미국에서의 대통령에 의한 규제심사 : 몇 가지 쟁점을 중심으로

Abstract

The U.S. presidential regulatory review system has been developing over 30 years. Occasionally, this system was criticized by many people including academics because of its abuse by the political power group. Nevertheless, the review system have been stabilized and institutionalized over time. This article overviews development of the presidential review system of federal rulemaking and its particular aspects. After selecting some of meaningful legal issues, which raised by critics in the historical development of the U.S. review system, this article analyzes them and seeks possible implications for korean case. Some of conclusions in this article are as follows:First, in light of "take care clause" and "opinion clause" of the U.S. constitution, the president is not the agency, but the executive branch which taking care of and consulting with agencies. Agencies' authority and responsibility is allocated and imposed by the Congress according to U.S. constitution article 8, 18(necessary and proper clause). The president persuasively is an "Overseer", not a "Decider". Accordingly, OIRA should function as a "Counsellor" or "Coordinator", not as a "Gatekeeper". This position is much more consistent with the current executive order 12866. In Korea, the relationship between president and agency is not the crucial legal issue. That's because Korean constitutional law definitely gives the president, as a chief of the executive, an ultimate decisive authority. Second, executive order 12866 provides transparency clauses with unprecedented strict standard which requires OIRA to obey. This is a defending installation against the most secret regulatory review in Reagan administration. In light of korean experience, this kind of transparency clauses adversely need to apply to agencies rather than regulatory review institute. The U.S. regulatory review tracking system and "reginfo.gov" would be worth of taking a close look for improvement of our regulatory review information service. Third, delay in the regulatory review system is not likely to have significant problems except the case of Reagan administration's unduly use. Rather, delay in the entire rulemaking process have more problems. Lots of procedural and analytical requirements of rulemaking and two time's review(proposed rules and final rules) should be simplified. In korea, delay is not the major concern and adversely "too hurry" sometimes makes problem. Fourth, newly incorporating independent regulatory agency's rules into the scope of individual review by OIRA seems to be unsuccessful because of Congress' opposition and legal disputes in court. One of possible alternatives is to lead independent regulatory agencies to participate in the OIRA regulatory analysis review program on their own initiative. This is a story which is far from the case in Korea. Finally, attempting to incorporating "significant guidance documents" into the scope of regulative review by OIRA, I think, is a step in the right direction under the condition of limiting to only significant guidance documents which have almost the same legal effect as that of rules. This argument definitely apply to Korean guidance documents.