Yesterday, the Trump Administration issued an Executive Order titled “Ensuring Accountability for All Agencies” (the EO).  The EO asserts Presidential authority over independent agencies, including the Federal Trade Commission (FTC), Federal Communications Commission (FCC), and Securities and Exchange Commission (SEC).  While the precise impacts remain to be seen, overall the EO will likely result in greater involvement by the White House in policymaking at independent agencies, both in substance and process.

OIRA Review of Agency Regulations.  The EO amends the Clinton Administration-era Executive Order 12866, which established a review process for regulations promulgated by executive branch departments and agencies but excluded independent agencies from that process.  The process includes requirements that departments and agencies submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) for review before publication in the Federal Register.  Executive Order 12866 defines “significant regulatory action” to mean “any regulatory action that is likely to result in a rule that may:”

1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
4. Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order.

Yesterday’s EO revises the definition of “agencies” to remove an exemption for “independent regulatory agencies.”  The amended definition includes an exemption for the Federal Reserve “in its conduct of monetary policy.”

Performance Standards and Management Objectives.  The EO directs the Director of the Office of Management and Budget (OMB) to “establish performance standards and management objectives for independent agency heads” and “report periodically to the President on their performance and efficiency in attaining such standards and objectives.”

Apportionments for Independent Regulatory Agencies.  The EO directs the OMB Director to “review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities” on an ongoing basis.  It further directs the OMB Director to “adjust such agencies’ apportionments by activity, function, project, or object” in order to advance such policies and priorities.

Additional Consultation with the Executive Office of the President.  The EO sets out three additional measures for increased oversight and coordination between independent regulatory agencies and the Executive Office of the President:

1. Regular consultation and coordination with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council on agency policies and priorities;
2. Creation of a White House Liaison position in each agency; and 
3. Submission of agency strategic plans developed pursuant to the Government Performance and Results Act of 1993 to the OMB Director for clearance prior to finalization.

Rules of Conduct Guiding Federal Employees’ Interpretation of the Law.  The EO orders that “the President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.”  It states that their “opinions on questions of law are controlling on all employees in the conduct of their official duties” and that “no employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes” such opinions, including by issuing “regulations, guidance, and positions advanced in litigation.”