Congress held back-to-back hearings Feb. 13 on President George W. Bush's Executive Order that amended the federal regulatory process. The first hearing primarily addressed the content of the amendments and the Good Guidance Practices Bulletin, both issued Jan. 18. The second hearing focused more on the legal and institutional challenges Bush's amendments raise.

In the first hearing, held by the House Committee on Science and Technology's Subcommittee on Investigations and Oversight, Chairman Brad Miller (D-NC) focused on the significant consequences of the changes and how centralizing executive power over the federal agencies will affect Congress's ability to protect public health and safety.

Three of the witnesses agreed that the amendments would lead to:

• significant delay in issuing regulations and guidance documents that the regulated community needs to comply with legal requirements;
• additional burdens on agencies already experiencing budget and personnel cuts and an increase in the analyses required in the regulatory process; and
• additional power for the Office of Information and Regulatory Affairs (OIRA) over the substance, timing, and review of critical public protections.

The House Committee on the Judiciary's Subcommittee on Commercial and Administrative Law held the second hearing. Chairwoman Linda Sanchez (D-CA) asked why the amendments and bulletin would encourage agencies to use more formal rulemaking avenues while other members focused on what Congress can do to mitigate the effects. Rep. William Delahunt (D-MA) addressed the pattern of presidential encroachment on congressional powers the amendments represent, calling it "institutional combat."

Witnesses at this second panel expressed alarm at the legal authority that could be given to presidentially appointed Regulatory Policy Officers (RPO) without the approval of Congress and without Senate confirmation. Also, the substitution of criteria like "market failure" for specific criteria Congress establishes in legislation is a legislative power grab by the executive branch and raises separation of powers issues that could lead to constitutional challenges.

The panel members addressed actions Congress could take to challenge the amendments. Options include:

• exploring appropriations riders to limit the implementation of some of the changes like market failure analyses;
• increasing congressional oversight of OIRA and especially the guidance it will issue to direct agencies in implementing the changes;
• urging the Senate to exert its advise and consent role over presidential appointees because nearly all of these appointees in regulatory agencies are confirmed by the Senate; and
• exploring legislative responses, such as exempting independent agencies from the guidance requirements or inserting specific authorizing legislation that limits the scope of or requires specific regulatory criteria.

Most of the supporters of Bush's amendments argued that there was nothing new in the changes and/or that they were just extensions of existing practices. They also said that the changes were necessary to codify "good government" practices. Some of the more disingenuous arguments in support of the amendments were that including a section on the formal rulemaking process (a trial-like hearing) was merely a reminder to agencies that a formal process existed, not encouragement to use it; that market failure was integral to the Clinton-era executive order that Bush's action amended; and that presidentially appointed RPOs are not new.

If these claims are true, opponents argued, then why did Bush issue an executive order? Perhaps without a compliant Republican Congress, he can't achieve these administrative changes legislatively or by acquiescence. Also, the reach of the order is well beyond the guidance bulletin's, making additional action necessary. For example, requiring RPOs, aggregated costs and benefits assessments, and market failure criteria are mandates the guidance bulletin could not accomplish on its own.

As with the Iraq war, ethics in government, contractor responsibility, and the federal budget, there is no longer just one voice echoing from Capitol Hill. There may be limited changes Congress can make to mitigate the effects of the amendments, but the hearings indicate a willingness to shine some light on executive actions aimed at protecting special interest backers of the administration, and to exert the authority of Congress.

The amendments and the guidance bulletin go into effect in late July, and only then will we be able to gauge the real impacts of the changes. In the meantime, look for OIRA to issue guidance to agencies clarifying the new amendments, probably by amending Circular A-4, Regulatory Analysis which is the current directive used by the agencies. We urge Congress to give tough scrutiny to any guidance issued and continue oversight of these important regulatory issues.