out for that Regulatory Impact Analysis. And keep an eye out for those public comments.