PART II
PRESIDENTIAL OVERSIGHT OF
REGULATORY DECISIONMAKING
PRINCIPAL PAPERS
PRESIDENTIAL CONTROL OF
REGULATORY AGENCY
DECISIONMAKING
THOMAS
0.
MCGARITY*
INTRODUCTION
Control over the exercise of regulatory agency discretion continues to be an important battleground in the unending confrontation
between Congress and the President over the locus of governmental
power in domestic affairs. Proposals for increasing presidential control over administrative rulemaking have surfaced in scholarly commentary,' in regulatory reform bills, 2 and in a recently passed
resolution of the American Bar Association. 3 While none of the legislative attempts to institutionalize presidential control have succeeded, the last three Presidents have issued executive orders
expanding presidential oversight of the rulemaking process. The
most recent executive orders, promulgated by President Reagan,
*
William Stamps Farish Professor of Law, University of Texas School of Law.
1.
See DeMuth & Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV.
1075, 1080-88 (1986) (discussing benefits and answering criticisms of White House review of
agency rulemaking); Pierce, The Role of Constitutionaland Political Theory in Administrative Law, 64
TEx. L. REv. 469, 520-24 (1985) (expressing desirability of presidential control over and judicial deference to agency rulemaking).
2. See S. 1080, 97th Cong., 1st Sess., 128 CONG. REC. 5, 297-305 (1982) (amending
Administrative Procedure Act by setting standards for judicial review of agency action).
3. ABA Report, Administrative Law Section, agenda Item F (1986). See Strauss & Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN. L. REv. 181, 206-07
(1986) (supporting implementation of Exec. Order Nos. 12,291 and 12,498).
443
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are by far the most comprehensive and far-reaching. 4 Not surprisingly, these unilateral attempts to consolidate presidential power
have met increasing resistance on Capitol Hill. Several House committees and subcommittees have harshly criticized the Reagan administration's efforts, accusing the chief overseers in the Office of
Management and Budget (OMB) of waging a war against the statutes that the regulatory agencies administer.5 The House Appropriations Committee has gone to the extreme of striking the
appropriation for the OMB office in charge of overseeing agency
6
rulemaking.
It is appropriate at this juncture to analyze once again the President's role in regulatory agency decisionmaking. I will also examine
Congress' constitutional power to structure agency decisionmaking
to determine the roles that the President, his White House staff, and
the staff of OMB may play. I will argue that the President ought to
play a more limited role in regulatory agency decisionmaking than
some of the recent regulatory reform proposals suggest. Nevertheless, the primary purpose of this Article is to take issue with recent
suggestions that Congress lacks the power under the Constitution
to limit presidential attempts to control executive agency decisionmaking in informal rulemaking)' Although Congress has exercised
very limited direct control over presidential interference in informal
rulemaking, it can do so under its spending power8 and its power
4. Exec. Order No. 12,291,46 Fed. Reg. 13,193 (1981) (ordering measures designed to
reduce regulatory burden, increase agency accountability, provide presidential oversight of
regulatory process, minimize duplications and conflict of regulations, and ensure well-reasoned regulations); Exec. Order No. 12,498, 50 Fed. Reg. 1036 (1985) (ordering provisions
intended, among other things, to coordinate Administrative Regulatory Programs and reduce
conflict ofregulations). Exec. Order 12,291 has been called a "marked departure from previous presidential efforts to control administrative lawmaking." Rosenberg, PresidentialControl
of Agency Rulemaking: An Analysis of ConstitutionalIssues That May Be Raised By Executive Order
12291, 23 ARIZ. L. REV. 1199, 1200 (1981). Another commentator calls it "a bold innovation
and the obvious next step in the evolution of Presidential oversight of the regulatory process." Shane, PresidentialOversight and the Separation of Powers: The Constitutionality of Executive
Order 12291, 23 ARIZ. L. REV. 1235, 1235 (1981).
5. See HousE COMM. ON ENVIRONMENT AND PUBLIC WORKS, 99TH CONG., 2D SESS., OFFICE OF MANAGEMENT AND BUDGET INFLUENCE ON AGENCY REGULATIONS (Comm. Print 1986)
(reviewing OMB's authority under law and executive orders and presenting case studies of
OMB intervention in agency rulemaking activities).
6. See S. 2023, 99th Cong., 2d Sess. (1986) (discussing proposed statute to subject
OMB rulemaking activities to closer scrutiny and to limit OMB review period to 30 days).
7. See Strauss, The Place of Agencies in Government: Separation of Powers and The Fourth
Branch, 84 COLUM. L. REV. 573, 640-66 (1984) (arguing Congress' ability to limit presidential
power is limited not only by general need to maintain tension between named branches, but
also by necessity of presidential power to coordinate agency decisionmaking effectively);
Verkuil,JawboningAdministrative Agencies: Ex ParteContacts by the White House, 80 COLUM. L. REv.
943, 981 (1980) (analyzing ex parte contacts in informal rulemaking and judicial decisions
restricting such contacts).
8. U.S. CONST. art. I.
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PRESIDENTIAL CONTROL OF DECISIONMAKING
445
under the necessary and proper clause.9 I will argue that Congress
should exercise direct control to preserve the integrity of informal
rulemaking as a modem decisionmaking tool. In particular, I will
maintain that the content of significant presidential contacts with
the agencies should be placed in the records of any adjudications or
rulemakings that those contacts are intended to affect. 10 Congress
has acted to preserve the integrity of formal administrative adjudication in sections 554 and 557 of the Administrative Procedure Act."
Arguing that the distinction between informal rulemaking and formal adjudication has little relevance to the question of presidential
intervention, I will conclude that Congress should enact more stringent limitations on ex parte attempts by the President and his staff
to influence informal rulemaking.
I.
THE CURRENT DEBATE
The debate about the propriety of presidential control over regu-
latory agency decisionmaking has ranged over an exceedingly broad
terrain. Agency decisionmaking structures come in many varieties
and presidential intervention can take many forms. The discussion
that follows will, therefore, take a global approach, examining a
range of potential congressional responses to various presidential
power claims in several different contexts.
A. PresidentialPowers and DecisionmakingContexts
The following analysis will focus on governmental decisionmaking that affects nongovernmental entities in contexts in which members of the public are expected or entitled to play a role. I will use
the word "proceedings" to distinguish these relatively rare decisionmaking contexts from other more common bureaucratic decisionmaking forms. I will focus primarily on congressional power to limit
the President's power to intervene ex parte and to direct the outcome of particular agency proceedings. In the course of the analy9.
Id. § 8, cl. 18.
10. Professor Houck suggests that this is not enough. He believes that Congress could
and should create quasi-independent agencies, not subject to presidential influence. Houck,
President X and the New (Approved) Decisionmaking, 36 AM. U.L. REv. 535, 549-54 (1987).
Although I see little constitutional difficulty with Professor Houck's idea, it may go too far as a
policy matter. First, it would be very difficult politically to pass legislation establishing quasiindependent agencies over a probable presidential veto. Second, I believe that the President
should have a general supervisory role over both independent and executive agencies, instructing them as to his policy preferences on matters that are not the subjects of particular
agency proceedings. Finally, insulating the President from decisionmaking may ultimately
reduce his accountability to the public for the actions of his appointees.
11. 5 U.S.C. §§ 554, 557 (1982).
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sis, I will question the validity of two familiar distinctions for
determining the appropriateness of presidential intervention.
First, I will examine the familiar, but increasingly controversial,
distinction between independent and executive agencies. For some,
the complete immunity of independent agency decisionmaking from
presidential interference is bedrock. I am inclined, however, to
agree with recent commentators who believe that the distinction is
not as important in the 1980s as it might have been in the 1930s and
that a functional approach might be more useful.1 2 Rather than urging a functional approach to support greater presidential involvement in independent agency decisionmaking, however, I find that it
demonstrates rather nicely why presidential intervention into executive agency decisionmaking should be limited.
Similarly, while many might argue that the distinction between
rulemaking and adjudication is critical to determining the appropriate role for the President in agency decisionmaking,' 3 I suggest that
it is less useful than might appear at first glance. It is now obvious
to even the casual observer of administrative decisionmaking that
agencies interpret law and make policy in adjudications.1 4 If presidential influence on policy questions is proper when agencies make
policy in rulemaking, why is it not equally appropriate when the
agency makes policy through adjudication? If there are good reasons for precluding presidential interventions in adjudications, but
not rulemakings, how shall agencies that have the choice be prevented from excluding presidential oversight through the simple expedient of making rules through adjudication?
B.
Arguments in Favor of PresidentialIntervention
A widely shared view of the late 1970s and early 1980s was that
federal regulation had gone seriously awry and needed fixing. 15 In12. See Bruff, PresidentialPowerand Administrative Rulemaking, 88 YALE LJ. 451,453 (1979)
(arguing for more practical approach in determining appropriateness of presidential intervention in agency activities); Strauss, supra note 7, at 579, 596 (finding that "independent" versus
"executive" distinction between agencies is outmoded).
13. See Pierce, supra note 1, at 512-13 (arguing that White House rarely attempts to interfere with individual agency adjudications).
14. See 2 K. DAvIs, ADMINISTRATrvE LAw TREAnSE § 7:25 (2d ed. 1979) (discussing instances where agencies have made new law through adjudication); DeLong, Informal Rulemaking and the Integration of Law and Policy, 65 VA. L. REV. 257 (1979) (evaluating cases showing
increasing judicial focus on agency choices). For one court's attempt to limit the extent to
which agencies make policy in adjudication, see Ford Motor Co. v. FTC, 673 F.2d 1008 (9th
Cir. 1981) (deciding that FTC exceeded its authority by proceeding through adjudication
rather than rulemaking). For a critique, see 2 K. DAVIS, supra, § 7:25 (Supp. 1982) (arguing
that rulemaking is superior to adjudication in making new law).
15. See G. EADS & M. Fix, RELIEF OR REFORM? REAGAN'S REGULATORY DILEMMA (1984)
(summarizing principal diagnosis and proposed remedies which were widely discussed by
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
447
creased presidential control of informal rulemaking was a fairly
common prescription for these regulatory ills. While some regulatory reformers may have believed that presidential control would
make regulation better serve its beneficiaries, most were either unsympathetic to regulatory goals or were willing to allow some decrease in benefits to reduce costs. 1 6 Whatever the underlying
motives of its proponents, presidential control has several undeniable advantages, the most prominent of which are examined in the
following section of this Article.
1.
Greater coordination
In a large and complex modern democracy that accepts govermental intervention into private markets, some grants of regulatory
power will inevitably overlap with others. Efficiency suffers, how7
ever, when a regulatee must clear overlapping regulatory hurdles,'
and uncoordinated regulation attracts unnecessary adverse public
attention.' 8 Lack of coordination also breeds embarrassing inconsistency in regulatory decisionmaking. 19 This inconsistency occurs,
for example, when one agency's unconstrained pursuit of its statutory goals clashes with another agency's similar pursuit of conflicting goals. 20 Occasionally, open warfare between agencies spreads
to the courts, which may express displeasure at the President's failure to keep his house in order.2 1 Regulatory reformers argue that
1980); DeMuth & Ginsburg, supra note 1, at 1075-80 (supporting executive review of agency
rulemaking); Garland, Deregulation andJudicial Review, 98 H.ARv. L. REv. 505, 507-08 (1985)
(analyzing standards and scope ofjudicial review of administrative deregulation); McGarity,
Regulatory Reform in the Reagan Era, 45 Mn. L. REv. 253, 254 (1986) (commenting on regulatory
reform implications).
16. See, e.g., Gray, PresidentialInvolvement in Informal Rulemaking, 56 TUL. L. REV. 863, 88889 (1982) (citing coordination of conflicting goals and lack of agency recognition of national
policy goals as rationales for presidential intervention); Cutler & Johnson, Regulation and the
PoliticalProcess, 84 YALE LJ. 1395, 1396 (1975) (discussing possibility of eliminating excessive
regulation while recognizing necessity of achieving public goals such as environmental
health); DeMuth & Ginsburg, supra note 1, at 1082-88 (favoring OMB review of agency
decisions).
17. For example, discharges of radioactive materials from nuclear power plants and disposal of low level radioactive wastes are subject to the jurisdiction of both the EPA and NRC.
See Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922, 934 (D.C. Cir. 1985) (rejecting challenge
to EPA's inclusion of plaintiffs' facilities on nationwide list of priority sites).
18. See Gray, supra note 16, at 863 (describing need for oversight and coordination of
rulemaking process to prevent adverse publicity); Shane, supra note 4, at 1245 (noting purpose of Exec. Order No. 12,291 includes coordinating agency compliance with national policy
goals).
19. See Bruff, supra note 12, at 451-56 (observing that overlapping agency jurisdiction can
result from absence of federal policy); Cutler &Johnson, supra note 16, at 1406 (arguing that
important problems cut across artificial boundaries of any given agency's jurisdiction and
expertise).
20. See Cutler &Johnson, supra note 16, at 1406 (finding artificial jurisdiction lines often
lead to inter-agency turf battles).
21. For example, the United States Department of Agriculture frequently intervenes into
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the President must have the authority to resolve these unseemly disputes, even if it means giving him the power to elevate one agency's
goals over another's. 2 2 The President's institutional position at the
apex of the federal bureaucracy puts him in a unique position to
23
perform this coordination function.
While the President should play a role in setting overall domestic
priorities and in steering agencies away from conflict and overlap, a
broad coordination function does not require extensive ex parte intervention into particular administrative proceedings. 2 4 Moreover,
the inconsistency and overlap arguments can be overstated.2 5 While
horror stories undoubtedly exist, the agencies themselves, at the
urging of affected interests, usually make arrangements to reduce
inconsistency and overlap. 26 The President and his immediate staff
rarely have the time or inclination to resolve the relatively minor
matters of inconsistency and overlap that frustrate regulatees.2 7
One solution is to create a new bureaucracy charged with coordinating the existing bureaucracy. To some extent this is the function of
the OMB under Executive Orders 12,29128 and 12,498.29 Adding a
new bureaucracy to achieve bureaucratic control, however, creates
problems of its own, not the least of which is its considerable expense. Finally, the coordination function appears equally as useful
for formal adjudication as it is for informal rulemaking. Although
EPA pesticide cancellation proceedings and has on occasion challenged EPA's final action in
the D.C. Circuit. See Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1306 (D.C.
Cir. 1975) (upholding EPA order suspending registration and prohibiting further manufacture and sale of several pesticides).
22. See Strauss & Sunstein, supra note 3, at 189 (summarizing basic reasons for presidential control over regulatory process); DeMuth & Ginsburg, supra note 1, at 1079-80 (describing recent policy coordination problem created by proliferation of rulemaking authorities).
23. See Bruff, supra note 12, at 462 (discussing President's implied statutory and constitutional authority to coordinate agency action).
24.
See Morrison, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regula-
tion, 99 HARV. L. REV. 1059, 1073 (1986) (suggesting OMB should be required to give public
notice when it is considering whether to deny agency permission to undertake studies).
25. See generally Jaffe, Invective and Investigation in Administrative Law, 52 HARV. L. REV.
1201, 1238-39 (1939) (rejecting notion that independent agencies necessarily obstruct effective over-all government management).
26. A good example is the Interagency Regulatory Liaison Group, which attempted during the Carter administration to coordinate policies for regulating toxic substances among
one independent and four executive agencies. See Interagency Regulatory Liaison Group Scientific Bases for Identification of Potential Carcinogens and Estimation of Risks, Report of the
Work Group on Risk Assessment, 44 Fed. Reg. 39,858 (1979) (consisting of CPSC, EPA,
FDA, and OSHA). Another good example of coordination is regulation of transportation of
hazardous wastes between EPA and the Department of Transportation. See Marten, Regulation
of the Transportationof Hazardous Materials, 5 HARV. ENVmL. L. REV. 345, 350-51 (1981).
27. See Bruff, supra note 12, at 469 (arguing that past presidents have not succeeded in
coordinating policy and that situation is unlikely to change).
28. Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (1981); see also supra note 4 (discussing
critiques of Exec. Order Nos. 12,291 and 12,498).
29. Exec. Order No. 12,498, 50 Fed. Reg. 1036 (1985).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
449
greater for rules that affect many parties, the potential for inconsistency and overlap is also present for policy determinations made in
30
individual adjudications.
2.
Enhancingaccountability
3
While the President is accountable to a national electorate, ' government bureaucrats are elected by no one, and many are not even
accountable to the President. In the modern rulemaking context,
most important decisions are not resolvable exclusively by reference
to technical expertise. Policy considerations must perforce play a
large role in resolving the uncertainties that inevitably arise in such
complex regulatory decisionmaking3 2 Many, therefore, believe that
the President, who has a broad national policy perspective, should
play a large role in determining the content of the policy that agen33
cies use to fill their considerable gaps in expertise.
The accountability argument, however, is equally applicable to
30. The potential is large enough that the Supreme Court of the United States regularly
must resolve conflicts among the circuits on legal questions in adjudications. Often, however,
the conflict must be resolved by the District of Columbia Circuit. For example, the EPA and
the Department of Agriculture have battled frequently over the appropriate policies to apply
in pesticide cancellations. See Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292 (D.C.
Cir. 1975) (upholding EPA order prohibiting manufacture and sale of several pesticides).
Similarly, policy clashes between EPA and NRC are just as likely to erupt in nuclear power
plant licensing proceedings and NPDES discharge permit proceedings as in broad rulemaking
proceedings.
31. Myers v. United Sates, 272 U.S. 52 (1926). The court stated:
The President is a representative of the people, just as the members of the Senate
and the House are and it may be at some times on some subjects, that the President,
elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, which constituencies are local and not countrywide ....
Id. at 123.
32. See Harter, Executive Oversight of Rulemaking: The President Is No Stranger, 36 AM. U.L.
REV. 557, 561-62 (1987) (describing discretion available to agency rule makers resulting from
lack of specificity of statutes); McGarity, Substantive and ProceduralDiscretion in Administrative
Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 GEO. LJ. 729,
731 (1979) (describing difficulty in attempting to resolve issues involving expert witnesses'
conflicting opinions). In the context of risk assessment for toxic substances, a report of the
National Academy of Sciences refers to this policy component as "risk assessment policy."
NATIONAL RESEARCH COUNCIL, RISK ASSESSMENT IN THE FEDERAL GOVERNMENT: MANAGING
THE PROCESS (1983).
33. See Bruff, supra note 12, at 454, 461-62 (recognizing that even highly technical decisions involve choices between competing economic and social goals); Cutler &Johnson, supra
note 16, at 1405-06, 1411 (arguing that regulation often involves political rather than technical decisions); Harter, supra note 32, at 562-63 (describing modern rulemaking as encompassing both technocratic and political concerns); Byse, Comments on a Structural Reform ProposalPresidential Directive to Independent Agencies, 29 ADMIN. L. REV. 157, 164 (1977) (arguing that
input by President as chief policy maker is sensible means to improve regulatory decisionmaking process); Pierce, supra note 1, at 520-21 (arguing that policy decisions should be made by
most politically accountable institution available); Strauss & Sunstein, supra note 3, at 190
(indicating that President's vantage point is especially important when there is national consensus that regulatory policy should be moved in particular direction).
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THE AMERICAN UNIVERSITY LAW REVIEW
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technically complex adjudications. A nuclear power plant licensing
proceeding or a National Pollutant Discharge Elimination System
(NPDES) permit proceeding can be just as policy dominated as
an Occupational Safety and Health Administration (OSHA) rulemaking. Although formal procedures may enhance the technical
accuracy of an agency rule or order,3 4 they in no way assure accountability on the many policy questions that can arise in such a
proceeding.
While policy admittedly must play a large role in regulatory decisionmaking, technical information and expertise cannot be ignored. 3 5 Good regulatory decisionmaking requires an appropriate
balance between expertise and the generalist's perspective. That
balance may be upset when expert agency decision makers must defer to political decision makers in the White House.3 6 We were
rightly repelled to learn during the Watergate investigations of a
plan to ensure a satisfactory outcome in an ongoing OSHA rulemaking concerning cotton dust in exchange for a large contribution
from the textile industry to the Committee to Re-elect the President. 37 Even when the exchange is not in coin, behind-the-scenes
political tradeoffs severely undermine the integrity of the rulemaking process. We may not be shocked, but we are disturbed to hear
that President Carter's need for Senator Byrd's support for the
SALT II treaty was a major factor in the decision to adopt a sliding
scale approach for the new source performance standard (NSPS) for
coal-fired steam electric power plants.38
Congress, not the President alone, must provide the content of
the policies that the agencies apply in individual rulemaking or adjudication proceedings. The policy component of regulatory deci34. This itself is a questionable proposition. See Hamilton, Rulemaking on a Record by the
Food and Drug Administration, 50 TEx. L. REV. 1132 (1972) (suggesting reforms designed to
streamline rulemaking without statutory amendment).
35. I agree with Harter that policy plays a large role in most scientific and technical
rulemaking and I am confident that most policy makers know this. See Harter, supra note 32, at
561-63 (discussing agency discretion in rulemaking). Unfortunately, policy makers often face
irresistible pressures to hide this policymaking component of technical decisionmaking behind the veneer of "objective" professional judgment. It is for this reason that I argue in this
Article that policy input into regulatory decisionmaking must be open to public scrutiny.
36. See Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental ProtectionAgency Rulemahing Under Executive Order 12,291, 4 VA. J. NAT. RESOURCES L. 1,
14 (1984)(arguing that OMB intervention can result in increased friction between agencies
without improving quality of agency decisions); Rosenberg, supra note 4, at 1202 (questioning
whether ex parte presidential involvement in agency proceedings creates unfairness to some
participants); Strauss & Sunstein, supra note 3, at 191 (proposing that OMB officials may not
have necessary technical expertise to engage in supervisory role).
37. See N. ASHFORD, CRISIS IN THE WORKPLACE 543 (1976).
38. See EPA Will Relax Pollution Rules For Coal Power, Wash. Post, May 5, 1979, at Al, col.
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PRESIDENTIAL CONTROL OF DECISIONMAKING
sionmaking is not the sort of overarching meta-policy that guides
foreign policy and important budget decisions. It is, rather, a
micro-policy that guides a decision maker in deciding which way to
lean when the information and arguments on both sides of a regulatory issue appear about equally balanced. This kind of policy judgment is not likely to attain a very high position on the President's
policy agenda even in an administration in which government regulation has a high political profile. Regulatory decision makers need
the kind of policy guidance that Congress gives in individual statutes. In those not infrequent instances in which Congress has given
vague policy guidance, a limited interpretational role for the President or his staff may be appropriate. But even here, it it not likely
that the President or his aides in OMB will be more adept at divining congressional intent than the agency to which Congress has del39
egated decisionmaking power.
The President is rarely involved in the actual oversight process,
and even close presidential aides seldom deal with regulatory issues. 40 To the extent that the President delegates his oversight
function to personnel in agencies far removed from the Oval Office,
accountability is attenuated, not enhanced. It is not readily apparent why, for example, an unelected appointee in OMB is any more
accountable to the electorate than the Administrator of the Environmental Protection Agency, whose appointment has the Senate's advice and consent.
Finally, secret interactions between the agencies and the White
House or OMB staff in no way increase overall governmental accountability, because the electorate cannot distinguish those polides attributable to the agencies from those attributable to the
President and his aides. Moreover, the President remains unaccountable for bad decisions that he or his staff may have influenced
if the extent of that influence is not a matter of public record. The
President can brush off the controversial results of his own secretly
communicated policies, after-the-fact, as the regrettable outputs of
41
an unaccountable bureaucracy.
39. Courts often say that they defer to an agency's contemporaneous or longstanding
interpretation of statutory provisions. See 2 K. DAvis, supra note 14, § 7:14 (noting that courts
will give authoritative weight to interpretive rules antedating statutory reenactment).
40. See Bruff, On the ConstitutionalStatus of the Administrative Agencies, 36 AM. U.L. REv. 491,
509-10 (1987) (likening president's generalized oversight responsibility over federal agencies
to congressional oversight of some federal agencies).
41. President Reagan attempted to explain the implementation of his rather clearly expressed budget policies as a bureaucratic blunder when he refused to take responsibility for
the fact that the Department of Agriculture determined that catsup was a vegetable for purposes of the Department's school lunch program. See Wash. Post, Sept. 15, 1981, at AI0, col.
2 (discussing controversy regarding school lunch program).
452
3.
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Reducing bureaucraticrigidity
The notorious bureaucratic tendency to "go by the book" can be
arbitrary and inefficient. 42 Proponents of presidential control believe that the President can loosen regulatory rigidity because he
and his aides are closer to the real-world problems that regulatees
face. 43 The President can also react more quickly to changing governmental needs, thereby increasing flexibility and efficiency. 44
Flexibility, however, can reduce the value of articulated rules by increasing uncertainty as to the law's application. The demand for
bend-in-the-joints often arises in crisis situations, many of which are
generated artificially to capture the attention of the politically accountable branches.
Presidential intervention is unlikely to provide a comprehensive
solution to the bureaucratic rigidity problem. At best, the President
and his staff can intervene selectively in cases of particularly egregious rigidity, just as Congressmen service constituents in such instances. This limited function requires neither presidential control
of agency decisionmaking nor ex parte attempts to influence agencies in pending proceedings. Moreover, this rationale is probably
more applicable to adjudications than rulemakings. While thoughtful attention to flexibility at the regulation writing stage can reduce
later rigidity, the "going by the book" problem usually results from
the application of rules in particular adjudicatory contexts.
4.
Writing "better" rules
Presidential control advocates argue that agencies have promulgated rules that are unjustifiable and unworkable because the rules
do not reflect a balance between narrow agency goals and broader
public goals. 45 The President's broader perspective 4 6 can therefore
place some realistic constraints on agencies' tendency to enact bad
rules. There is little reason, however, to believe that interjecting
42. See E. BARDACH & R. KAGAN, GOING BY THE BOOK: THE PROBLEM OF REGULATORY
UNREASONABLENESS 58-92 (1982) (describing diverse, changeable, nonuniform problems of
agencies that become unmanageable with uniform standards and regulations).
43. See Strauss & Sunstein, supra note 3, at 190 (arguing that President's vantage point is
effective for purpose of maintaining national consensus).
44. See Cutler &Johnson, supra note 16, at 1410-11 (arguing that President should be
given much more extensive power to intervene in regulatory process).
45. See Bruff,supra note 12, at 455 (arguing that decisionmaking ultimately involves political choices among competing economic and social goals); Cutler &Johnson, supra note 16, at
1405-06 (arguing that pursuit of single goal only is outdated); DeMuth & Ginsburg, supra note
1, at 1080-82 (observing that favoring organized interests over general public is symptomatic
of regulation).
46. See Cutler &Johnson, supra note 16, at 1405-06 (arguing only politically accountable
officials should be ultimate decision makers).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
ad hoc, overtly political considerations will result in sounder rules,
' 47
even if there were some agreed-upon measure of "soundness. "
The President and his staff will usually lack expertise to secondguess agencies on technical issues, 48 and they are in no better
position to know what is legally justifiable 49 than the agency. Moreover, if a broader generalist's perspective can be useful for informal
rulemaking, it should likewise be helpful in formal adjudication.
There is no reason to believe that decisionmaking about pesticides
under the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) 50 does not suffer from the same myopia that allegedly af-1
5
flicts rulemaking under the Toxic Substances Control Act (TSCA),
and there is no less reason to believe that presidential intervention
will be helpful in curing that disease.
5.
Providing "regulatory relief"
Many of the more forceful proponents of presidential intervention believe that society is currently overregulated. 5 2 This view of
regulation blames Congress, which faces strong incentives to enact
statutes that result in unnecessary constraints on freedom, for this
sad state of affairs. 53 Because only the President can administer the
statutes in a way that minimizes undue governmental restraints on
regulatees, he must "ride herd" on the agencies to restrain their
natural tendencies to overregulate.
Yet Congress, not the White House, is the appropriate forum for
debating whether regulated entities need relief. Having lost in that
forum, regulatory relief advocates should not be allowed to amend
existing statutes through the back door via secret interventions of a
sympathetic President. As previously stated, the regulatory relief rationale's force does not depend upon whether an agency acts
through formal adjudication or informal rulemaking. Adjudications
can be just as burdensome on regulated entities as rulemakings, yet
few argue for presidential intervention into adjudications on that
54
basis.
47. Morrison, supra note 24, at 1069-70 (discussing judicial skepticism towards agency
determinations).
48. Id. at 1066-67; Olson, supra note 36, at 14.
49. Bruff,supra note 12, at 455.
50. 7 U.S.C. § 136-136y (1982).
51. 15 U.S.C. §§ 2601-2629 (1982).
52. See Gray, supra note 16, at 863; G. EAnDs & M. Fix, supra note 15, at 104-05.
53. See Bruff, supra note 12, at 456 (noting that congressional oversight over agencies
accounts for some deficiencies in agencies' performance).
54. See infra note 77 and accompanying text (discussing presidential intervention into
adjudication).
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C. Arguments Against PresidentialControl
At the same time that critics were complaining about regulatory
imbalance and the need for increased presidential control, a new
cast of critics, largely associated with groups that benefit from regulation, began to voice concern about the Reagan administration's
early efforts at regulatory relief. Their chief complaint was that the
regulatory agencies were not administering their statutes in accordance with congressional will. These critics believe that less presidential control is necessary to cure what ails the regulatory process.
1.
Unfaithful execution of the laws
The President has a constitutional duty to take care that the laws
are faithfully executed. 55 The President, however, may not always
be enthusiastic about his constitutional duty, and he may use
whatever influence he has over the regulatory process to steer an
agency away from its congressional mandate. Because most regulatory statutes have multiple goals 56 and are not written with crystal
clarity, the agency often has considerable interpretational leeway
before it steps over the statutory line, and the President may attempt to push the agency as close to that line as possible. The President or his staff may encourage or command the agency to consider
factors that the statute precludes or to use different policies to fill
the gaps left by uncertainties in the data,5 7 thereby "deflect[ing]
[the] agency from its statutory grounds for decision."5 8 A certain
degree of institutional tension between the President and the relevant congressional committees is, therefore, to be expected.
Most documented presidential intervention appears to be biased
against regulation. There are literally hundreds of cases of the
OMB intervening in agency rulemakings to urge less stringent regulations, 5 9 and almost no documented cases of OMB urging the
agencies to regulate more stringently. 60 The widespread perception
55. U.S. CONST. art. II, § 3, cl.3. See Gressman, Take Care, Mr. President, 64 N.C.L. REv.
381, 384 (1986) (arguing that "executing" means precisely what law says).
56. See Morrison, supra note 24, at 1060 (noting that rulemaking requires consideration
of many factors).
57. See Environmental Defense Fund, Inc. v. Thomas, 627 F. Supp. 566, 568 (D.D.C.
1986); Morrison, supra note 24, at 1062-63 (criticizing presidential advocacy of cost-benefit
analysis whether or not mandated by Congress); Rosenberg, supra note 4, at 1213 (indicating
that agencies formulate many essential principles of law because Congress has been forced to
delegate legislative tasks).
58. Bruff,supra note 12, at 466.
59. See Morrison, supra note 24, at 1068-70 (discussing expansion of OMB intervention
in agency decisionmaking pursuant to Executive Order 12,498).
60. See, e.g., J. LASH, A SEAsoN OF SpoiLs 57, 72 (1984); Olson, supra note 36, at 64-73;
McGarity, The Role of Regulatory Analysis in Regulatory Dedsionmaking,reprinted in Administrative
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
455
that presidential intervention is a one-way street suggests that the
President and his staff do not care whether the laws are faithfully
executed.
It could be otherwise. An activist President with control over the
rulemaking process could use his power to press agencies beyond
statutory limits that he was unable to persuade Congress to remove.
Such a President would be guilty of unfaithful execution of the laws.
The problem is not quite the same, however, because there is usually a readily available judicial remedy for ultra vires agency action
that aggrieves regulatees. 6' Although there are exceptions, 62 the judiciary is much less inclined to intervene in the administrative process at the behest of aggrieved beneficiaries of regulation.6 3 Hence,
over time and across presidential administrations, presidential intervention probably benefits regulatees more than the regulations' intended beneficiaries.
The related problem of staff abuse occurs when members of the
President's staff attempt to implement their own policy agendas in
the name of the President.64 As the recent Iran-Contra scandal
clearly demonstrates, the bureaucrats in the White House and OMB
might not exercise the wisdom and restraint of the President him-
self.E6 5 For example, a well-publicized instance of staff abuse occurred during the Carter administration when the Chairman of the
Council of Economic Advisors (CEA) ordered the Assistant Secretary for Occupational Safety and Health to change a standard for
protecting workers from exposure to cotton dust. 66 When the Secretary of Labor demanded to meet with the President on the matter,
67
the President overruled the CEA Chairman.
Conference of the United States, Recommendations and Report (1985). Harter suggests that
presidential interventions can advocate more stringent as well as less stringent regulation, but
he offers no examples. Harter, supra note 32, at 567-68.
61. See 2 K. DAvis, supra note 14, §§ 23.1-23.5 (outlining systems ofjudicial remedies);
W. GELLHORN, C. BYSE & P. STRAuss, ADMINISTRATIVE LAW 916 (1979) (noting that judicial
review can curb agency when agency goes beyond delegated authority).
62. See Garland, supra note 15, at 562 (recognizing failure to act as subverting intended
protection); 2 K. DAvis, supra note 14, § 6:28 (discussing interested person's statutory right
under § 553 of Administrative Procedure Act to petition agency).
63. See Heckler v. Chaney, 470 U.S. 821, 837 (1985) (refusing to require judicial review
of agency non-action).
64. See Houck, supranote 10, at 546-47; Olson, supra note 36, at 49-51 (noting how staff's
perceptions of presidential policies go beyond Exec. Order No. 12,29 1); Strauss, supra note 7,
at 656; Strauss & Sunstein, supra note 3, at 190 (recognizing sometimes differing objectives of
President and OMB).
65. See H. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER
DEFINITION OF STANDARDS 153 (1962).
66. See White House Orders Cutback in ProgramAgainst Brown Lung Disease, Wash. Post, June
7, 1978, at 1, col. 1.
67. See G. EADS & M. Fix, supra note 15, at 58-59 (describing how President Carter was
persuaded by Secretary of Labor Ray Marshall to permit rule limiting level of worker expo-
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THE AMERICAN UNIVERSrrY LAW REVIEW
[Vol. 36:443
There is a difference between an agency that identifies inconsistencies and brings them to the attention of the relevant agencies for
resolution, and an agency that is empowered to resolve inconsistencies by elevating one agency's goals over another's. An agency that
has a mission of advancing its own extra-statutory policy preferences over another agency's statutory goals is yet another matter
entirely. 68 Many critics of the current OMB review process believe
69
that it most nearly fits the third model.
It should not be assumed lightly, however, that the President will
consciously violate his constitutional duties. As the District of Columbia Circuit observed in Sierra Club v. Costle,70 the burden in individual judicial cases should be on those who allege that the
President or his staff is interjecting improper considerations into the
regulatory decisionmaking process. 7 1 Still, sufficient evidence of
improper presidential intervention exists to support a general legislative conclusion that it occurs frequently enough to warrant congressional attention.
2.
Lack of accountability
Although accountability to the electorate is often cited in support
of presidential control of administrative decisionmaking, 72 presidential intervention can itself reduce governmental accountability.
Insisting that agencies give reasons for their decisions and requiring
them to expose the data underlying their decisions to critical public
scrutiny may not result in the most efficient decisionmaking process,
but it does hold them to public account. When the President or his
staff can secretly intervene into any stage of the regulatory process,
sure to cotton dust to go unchanged); S. TOLCHIN & M. TOLCHIN, DISMANTLING OF AMERICA
50-51 (1983) (noting high political price President Carter paid for interceding in decision to
limit permissible levels of cotton dust in textile mills).
68. Professors Strauss & Sunstein note that: "The distinction between activating a political process for agenda and priority setting, and taking over an agency's ultimate authority is a
subtle one, yet one wants assurance that it will be observed." Strauss & Sunstein, supra note 3,
at 202. For assurance, Strauss and Sunstein rely principly upon the understandings of OMB
and agency heads as to their congressionally assigned roles. See infra note 93 (discussing
OMB's secret involvement in agency rulemaking). I, for one, am not sanguine about OMB's
"understanding" of its appropriate role in agency decisionmaking. See Houck, supra note 10,
at 540-44 (describing how OMB has extended its authority in agency decisionmaking beyond
its traditional role).
69. J. LAsH, supra note 60, at 72; Morrison, supra note 24, at 1067; Olson, supra note 36,
at 53.
70. 657 F.2d. 298 (D.C. Cir. 1981).
71. Id. at 407.
72. See, e.g., Harter, supra note 32, at 568 (advocating imputation to President of all regulatory decisions); Cutler &Johnson, supra note 16, at 1410-I1 (noting that President is most
politically accountable governmental officer because he is nationally elected); Bruff,supra note
40, at 506-07 (discussing statutory authority and political accountability).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
457
accountability suffers. 73 An agency can usually manipulate its analysis and explanations of the existing data to fit a presidentially
required outcome. The President is not, however, held accountable
for the decision; nor is his reasoning process made available to the
regulatees and the beneficiaries of regulation. 74 They have only the
agency's manipulated rationale, which, under current standards, can
ordinarily survive judicial scrutiny. 75 The public cannot judge the
President's reasons or motivations in deciding how to vote in the
next election because the public is never even aware of the intervention, much less of its content. In reality, most regulatory agencies
are considerably more accountable to the public than is the President under a regime that allows ex parte presidential inter76
vention.
3. Due process and public participationconcerns
Intervention by political actors into ongoing adjudicatory proceedings raises obvious due process concerns. Although the due
process clause itself does not always require an impartial decision
maker in cases of adjudication, 77 allowing political (as opposed to
73. See Morrison, supra note 24, at 1067 (noting OMB control of rulemaking process is
detrimental to accountability).
74. Houck, supra note 10, at 552-53.
75. This is the answer to Professor Diver's suggestion that substantive judicial review is
the only effective antidote to improper presidential intervention into agency decisionmaking.
Diver, PresidentialPowers, AM. U.L. REv. 519, 527-28 (1987). See also infra note 89 and accompanying text (discussing judicial review of ex parte presidential intervention into agency
decisionmaking).
76. See generally Olson, supra note 36, at 14 (discussing instances of exercise of review
power kept secret from electorate).
77. Marcello v. Bonds, 349 U.S. 302, 331 (1955). Harter suggests that
"a major part of the anxiety over political involvement [in adjudication] was the fear
that judge-like decisions would be made on political grounds .... But that worry has
been met as a general matter by specifying procedures of trial type hearings through
the Administrative Procedure Act. The APA defines the authority of the agency, and
hence of the President, with respect to the range of discretion versus the resulting
record."
Harter, supra note 32, at 560. It is not clear what Harter means by this statement. If he means
that the APA prohibits presidential intervention into agency adjudication, then the statement
is uncontroversial, but it blunts the constitutional concern with separation of functions only
because a court is likely to find that presidential intervention into adjudication violates the
APA without reaching constitutional questions. The statement does not support Harter's
conclusion that the need to shield adjudication from presidential interference is not "particularly relevant in the '80s." Id. at 559. On the other hand, Harter appears to be stating the
much more controversial proposition that presidential intervention into adjudication is acceptable, because trial-type procedures and the adjudicatory record ensure against the intrusion of "political" considerations into the agency's decision. This proposition is
demonstrably false. An agency bent on reaching a particular result in an adjudication will
almost always have sufficient leeway in a trial-type record to survive substantial evidence review in the courts. If trial-type procedures and a trial-type record were adequate to protect
the integrity of the decisionmaking process, Congress would not have amended APA § 557 in
1966 to limit ex parte contacts; nor would covert overtures by counsel for litigants to judges
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policy) considerations to determine the outcome of decisions about
individual rights or entitlements usually conflicts with our generally
accepted ideas of justice and fair play.78 Ex parte communications
between one of the parties to an adjudication and the decision
maker also deprives the other side of an opportunity to rebut ex
parte arguments and evidence. Absent any constraints on presidential intervention, it is possible for affected parties to channel vital
information and arguments to the agency through the White House
or OMB and for the agency to rely upon that information without
first exposing it to the critical light of public comment. 7 9 Finally,
presidential intervention that actually controls the outcome of a formal administrative proceeding may violate the principle that the one
who decides a case must hear it.80 These concerns are almost universally shared, and documented instances of presidential intervention into formal adjudications are very rare.
Although there are sound reasons for distinguishing between
rulemaking and adjudication for purposes of applying procedural
protections, such as cross examination, that attend trial-type hearings, the considerations weighing against presidential intervention
are not so different in the rulemaking context. When, for example,
the EPA is deciding whether to promulgate a rule limiting human
exposure to a very unpopular chemical substance, there may be an
equally disturbing tendency for the President to grandstand and
ride roughshod over the rights of those who manufacture or use the
chemical. Likewise, the ex parte submission of data and analysis in
an OSHA informal rulemaking on worker health can deprive participants of an opportunity to rebut the data and arguments submitted.
In an age of experimentation with rulemaking-type procedures in
a wide variety of decisionmaking contexts, it is not obvious why the
formal designation of the proceeding should determine the quesin ordinary adjudication cast doubt on the integrity of the decisionmaking process. For the
same reason, it is no answer to concerns about ex parte presidential intervention in rulemaking to suggest that the interjection of irrelevant concerns will be cured by judicial review
under the "arbitrary and capricious" test. Id. at 567.
78. See Bruff, supra note 12, at 487 (advocating immunity from presidential intervention
for certain agency functions to satisfy due process); Verkuil, supra note 7, at 960 (discussing
situations where presidential intervention raises due process concerns).
79. See generally Verkuil, supra note 7, at 950-51 (warning that powerful lobbies will use
political advisors to achieve clout); Strauss, supra note 7, at 656 (indicating Congress might
have required disclosure of presidential communications to agencies in order to reveal private
influences).
80. Morgan v. United States, 298 U.S. 468, 481 (1936). Professor Byse rejects this argument because he believes that the President would only be ordering the agency to conform to
the law, and surely this is not unlawful. Byse, supra note 33, at 163. But the danger of ex
parte presidential intervention is that the President will attempt to require the agency to consider factors contrary to law.
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
459
tion of the fairness of presidential intervention. The familiar observation that ex parte lobbying is fair because rulemaking is quasilegislative lacks persuasive power in the world of modern rulemaking. Policymaking in adjudication is quasi-legislative, if one adopts
a functional approach to the question, instead of reasoning circularly that a decision is quasi-legislative if it is made with procedures
resembling those of a legislature. Yet, most would probably frown
on ex parte presidential intrusion into adjudications in which agencies articulate prospective rules.
The advent of informal rulemaking reflects a social judgment that
affected interests ought to have an opportunity to participate in governmental decisionmaking in a direct way. Informal rulemaking
represents a civilized departure from the kind of autocratic policymaking that characterizes too many governments in today's
world.8 1 But ex parte presidential influence over informal rulemaking is entirely contrary to the pluralistic values that underlie that
procedure,8 2 and it represents a step back toward autocracy.
The President is the most important single domestic policy
maker.8 3 Because he has the power to remove most agency heads,
his opinion on regulatory questions is a matter of the utmost interest to subordinate decision makers. 8 4 Obviously, his input can be
81. K. DAVIS, ADMINISTRATIVE LAw TREATISE § 6:40, at 152-54 (Supp. 1982).
82. See Bruff, supra note 12, at 469 (arguing that ex parte communications undermine
basic societal values such as pluralism); Olson, supra note 36, at 31 (arguing that unrecorded
communications reduce value of public participation).
83. I agree with Harter that the President does not stand in a position similar to anyone
on the sidewalk. Harter, supra note 32, at 566. He is, and ought to be, a very influential
participant in administrative decisionmaking, but Congress can provide that he not be the
actual decision maker. And when Congress so provides, ex parte presidential communications on matters directly related to pending proceedings pose a very real threat of presidential
usurpation of an agency's decisionmaking authority. I would disagree somewhat, however,
with Harter's assertion that the Executive Office of the President is not in the position of
anyone on the sidewalk, if he means by that to include the staff of OMB. The inhabitants of
that office are unelected and very few hold their position with the advice and consent of the
Senate. OMB's views may be more influential with some bureaucrats than those of members
of the regulated community or the general public, but they should be afforded no special
procedural advantages because they work across the street from the President. Accepting
fully Harter's contention that politics should play a large role in informal rulemaking would
lead to the conclusion that the Chairman of the Committee to Re-elect the President, whose
ear is probably more closely tuned to political frequencies than the staff of OMB, should
likewise be afforded special access to the regulatory decisionmaking process.
84. Verkuil uses the proposition that the President is different from other rulemaking
participants to support the conclusions that presidential concerns can be kept secret and that
they need not be confined to the deadlines set in the rulemaking process. Verkuil, supra note
7, at 979. I cite the uniqueness of the President for precisely the opposite conclusions. The
fact that the President is so powerful argues in favor of exposing the exercise of that power to
full public scrutiny. How else can the President be held accountable for his use of the power
that the public has given him? Moreover, confining the President to the same deadlines as the
everyday citizen sends a powerful symbolic message to the citizenry that this is a society that
respects the rule of law and does not accord undue privilege to rank alone.
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outcome determinative, even if it does not come in the form of a
command. When regulatory decisions are based upon the hidden
policy input of the President or his staff, the proceeding has been
deprived of its participatory character. This, in turn, deprives infor85
mal rulemaking of much of its legitimacy.
Weighing against the foregoing is the doctrine of executive privilege,8 6 which rests on the proposition that the President ought to be
able to engage in candid dialogue with his subordinates. A corollary
87
is that sometimes better decisions are made behind closed doors.
While I agree that the President should be privileged to converse
privately with subordinate decisionmaking officials (including those
in independent agencies) on broad questions of agency policy and
priorities without inviting the Washington Post, ex parte presidential
intervention into ongoing public proceedings implicates other values. The policies underlying executive privilege would not justify a
presidential claim to ex parte intervention in an FCC licensing proceeding or on NLRB unfair labor practice adjudication.8 8 Why
would those policies prevail over the values of open, accountable,
and participatory decisionmaking in a rulemaking on limiting
human exposure to a toxic substance?
4.
Inconsistency with judicial review
Judicial review is an important check on arbitrary administrative
decisionmaking. Its perceived virtues are in fact so large that it has
been incorporated from agency adjudications, where it fits rather
comfortably, into informal action, where the fit is not so secure. In
either context, one proposition seems reasonably clear: if judicial
review is to be effective, the court must review the reasons and information that the agency actually relied upon in making its deci85. See 1 K. DAvis, supra note 14, § 6:24, at 153 (arguing that accountability is impaired
when decisions are made as a result of secret communications from White House); Rosenberg, supra note 4, at 1200 (indicating Exec. Order No. 12,291 fails to protect integrity of
rulemaking process); Bruff, supra note 12, at 504 (contending that secret executive input may
result in rational, but illegitimate regulation). Strauss and Sunstein suggest that "reasoned
decisionmaking" includes the principle that
to the extent that issues of value are to be resolved through an exercise of discretion
by executive officials within the confines of a statute, it is important to ensure that the
relevant considerations-and the actual basis for the decision-are explicitly identified and subject to public scrutiny and review.
Strauss & Sunstein, supra note 3, at 184. This principle would seem equally applicable to the
exercise of administrative discretion by the President or White House staff.
86. See generally Verkuil, supra note 7, at 958-60 (stressing necessity of protecting presidential policy conversations).
87. See Strauss, supra note 7, at 595 ("Much as our society values openness, it remains
true that candor and the flexibility necessary for collaboration or compromise are more likely
to flourish in the shade.").
88. See Verkuil, supra note 7, at 960.
19871
PRESIDENTIAL CONTROL OF DECISIONMAKING
461
sion, instead of an after-the-fact fictitious account of the agency's
decisionmaking process. Otherwise judicial review is a game that
wastes everybody's time and resources.
When the President or his staff intervenes ex parte into the
agency decisionmaking process, the information and policy considerations that actually motivated the agency compose one (perhaps
unwritten) record. The record that the agency fabricates for appeal
is a second, but entirely irrelevant, record.8 9 Judicial review based
on the latter record is appropriate only if the issue on appeal is
whether the agency's decision could have been supported by facts in
the record and relevant policy considerations, and not whether the
decision in fact was so supported. This is not, however, the standard for judicial review for formal or informal agency action that
Congress has adopted in the Administrative Procedure Act. 90
The Supreme Court in Motor Vehicle Manufacturers Association v.
State Farm Mutual Automobile Insurance Co. ,91 defined the appropriate
test for judicial review of potentially arbitrary and capricious informal rulemaking as whether the agency has relied on factors that
Congress had not intended the agency to consider, entirely ignored
a crucial aspect of the problem, offered an explanation for its decision that contradicted the evidence before the agency, or that was so
incredible that it could not be attributed to differing views or the
product of agency expertise. 92 This test clearly refers to the facts
and policy considerations that, in fact, motivated the agency. How
can the reviewing court, for example, know whether the agency relied on factors that Congress meant for it not to consider if the factors that the agency in fact relied on are hidden in secret
communications with the President or his staff? 93 The President is
89. See Bruff, supra note 12, at 487 (emphasizing difficulty of reviewing informal contacts
from record); Bruff, supra note 40, at 517 (discussing impediments to judicial review of presidential oversight); Olson, supra note 48, at 32 (observing that purging record of ex parte
contacts leaves fictitious record for judicial review).
90. 5 U.S.C. §§ 551-559, 701-706 (1982).
91. 463 U.S. 29 (1983).
92. Id at 43.
93. Strauss and Sunstein apparently agree that the secret involvement of OMB officials
in agency rulemaking may further attenuate the link between the final regulation and the
rulemaking record. Strauss & Sunstein, supra note 3, at 188 (discussing OMB's use of private
communications to secretly displace agency authority), but they argue that the solution to this
problem lies in the proper appreciation of those dangers by the relevant officials and in
OMB's recognition that the agency is the primary decision maker. Id. at 191. I am not persuaded that either consideration solves the problem. There is no reason to believe that OMB
officials, who are not lawyers and who little understand the function ofjudicial review, have a
proper appreciation for the dangers of divorcing the agency's decision from the record upon
which it allegedly rests. Given OMB's past practices, Houck, supra note 10, at 540-44, there is
even less reason to believe that its staff will recognize that the agency is the primary decision
maker.
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:443
unique and powerful, and he is therefore not likely to be ignored.
The numerous accounts of OMB-agency interactions are full of instances in which OMB attempted to interject into the agency's deci94
sion considerations that Congress arguably deemed irrelevant.
Any presumption that an agency would never base a decision on
presidential importuning that the agency deemed to be irrelevant
under the statute runs counter to human nature and experience. To
the extent that the contents of such contacts are not part of the record on review, judicial review is an elaborate and expensive charade.
D.
Conclusion
In delegating decisionmaking authority and policymaking power
to regulatory agencies that are not subject to the immediate control
of the President and his aides, Congress has determined that narrow
political concerns should not play a large role in regulatory decisionmaking. The policy that guides administrative decisions should
emanate from a statute, not from the President's view of the political
needs of the moment. While the President and his staff have a legitimate and necessary role to play in establishing broad governmental
policy (within the usually wide limits established by statute), presidential participation in individual proceedings should be open to
public scrutiny.9 5 Only in that way can the public evaluate the President's performance in the regulatory context.
The President should not be out of touch with regulatory issues.
To the contrary, he should take an intense interest in regulatory issues and communicate his concerns and policy preferences to agencies in cabinet meetings and other informal fora and through
written submissions in individual decisionmaking proceedings. The
President should periodically review regulatory decisionmaking in
the departments and the independent agencies and call regulatory
decision makers into the White House for broad discussions of regulatory issues and performance evaluations that can focus on past
proceedings. The President may, of course, decide that the overall
performance of a particular executive branch official is such that it
warrants the official's removal from the job. He should not, however, be allowed to dictate the outcomes of individual rulemakings
and adjudications; nor should he be allowed to intervene ex parte
into such proceedings.
94. See generally Houck, supra note 10, at 540-44 (describing OMB's expanded role in
administrative decisionmaking process).
95. See Bruff, supra note 40, at 516 (stating Congress could require disclosure of OMBagency communications); Morrison, supra note 24, at 1072 (noting necessity of accurate record for review of any rule).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
463
Finally, it is, in my view, entirely inappropriate for the President
to elevate a single office within the executive branch to the status of
"superregulator." The President alone has the power to control the
agencies through the exercise of his power of persuasion and ultimately through his removal authority. When that power is exercised, it should be by the President himself, and not a subordinate
institutional entity.
II.
THE POWER OF CONGRESS TO STRUCTURE PRESIDENTIAL
CONTROL OVER ADMINISTRATIVE DECISIONMAKING
This section of the Article will first analyze the sources of and limitations upon congressional power to structure presidential intervention into administrative decisionmaking. I will then apply that
analysis to the possible limitations discussed earlier. The primary
purpose for this inquiry into institutional power under the Constitution is to rebut recent suggestions that Congress lacks the power to
96
structure presidential intervention as I suggested earlier.
Whether Congress elects to achieve that result through its constitutional spending power or through the necessary and proper clause
is a matter of legislative choice, but the following discussion will
identify some of the advantages and disadvantages of each route.
Initially, I will attempt to establish three relatively uncontroversial
propositions. Proposition 1: Congress has the power to establish domestic policy, and the President may not contradict or stray from
congressionally established policies in carrying out his duty to take
care that the laws be faithfully executed. Proposition2: Congress can
constitutionally lodge decisionmaking power in subordinate institutional entities headed by Officers of the United States who are not
agents of the President. Proposition 3: Congress may act under its
spending power to turn out the lights. As a matter of raw institutional power, these three propositions establish Congress as the
dominant institution in setting and carrying out domestic policy,
notwithstanding any vague notions of checks and balances or balance of power to the contrary. The discussion will then shift to
more difficult questions about congressional power under the necessary and proper clause to structure presidential intervention
through less drastic measures. Here, notions of checks and balances
inherent in the separation of powers doctrine will play a larger role,
96. See Strauss, supra note 7, at 640-66 (using a "checks and balances" approach to limit
Congress' authority to create governmental structure). But see Verkuil, supra note 7, at 963-70
(concluding Congress is not powerless to restrain presidential contacts with administrative
agencies).
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THE AMERICAN UNIVERSITY LAW REVIEW
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but Congress still has a large reservoir of power with which it can
structure presidential intervention to ensure that the President does
not shirk his duty to take care that the laws are faithfully executed.
A.
CongressionalPower to Set National Domestic Policy
The first proposition is unexceptional: Congress may establish
national domestic policy in duly enacted statutes, and the President
may not unilaterally change that policy in executing those statutes.
All legislative powers are vested in Congress, 9 7 and Congress has
the power to enact all laws that are necessary and proper to execute
its legislative powers. 9 8 The President does not have any legislative
power except insofar as Congress delegates such power to him. 99
The President, however, does have the duty to "take care that the
laws be faithfully executed." 1 0 0 He is therefore not at liberty to ignore or to countermand duly enacted laws. To the extent that Congress leaves room for interpretation and policymaking when it
delegates legislative power, the President and the subordinate decisionmaking entities do have a practical lawmaking power. The President and the agencies, however, may not ignore factors that
statutes require them to consider or rely upon considerations that
statutes forbid 10 1 Virtually all of the constitutional commentators
02
agree with this modest proposition.
97. U.S. CONST. art. I, § 1.
98.
99.
Id. § 8, cl.18.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-86 (1952).
100. U.S. CONsT. art. II, § 3.
101. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (declaring agency order rescinding crash protection requirements arbitrary and capricious because agency exceeded statutory mandate); Kendall v. United States ex rel.
Stokes, 37
U.S. (12 Pet.) 524, 613 (1838) (ruling Postmaster General or President could not ignore act
of Congress directing specific ministerial action); National Fed'n of Fed. Employees Local
1622 v. Brown, 645 F.2d 1017, 1025 (D.C. Cir.) (holding imposition of cap on pay raise invalid because of failure to rely on explicit standards Congress established to control executive
discretion), cert. denied, 454 U.S. 820 (1981); see also Strauss, supra note 7, at 607 (reading
Kendall as holding only that President and other executive officials must act within law). For
example, when Congress mandates a feasibility analysis approach to setting occupational
health standards, neither the President nor OSHA can apply an inconsistent cost-benefit approach. American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981).
For the view that Congress should articulate definite standards that agencies must consider
and to what extent, see Rosenberg, Beyond the Limits of Executive Power: Presidential Control of
Agency Rulemaking Under Executive Order 12,291, 80 MiCH. L. REv. 193, 216 (1981) (commenting
that indefinite standards provoke presidential policymaking). Of course, difficult interpretational questions can arise over whether Congress has, in fact, limited the analytical methodologies that an agency may use. See Shane, supra note 4, at 1237 (calling complex question
whether enabling statute permits certain administrative approach).
102. See, e.g., Bruff, supra note 12, at 475 (commenting that presidential action is justified
so long as it does not exceed statutory restrictions); Shane, supra note 4, at 1251, 1255 (stating
that presidential goals are conspicuously limited by acts of Congress).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
B.
465
Delegation of DecisionmakingPower to Inferior Officers
The second proposition is only slightly more controversial than
the first: Congress may delegate decisionmaking power to inferior
officers of the United States who are not agents of the President, but
may be subject to presidential removal. 10 3 Under the necessary and
proper clause, Congress may create subordinate governmental institutions with the institutional competence to deal with particular
governmental problems, and it may provide that the President may
not substitute his judgment (or the judgment of a member of his
staff) for that of the official to whom Congress has delegated decisionmaking power. 10 4 Unlike the question of the President's power
to remove an official,10 5 this proposition does not turn on whether
the agency is independent or under the control of the executive
branch. As a practical matter, an official is not likely to countermand the President's instructions if he knows that he may be out of
a job the next day.' 0 6 There is, nevertheless, an important formal
distinction between the official who, as a mere agent for the President, may have his decisions immediately countermanded by the
President and the official who has the independent power to decide,
07
subject to being fired at the President's whim after-the-fact.'
1.
Textual analysis
To the extent that the constitutional text speaks directly to Proposition 2, there is no inconsistency. The President has the duty to take
care that the laws be faithfully executed.' 0 8 This language admits
the possibility that the laws are to be executed by someone other
103. See, e.g., Harter, supra note 32, at 563 & n.34 (observing generally accepted view that
Congress can designate person in executive branch to implement statute). I will not deal here
with the power of Congress to delegate decisionmaking power to officials whom the President
does not appoint, and who therefore are not "Officers of the United States." I, therefore,
need not discuss in detail any implication of Bowsher v. Synar for my analysis. Bowsher v.
Synar, 106 S. Ct. 3181 (1986). This case does, however, have indirect implications for the
analysis in subpart 2.a.i. of this Part, and I will discuss it in that context.
104. Under the necessary and proper clause, Congress has the power to "make all laws
U.S.
which shall be necessary and properfor canying into execution the foregoing powers ....
CONST. art. I, § 8, cI. 18 (emphasis added). This strongly implies that Congress has the power
to write laws that establish agencies and regulate how the agencies execute the laws.
105. See Humphrey's Ex'r v. United States, 295 U.S. 602, 631-62 (1935) (holding that
whether presidential power to remove an officer should prevail over congressional power to
establish guidelines for removal depends on nature and character of office).
106. See Harter, supra note 32, at 565 (noting that official may face dismissal for neglecting
President's will).
107. See Strauss, supra note 7, at 650 n.332 (recognizing that courts realize and understand
distinction between supervision and substitution); Rosenberg, supra note 101, at 208 (commenting that threat of removal gives President great influence, but decision prompting removal remains unaltered until new appointee reverses offensive action).
108. U.S. CONsT. art. II, § 3.
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than the President and his immediate staff. His duty is to oversee
broadly the execution of the laws by others, namely, the administrative agencies to which Congress may delegate primary decisionmaking authority. 10 9
The article II prescription that the "[e]xecutive power shall be
vested in a President""10 does not imply a presidential power to
make decisions that Congress has delegated to inferior officers of
the United States. The executive power clause "does not describe
the content of the executive power, but rather places the power,
whatever its content, in the hands of a single officer, the President."'IIl Even under a very broad reading of the executive power
clause, Congress still has the power to "define the means and manner of execution. ' ' 1 2 The Supreme Court apparently recognized
this in Humphrey's Executor v. United States "13 when it held that Congress could limit the President's power to remove the head of an
independent agency to reasons other than the President's disagreement with a particular decision or policymaking exercise.' ' 4 Creating an independent agency is one constitutionally valid limitation
that Congress may place on the means and manner of the execution
of the laws; it may also employ less drastic limitations, short of
usurping the President's appointment power." 15
2.
Separationof powers analysis
The pure Montesquian statement of the separation of powers
doctrine is that "no one of the departments may either (1) give up
or farm out any of its own power or (2) take over or interfere with
the power of any other department."' "1 6 Two centuries of practical
109. See Ledewitz, The Uncertain Powers of the President to Execute the Laws, 46 TENN. L. REv.
757, 797 (1979) (suggesting that President does not actually execute laws).
110. U.S. CONST. art. II, § 1, cl. 1.
111. Ledewitz, supra note 109, at 768; see Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 640-41 (1952) (Jackson,J., concurring) (declaring that executive power clause does
not constitute grant of all constitutionally acceptable executive power).
112. Ledewitz, supra note 109, at 770.
113. 295 U.S. 602 (1935).
114. Id. at 629. Most narrowly construed, the case held only that the President lacked the
power to remove a head of an independent agency for no reason at all, but the Court rejected
the challenge to a statute that rather clearly limited the President's removal power to reasons
other than the agency's good faith interpretation and administration of the laws.
115. See Verkuil, supra note 7, at 957 (noting that Congress could vest final decision on
statute's implementation with administrative head).
116. Cushman, The ConstitutinalStatus of the Independent Regulatory Commissions, 24 CORNELL
L.Q. 13, 16 (1939). The Court in Myers v. United States, 272 U.S. 52 (1926), defined the
separation of powers doctrine as meaning that the Constitution permitted only the necessary
interaction of government branches. Id. at 116. Cushman concludes that the notion of the
independent regulatory agency would seem to violate the pure doctrine of separation of powers "at every vital point." Cushman, supra, at 16.
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
467
experience under the Constitution, however, have produced a decidedly "impure" version of that doctrine, which, though it lacks
precision, works tolerably well in the real world.1 17 Thus, Congress
may delegate rulemaking and adjudicatory power to executive agencies without fear of violating the separation of powers doctrine."l 8
The narrower question of whether Congress can provide that the
subordinate official is the actual decision maker does not raise
strictly separation of powers concerns; rather, it invokes checks and
balances considerations." 19
3.
Checks and balances analysis
A checks and balances analysis does not require strict isolation of
governmental powers, but instead examines carefully the exercise of
institutional power to ensure that the power one branch exercises
does not encroach too greatly upon another's power and prerogatives. 120 Professors Bruff and Strauss have recently suggested that
checks and balances analysis has a large role to play in deciding how
far Congress may go in structuring presidential control over regula2
tory agency decisionmaking.1 '
117. In the words of the Supreme Court:
The men who met in Philadelphia in the summer of 1787 were practical statesmen,
experienced in politics. They viewed the principle of separation of powers as a vital
check against tyranny. But they likewise saw that a hermetic sealing off of the three
branches of government from one another would preclude the establishment of a
nation capable of governing itself effectively.
Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam); see also In re President's Comm'n on
Organized Crime Subpoena of Scarfo, 783 F.2d 370, 375 (3d Cir. 1986) (observing Supreme
Court position that Constitution does not require complete isolation of branches from one
another); Bruff, supra note 12, at 487 (commenting that framers' view of separation of powers
was flexible and permitted change); Cushman, supra note 116, at 53 (eschewing "bogey of the
eighteenth century doctrine of the separation of powers."). In separation of powers analysis,
Professor Strauss would distinguish between actors at the apex of the constitutional regimeCongress, the President and the Supreme Court-and subordinate institutional actors. Fairly
strict notions of separation of powers would apply to the actors at the apex, while relaxed
notions would apply to subordinate agencies. Strauss supra note 7, at 578.
118. SeeJ.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 411 (1928) (permitting
congressional delegation of power to President to increase or decrease duties imposed by
statute after examination of relevant factors); United States v. Grimaud, 220 U.S. 506, 522
(1911) (upholding delegation of authority to Secretary of Agriculture to make rules for forest
reservations established by statute).
119. Strauss, supra note 7, at 580. Professor Strauss would focus on checks and balances,
rather than separation of powers notions, when the issue is the allocation of power to
subordinate decisionmaking entities. I share this view and therefore find that separation of
powers analysis sheds little light on the question of whether Congress may delegate decisionmaking power to subordinate institutional entities that are not agents of the President.
120. See Strauss, supra note 7, at 578 (defining checks and balances in terms of working
relationship between Congress, President, and Supreme Court so as to maintain both independence and interdependence).
121. See Bruff, supra note 12, at 487 (expressing concern that presidential intervention in
certain agency functions could harm court's ability to check agency decisions); Strauss, supra
note 7, at 639 (stating that notion of checks and balances is crucial to understanding agencies'
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Limiting his analysis to decisionmaking that goes on below the
apex of government, Professor Strauss maintains that longstanding
conventional understanding of the Constitution conveys the fundamental concept that we were to have a unitary, politically responsible government head, with adequate independent authority to
withstand Congress' political muscle.1 22 Arrangements creating a
multiple executive, and thus defeating the possibility of presidential
political responsibility for governmental function, or threatening
the President's continuing ability to oppose Congress are therefore
suspect.' 2 3 Strauss elaborates that these restraints at least dictate
that Congress follow a principle of parity in determining the possi24
bility of congressional or presidential control of agency action.'
Strauss concedes that the checks and balances concept is "somewhat elusive."' 2 5 It has no direct textual basis, but is drawn from
the context of the Constitution. 26 According to Strauss, it rests
largely on the need for an alternative theory to the discredited separation of powers doctrine and upon the framers' alleged intent to
establish the presidency as an antimajoritarian counterweight to
27
Congress' natural tendency toward tyranny.'
Checks and balances is an attractive substitute for a pure separation of powers analysis because it implies a smoothly operating and
self-correcting vehicle for distributing institutional power between
Congress and the President. Yet, at bottom, it requires the courts to
play a critical defining role without providing the scales upon which
they must determine whether the system is out of balance. Just as
free markets critically depend upon ground rules for the interplay of
economic forces, the checks and balances doctrine requires guideposts in the institutional interplay of legislative and executive powers. The judiciary is the only institutional entity capable of
providing guidance in the absence of clear direction from the framplace in government). Professor Pierce has indicated that he basically agrees with Professor
Strauss. Pierce, supra note 1, at 511-13. Rosenberg disagrees and asserts that the framers of
the Constitution intended the role of the executive branch, at least in domestic matters, to be
ancillary to the legislature's role. In this view, there was no beliefthat the President was to be
an administrative manager with broad authority to regulate the acts of executive officers. Rosenberg, supra note 4, at 1206; see also Van Alstyne, The Role of Congress in Determining Incidental
Powers of the President and of the FederalCourts: A Comment on the Horizontal Effect of "The Sweeping
Clause", 36 OHIo ST. LJ. 788, 795 (1975) (commenting that neutral application of separated
powers means none of three branches of federal government should depend upon either of
other two in exercise of its ancillary powers and privileges).
122. Strauss, supra note 7, at 641.
123. Id.
124. Id.
125. Id. at 640.
126. Id. at 602.
127. Id.
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PRESIDENTIAL CONTROL OF DECISIONMAKING
469
ers. Recognizing that it is also an actor in the institutional interplay,
the judiciary has wisely elected to exercise its traffic cop role sparingly. Consequently, it has not adopted immutable criteria for deciding when one institutional actor's power needs checking, instead
leaving the matter largely to the political process. While the
Supreme Court has adopted checks and balances analysis to some
extent on at least three recent occasions, 128 it has not relied upon
any presumed intent of the framers to use the President as an antimajoritarian counterweight to Congress' majoritarian tendencies.
Why would the framers believe that a President, who is elected by a
majority of a larger constituency than any individual member of
Congress, would naturally curb Congress' majoritarian tenden-
cies? 129 Although checks and balances analysis is a viable alternative
to strict separation of powers analysis, its content is fluid and proba-
bly should remain that way. The doctrine does not speak definitively to the question of congressional power to structure
presidential intervention into the administrative process.
Professor Bruff's idea of the checks and balances principle is not
as well-developed as Strauss' analysis; nor is it as stringent. For
Bruff, the bottom line is that one branch cannot, properly orjustifiably, usurp power that is beyond its useful competence, unduly inter-
fere with a function committed to another branch, or inhibit the
other branches' exercise of constitutional checks. 1 30 Like Strauss,
Bruff seems to rely more upon the context of the Constitution,
rather than its text, for this proposition.
How, then, does the elusive checks and balances principle answer
the question of whether Congress may delegate decisionmaking
128. See Bowsher v. Synar, 106 S. Ct. 3181, 3188 (1986) (denying congressional removal
power of official who actually participates in execution of laws because such power would
provide Congress control over execution of laws); Buckley v. Valeo, 424 U.S. 1, 132-35 (1976)
(per curiam) (upholding President's power under appointments clause over assertions of congressional authority); United States v. Nixon, 418 U.S. 683, 706 (1974) (holding presidential
communications did not have unqualified privilege of immunity from judicial review).
129. Strauss persuasively argues that the Constitutional Convention was called out of a
dissatisfaction, on both theoretical and practical grounds, with a government dominated by a
legislature: "In practice, legislative government did not work; legislatures were fragmented
and episodic in their attention to the affairs of state, diffusing and defeating responsibility. In
theory, the joining of all government functions in one authority, unchecked by others, was an
invitation to tyranny." Strauss, supra note 7, at 603. Although I have not undertaken the
considerable historical research necessary to justify any definite position on this point, I suspect that practical considerations (government under the Articles of Confederation was not
working very well, and the new nation was suffering because of it) overwhelmed theoretical
considerations about majoritarian tyranny. The nation had just fought a revolutionary war
about the tyranny of a single executive, and the Constitutional Convention met "in a climate
of marked apprehension about excessive executive power." Bruff, supra note 12, at 468. The
legislative government under the Articles of Confederation was, frankly, not powerful enough
to be terribly tyrannical.
130. Bruff, supra note 12, at 452.
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power to an official of the United States who is not an agent of the
President? Although Bruff does not address this question explicitly,
he hints strongly that such an exercise of congressional power
would survive a checks and balances analysis in his conclusion that
the President would have too much power if he could issue orders to
administrative agencies that Congress could revoke only with new
legislation and an override of any subsequent presidential veto.13 '
By implication, Congress could pass a constitutional statute providing that a subordinate decision maker could make a particular decision having legal effect despite a direct presidential countermanding
order. 132
Strauss, however, is apparently willing to concede such congressional power only for certain kinds of decisions. Strauss agrees that
the "proposition seems undebatable where Congress can find circumstances, such as the need for objective decision, that warrant
placing administration beyond the sphere of its own as well as the
President's political influence."' 33 At another point, Strauss argues
that presidential intervention into informal rulemaking will not undermine the agency head's power to reject the President's input and
make his own decisions.1 34 Strauss appears to believe that the
checks and balances principle places some limits on congressional
power in cases where Congress cannot find that objectivity is necessary. Whether there would ever be a case in which the Supreme
Court, which itself has powers subject to checks and balances, would
hold that Congress could not legitimately find the need for objective
decisionmaking is questionable.
Hence, under either the Bruff or Strauss application of the checks
and balances approach, Congress does not clearly lack the power
to delegate decisionmaking power to officials who are not agents of
the President. At worst, under Strauss' application of the principle,
Congress might have to make a pro forma finding that objectivity
was desirable in the exercise of the delegated power. Because
objectivity is a universal virtue in almost any kind of governmental
decisionmaking, this would not appear to be a significant limi5
tation. 3
131. Id at 469.
132. Personal conversations with Professor Bruff bear out this reading of his position.
133. Strauss, supra note 7, at 653.
134. Id. at 665-66.
135. Professor Strauss, in collaboration with Professor Sunstein, has more recently acknowledged that the President lacks the authority "either to make particular decisions statutorily vested in at least some subordinate officials, or to direct those officials to make particular
decisions-except insofar as the prospect of removal acts as such a direction." Strauss &
Sunstein, supra note 3, at 201; see also id at 201 n.56 (noting that removal power does not
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PRESIDENTIAL CONTROL OF DECISIONMAKING
471
4. Judicialprecedent
Resorting to Supreme Court decisions in a balance of power analysis is usually problematic because the Supreme Court precedents
are difficult to harmonize.13 6 Nevertheless, the precedents provide
some fairly clear guidance on the validity of Proposition2.137
The analytical starting point is Kendall v. United States ex rel.
Stokes.' 38 After the Postmaster General had refused to pay the relators monies allegedly owed on certain contracts for carrying the
mail, Congress enacted a statute directing the solicitor of the
Department of the Treasury to determine the claims' equity, and
provide the relators appropriate allowances for them according to
equity principles.13 9 The statute further directed the Postmaster
General to pay such allowances to the relators.1 40 After the Postmaster General refused to pay the full amount of the allowances that
4
the solicitor awarded, the relators sought a writ of mandamus.' '
The Supreme Court held that the writ should issue.' 42 The Court
firmly rejected the notion that the Postmaster General's decision
whether or not to pay was subject to the President's direct
43
control. 1
Although the Court emphasized that the Postmaster General's
duty was ministerial in nature, 144 its analysis presumably would not
have changed if the President had attempted to direct or overrule
the decision of the Treasury Department solicitor. 145 It is unlikely
that, had the President ordered the solicitor to find that no monies
were owed, the Court would have let the decision stand, although
the posture of the case in that event may have forced the Court
necessarily equal power to control subordinate's decision because of potential political repercussions associated with use of removal power).
136. See Synar v. United States, 626 F. Supp. 1374, 1375 (D.D.C. 1986) (commenting that
Supreme Court's precedents demonstrate substantial changes over time in Court's resolution
of removal power issues), aff'd sub nom. Bowsher v. Synar, 106 S. Ct. 3181 (1986).
137.
See supra note 103 and accompanying text (explaining Proposition2).
138.
37 U.S. (12 Pet.) 524 (1838).
139.
Id. at 608-09.
140. Id. at 609.
141. Id.
142. Id. at 626.
143. Id. at 610. The Court expressed concern that it would be alarming if Congress could
not impose any duty upon any executive officer that it regards as proper, as long as that duty
is not contrary to other constitutional rights. In such cases, the responsibilities and duties
arise from and are controlled by the law and are not subject to the President's discretion. Id.
144. Id. at 614.
145. Professor Strauss argues that Kendall has little bearing on the general question of the
power of Congress to delegate decisionmaking power to subordinate officials who are not
agents of the President, because the officer in that case had no discretion for the President to
direct. Strauss, supra note 7, at 607. Rosenberg, on the other hand, believes that the Postmaster General interpreted his responsibility to be discretionary and felt that the President could
direct the exercise of such discretion. Rosenberg, supra note 4, at 1207.
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to emphasize due process notions over separation of powers
46
concerns. 1
The holding of Myers v. United States 14 7 is not to the contrary.
In that case, the Court held that Congress may not interfere with the
President's implied removal power by subjecting presidential firings
to the Senate's advice and consent.' 48 Proposition 2 is not inconsistent with the President's removal power. Proposition2 merely postulates a congressional power to prevent the President from substituting his judgment for that of the subordinate in a particular instance, prior to firing him.
No doubt some of the language in Myers and other Supreme
Court decisions reflecting a strict separation of powers view can be
cited against Proposition2,149 but there are no direct holdings contradicting Proposition2, and Kendall has not been overruled. Even the
Court in Myers recognized that a particular officer's duties may be so
peculiarly and specifically committed to his discretion "as to raise a
question whether the President may overrule or revise the officer's
interpretation of his statutory duty."' 150
C.
CongressionalSpending Power
Article 1, section 9 of the Constitution provides: "No money shall
be drawn from the Treasury, but in Consequence of Appropriations
made by Law... -151 This is an explicit constraint on the power of
the President to spend the money of the United States and, simultaneously, a grant of broad power to Congress.1 52 The congressional
146. A more recent case, United States e reL Accardi v. Shaughnessy, 347 U.S. 260
(1954), stands for the proposition that when decisionmaking power has been delegated to a
subordinate decision maker, a higher level decision maker is not empowered to substitute his
judgment for that of the subordinate. That case, however, is arguably distinguishable because
it involved the delegation of decisionmaking power from one official in the executive branch
to another and because it did not involve the power of the President himself. Id. at 265-68.
147. 272 U.S. 52 (1926).
148. Id. at 161.
149. In Myers, for example, the Court declared that the duties of officers dictated by statute fall under the general administrative control of the President by his grant of executive
power, and the President can oversee and direct the officer's construction of statutes to obtain
the uniform execution of laws that article II of the Constitution contemplates. Id. at 135.
Moreover, the Court felt that the President must consider and supervise the abilities and judgments of the officials empowered by statute. Id. Ledewitz suggests that Myers can be read to
support the proposition that all executive officers are agents of the President. Ledewitz, supra
note 109, at 763-64. I agree with Rosenberg that this language "does not extend to the rulemaking and adjudicatory functions committed by law to the subordinate's discretion." Rosenberg, supra note 4, at 1211.
150. Myers v. United States, 272 U.S. 52, 135 (1926). Professor Van Alstyne is very critical of the decision in Myers, calling it a case of "judicial legislation" and "an embarrassment to
the Supreme Court." Van Alstyne, supra note 121, at 803.
151. U.S. CONsT. art. I, § 9, cl. 7.
152. Strauss notes that the framers gave Congress "plenary power over the President's
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
473
power of the purse is unique. The President has no power to initiate an appropriation, although he may certainly make recommendations to Congress. Against a sophisticated exercise of the spending
power, the President's veto is practically useless. The only options
available to the President are to veto the entire appropriations bill,
and thereby risk closing down the federal government, or to accept
the congressionally imposed spending limitations.
By "zeroing out" appropriations to the Office of Information and
Regulatory Affairs in OMB, the office in which President Reagan has
lodged the rulemaking oversight function, 153 Congress can reduce
greatly the President's practical power to oversee the day-to-day activities of the regulatory agencies. Congress, in fact, has done precisely this for the limited OMB function of overseeing Agricultural
Marketing Orders. The President even acquiesced in this striking
limitation on his assertion of oversight authority over the agency's
decisions.1 5 4 The President had to acquiesce; he had no choice
short of violating the explicit proscription of article 1, section 9.155
Congress can directly limit the President's practical power to
order agencies to implement particular policies in particular proceedings by simply appropriating no funds for presidential oversight, thereby depriving him of staff assistance for that purpose.
expenditure of funds (and thus over the size and power of the executive establishment)."
Strauss, supra note 7, at 603. Shane also concludes that congressional power over the regulatory process has no limits because of the appropriations clause. Shane, supra note 4, at 1255;
see also Black, The Working Balance of the American PoliticalDepartments, 1 HASTINGS CONsT. L.Q.
13, 15 (1974) (discussing implications of congressional spending power on executive functions); Van Alstyne, supra note 121, at 824 (suggesting that Congress could use appropriations
power aggressively to shift balance of power in national government); Newman & Keaton,
Congress and the Faithful Execution of the Laws-Should Legislatures Supervise Administrators?, 41 CALiF. L. REV. 565, 568 (1953) (arguing that Constitution permits congressional discretion to
appropriate or withhold funds in reviewing President's budget).
153. President Reagan empowered the Director of OMB to oversee rulemaking subject to
the direction of the Presidential Task Force on Regulatory Relief. Exec. Order No. 12,291, 46
Fed. Reg. 13,193 (1981).
154. See H.RJ. Res. 413, 98th Cong., Ist Sess. (1983) (incorporating by reference H.R.
4139, 98th Cong., 1st Sess. (1983)). RepresentativeJack Brooks recently asked the Chairman
of the House Appropriations Committee to cut off all funds for the Office of Information and
Regulatory Affairs if that office continued to interpret the Competition in Contracting Act in
an "erroneous" fashion. Inside the Administration, Mar. 13, 1986, at 1, 5. Congressman
Dingell later asked the Appropriations Committee to cut off that office's appropriation because its regulatory reform activities have no support in the Constitution or any statute. Inside the Administration, Mar. 20, 1986, at 8. Faced with a credible threat to its appropriation,
the office amended its procedures for reviewing agency rules to make its communications
more public. See infra note 159 and accompanying text (noting revised OMB review
procedures).
155. U.S. CONT. art. I, § 9, cl. 7 (prohibiting withdrawal of money from Treasury without
appropriation by law). It might be noted that I agree with the position that OMB took on the
merits of the marketing order dispute. But this does not change my conviction that Congress
has the power under the spending clause to insulate a bad program from presidential
oversight.
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Assuming that the President can effectively monitor regulatory activity without staff assistance, he would still have to walk across town
or put his own quarter in a pay telephone to transmit any orders to
agency heads. Congress could provide further that agencies could
not expend federal monies carrying out presidential orders,
although such a limitation would, no doubt, be very difficult to
enforce. 56 The President's duty to take care that the laws are
faithfully executed does not imply an obligation on the part of Congress to appropriate any particular level of funding to aid the
President. 157
All of the powers of the President and the courts in domestic affairs pale by comparison with the plenary power of Congress to turn
off the lights.15 8 This simple observation weakens considerably Professor Strauss' otherwise forceful argument that the framers sought
to achieve a delicate (and somehow judicially ascertainable) parity
between Congress and the President. Even if one could divine some
universal units of institutional power by which one could measure
congressional thrusts against presidential parries, there can be no
parity because there is no counterweight to offset Congress' spending power. The fact that the parity concept loses most of its force in
the context of the congressional spending power suggests that it
should not dominate the analysis of congressional power under the
necessary and proper clause.
156. There are strong arguments for the proposition that Congress does not have the
power to condition the expenditure of federal funds on the waiver of an individual right bestowed by the Constitution. It is unlikely, however, that that reasoning would extrapolate to
conditioning the expenditure of funds by the President and his staff for the purpose of limiting presidential power.
157. I have been unable to think of any hypothetical reductio adabsurdumto probe the limits
of the congressional spending power vis-i-vis the President. One possibility would be a congressional refusal to appropriate any funds to any officer in any executive department for the
purpose of responding to a presidential request for a written opinion. The Constitution explicitly empowers the President to "require" written opinions from executive officers. U.S.
CONsT. art. II, § 2, cl. 1. The appropriations limitation, however, would seem to deprive him
of that power. It is difficult to discern a remedy. The Supreme Court could not order the
Treasurer to pay the funds without itself violating its spending power. U.S. CONsT. art. I, § 9,
cl.7. Nor could the Court order the Congress to appropriate them. A court could declare the
appropriations statute unconstitutional, but the President would still have no funds, so long
as Congress made the offending provision nonseverable. The President could order the
Treasurer of the United States to pay funds for this purpose in contravention of article I,
section 9, but this would almost certainly come within the "high crimes and misdemeanors"
criteria for impeachment. U.S. CONST. art. II, § 4. Ultimately the issue may have to be resolved in an impeachment trial in the Senate-not the most hospitable forum for the President's claim.
158. There is thus nothing odd or dated in what Professor Strauss calls the "folkloric
view" that "parts of government responsible for the administration of important government
programs can be put wholly beyond the president's supervisory reach." Strauss, supra note 7,
at 605. Congress can effectively accomplish that result through the exercise of its plenary
spending power.
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PRESIDENTIAL CONTROL OF DECISIONMAKING
475
Although the congressional spending power is vast, it has significant practical limitations. First, it is more like a bludgeon than a
rapier, and Congress must take care not to limit unintentionally
presidential power that is appropriate as a matter of good public
policy. A threat to the appropriation of a White House office, however, can be a very effective negotiating tool in the informal pulls
and tugs between Congress and the President. Apparently, officials
in OMB were sufficiently impressed by a recent threat to the appropriation for its Office of Information and Regulatory Affairs that it
took steps to subject OMB-agency interactions to greater Congressional and public scrutiny.' 5 9 Yet, while the spending power is capable of occasionally inducing a finely tuned executive response, the
response is fluid and more subject to change with changing political
circumstances than statutory structuring.
Second, the congressional spending power is not an effective constraint on the President's removal power because the President does
not need resources to tell an official that he is fired. For the same
reason, the spending power may not be very effective in limiting ex
parte presidential communications, assuming that the President can
educate himself sufficiently to know what to say. The generous
benefactors who replenished the White House china would no
doubt be pleased to provide a lifetime supply of quarters for presidential phone calls, and they might even fund an alternative staff out
of private monies to aid the President in his oversight duties, if that
160
could be accomplished without violating the Antideficiency Act
16 1
and the bribery laws.
Third, even though the risk of a presidential veto of an appropriations bill is relatively small, congressional exercise of the spending
power against the President invites funding crises in which Congress
and the President engage in brinksmanship over who will be held
responsible for the federal government's imminent shutdown.
Fourth, control through the spending power is awkward because it
must be exercised on an annual basis. It depends upon the coopera159. See supra note 154 (discussing factors in revision of OMB review procedures). OMB
has recently revised its review procedures to provide that it will make available upon written
request draft notices of proposed and final rulemaking after they are published and all written
correspondence between OMB and other agencies about draft rules. Oral communications,
however, will remain undisclosed. The revised procedures also provide that OMB must share
with the agencies the contents of written documents that OMB receives from outsiders. Memorandum for the Heads of Departments and Agencies Subject to Exec. Order Nos. 12,291 and
12,498 from Wendy L. Gramm, Aug. 8, 1986, reprinted in Inside the Administration, Aug. 14,
1986, at 4-5.
160. 31 U.S.C. §§ 1341, 1342, 1349-1351, 1511-1519 (1982).
161. For an example, see 18 U.S.C. § 201 (1982) (providing criteria constituting bribery
of public officials).
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tion of the relevant appropriations committees, and it presents
problems of inconsistency when a particular presidential control
power is funded in one year and not in another. Therefore, while
Congress can be expected to use its spending power to limit presidential intervention to some extent, it is appropriate to examine the
constitutionality of other sources of congressional power.
D.
The Necessary and Proper Clause
In examining Congress' power to structure presidential intervention into regulatory agency decisionmaking under the necessary and
proper clause, I begin again with Propositions 1 and 2, which state
that the President may not contradict congressionally established
domestic policy and that Congress may delegate decisionmaking
power to subordinate institutional entities that are not the President's agents. I now argue that Congress has the power, under the
necessary and proper clause, to structure the administrative process
to ensure that the President does not shirk his faithful execution
duty.1 6 2 Many of the most forceful arguments against unrestrained
presidential intervention into regulatory decisionmaking derive
from a fear that the President will exercise his considerable influence to deflect agencies away from their statutory missions. This is
more than just the continual jockeying between Congress and the
President over power to control the bureaucracy. It can substantially affect the content of federal domestic policy and, thus, is a
matter of enduring significance to the beneficiaries of regulation as
well as to regulatees.
The Constitution does not say how the President's duty under the
faithful execution clause should be enforced. One answer is that
there are no institutional enforcement mechanisms, and the President is constrained only by his assessment of the political risks. This
answer is unsatisfying because individual members of the public
cannot be expected to monitor the President's conduct for violations of his faithful execution duty. Moreover, the public must evaluate a whole host of other questions in a presidential election,
thereby reducing the probability that the President's violation of his
duty in any one instance will invite public retaliation. Finally, this
solution is only appropriate if the President's interventions into the
regulatory process are open to public view, a concession that past
presidents have been hesitant to make.
The courts can partially limit presidential disregard of the faithful
162.
U.S. CONST. art. II, § 3.
19871
PRESIDENTIAL CONTROL OF DECISIONMAKING
477
execution clause by overturning incorrect interpretations and by ordering the President or his agents to see that the laws are faithfully
executed. 163 There are, however, considerable drawbacks to this solution. First, a court can only react to alleged dereliction when an
aggrieved party brings it to the court's attention in a particular case
in which the court has jurisdiction and does not otherwise decline to
hear the case for "prudential" reasons. 16 4 Second, the courts are
the least representative of the federal branches and therefore the
least appropriate for telling the occupants of the other branches
how to carry out their duties.' 6 5 Third, so long as the President may
intervene ex parte into agency proceedings, it is not clear how a
party will know when the President or his staff interjects irrelevant
considerations.
The preceeding two enforcement mechanisms are outcome-oriented. They presume that the appropriateness of presidential intervention into an agency proceeding can be evaluated after-the-fact by
examining its output, and they eschew any inquiry into what goes on
in the black box of the agency-White House interaction. Until very
recently, Congress had, in the legislative veto, a tool for conducting
a similar outcome-oriented review of agency decisionmaking and of
presidential input into that decisionmaking. With the demise of the
legislative veto, 166 however, Congress must examine other alternatives if it is to play an enforcement role.
Congress can use its investigatory powers, including its subpoena
powers, to probe individual instances of alleged presidential abuse,
and individual congressional committees have done so frequently in
the last few years.' 67 Congressional investigations could subject
some presidential interventions to close public scrutiny and could
163. This appears to be the vehicle that Strauss prefers. He acknowledges that "presidential participation, like agency decision, seems possible only within the area of discretion that
the particular law establishes." Strauss, supra note 7, at 649. In a footnote he explains that an
indication in the rulemaking record that costs were considered in a rulemaking would be the
appropriate occasion for a summary reversal of the resulting rule. Id. at n.330. Professor
Strauss does not tell us how the rulemaking participants are to find out whether or not the
President or his staff demanded that the agency consider costs.
164.
See C. WRIGHT, LAw OF FEDERAL COURTS 53, 70 (4th ed. 1983). "Prudential reasons"
include, inter alia, questions of broad social import where no individual rights would be vindicated. Id.
165. See Pierce, supra note 1, at 488 (emphasizing that judges have no political
constituency).
166. INS v. Chadha, 462 U.S. 919 (1983).
167. See EPA's Asbestos Regulations:Hearing Before the House Subcomm. on Oversight and Investigations of the Comm. on Energy and Commerce, 99th Cong., Ist Sess. (1985) (discussing EPA's
withdrawal of proposed rule to regulate commercial and industrial asbestos use); Role of OMB
in Regulation: Hearing Before the House Subcomm. on Oversight and Investigations of the Comm. on
Energy and Commerce, 97th Cong., Ist Sess. (1981) (examining administration's regulatory reform program set forth in Exec. Order No. 12,291).
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conceivably even lead to impeachment, although the President's
failure to fulfull his faithful execution duty may not constitute high
crimes and misdemeanors. 168
Congress may instead elect to address the structure of the decisionmaking, rather than its routine output. Structure can have a large
impact on substance. For example, the profound substantive impact
of the National Environmental Policy Act (NEPA)1 69 may be attributable to the fact that its environmental impact statement requirement necessitated the creation of an institutional entity in each
agency with an interest in the environmental impacts of the agency's
activities. 170 Similarly, Presidents Carter and Reagan intended to
affect the substance of agency decisionmaking when they signed executive orders requiring executive agencies to prepare regulatory
17 1
impact analyses detailing the costs and benefits of major rules.
Congress can affect, to some extent, what goes on inside the "black
box" of regulatory decisionmaking by defining carefully the role of
the President and his advisors in that process. Electing this alternative, Congress could experiment with institutional arrangements for
regulatory decisionmaking that best effectuate congressional policies, perhaps to the partial or total exclusion of the President or his
staff.172 Congress' power under the necessary and proper clause,
however, is not as global as its spending power. In particular, it is
subject to explicit textual constraints, and the checks and balances
principle has greater relevance to the analysis.
1.
Sources of congressionalpower
Congress has the power to enact all laws necessary and proper
"for canying into execution... all other powers" vested by the Constitution in "the Government of the United States, or in any Depart168. One of the reasons that President Andrew Johnson was impeached was his refusal to
accede to a statutory limitation on his power to remove government officers. P. FREUND, A.
SUTHERLAND, M. HoWE & E. BROWN, CONSTrrrIONAL LAW 15-16 (4th ed. 1977).
169. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, 4331-4335, 43414347 (1982).
170.
See L. CALDWELL, SCIENCE AND THE NATIONAL ENVIRONMENTAL POLICY ACT (1982)
(noting that NEPA answered problem of how to legislate in area of unclear constitutional
authority and judicial boundaries); S. TAYLOR, MAKING BUREAUCRACIES THINK (1984) (indicating that NEPA attempts to change federal agencies' information development and intelligence
capabilities).
171. Exec. Order No. 12,291,46 Fed. Reg. 13,193 (1981) (increasing agency accountability, providing for presidential oversight of regulatory process, and ensuring wel-reasoned
regulation); Exec. Order No. 12,044, 43 Fed. Reg. 12,661 (1978) (establishing process avoiding regulation that unnecessarily burdens economy); McGarity, The Role ofRegulatoy Analysis in
Regulatory Decisionmahing, reprinted in Administrative Conference of the United States, Recommendations and Report (1985) (discussing control over agency rulemaking).
172. The remainder of this Article will explore the constitutional validity of this final
alternative.
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
ment or Officer thereof."1 73 Because Congress has a continuing
institutional interest in how regulatory agencies interpret and implement the statutes that it enacts, presidential input into the regulatory process is likewise a matter of legitimate congressional concern.
Therefore, absent any constitutional constraints, Congress has the
power to enact laws regulating presidential input into the regulatory
174
decisionmaking process.
2.
Constraints on congressionalpower
a.
Textual constraints
There are few explicit textual constraints in the Constitution on
Congress' power to structure presidential input into agency decisionmaking. The President is empowered to appoint agency heads
with the Senate's advice and consent, 75 and he may require agency
heads to give opinions in writing on subjects related to their du77
ties. 176 Congress may not pass laws that take away those powers.'
In addition, there may be several implicit limitations on congressional structuring of presidential input in the faithful execution
clause, the executive power clause, and the written opinions clause.
The appointments clause is an explicit limitation on congressional
power to choose the officers of the United States who run the federal agencies.' 78 It has little relevance to congressional structuring
because it addresses the identities of the decision makers, not the
structure of the decisionmaking process.
Professor Strauss argues that the written opinions clause implies a
presidential power to meet privately with agency decision makers to
discuss pending proceedings after the parties have completed their
participation. 179 In my opinion, this analysis gives this relatively mi173. U.S. CONsT. art. I, § 8 ci. 18 (emphasis added).
174. Professor Van Alstyne concludes that the necessary and proper clause grants only
Congress the responsibility to provide by statute what power, if any, the executive and judicial
branches are to exercise beyond "that core of powers that are literally indispensable, rather
than merely appropriate or helpful to the performance of their [constitutional] duties." Van
Alstyne, supra note 121, at 794; see also Rosenberg, supra note 4, at 1205 (stating that framers
intended President's role to be ancillary to Congress' role in domestic matters).
175. U.S. CONsT. art. II, § 2, c. 2.
176. Id. cl. 1.
177. See Strauss, supra note 7, at 643 (observing that constitutional text requires President
to maintain these powers). It is possible, however, that Congress can very severely limit the
exercise of those powers through its own spending power.
178. U.S. CONsT. art. II, § 2, cl. 2.
179. See Strauss, supra note 7, at 646-47. Professor Strauss further contends that the
clause contains the "strong implication that consultation if not obedience will ensue." Id. at
640-41; see also Harter, supra note 32, at 564-65 (specifying purpose of requiring written opinions is to permit President to express policy views). But see Rosenberg, supra note 4, at 1209
(arguing that President's power to require written opinions "does not naturally lead to an
inference of power to direct the activities of those who report.").
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nor provision, which amounts to little more than a paperwork requirement for presidential monitoring of bureaucractic thinking, far
too large a role in the Constitution's institution-defining function.
Arguments about implied presidential powers are weakest when
measured against .express congressional requirements. 8 0 Congress
has arguably prohibited presidential contacts in formal adjudications in sections 554 and 557 of the Administrative Procedure
Act, '8 1 without noticeable protest from the President or proponents
of presidential power. Should Congress find it necessary and
proper to prevent such contacts in informal rulemaking, proponents
of presidential control would have the heavy burden of explaining
how the written opinions clause implicitly precludes that exercise of
congressional power. The fact that the President may require written opinions in no way implies that he may demand that inferior
officers listen to what he has to say, and it certainly does not imply
that he can make them listen to him in private.
The executive power clause' 8 2 vests the executive power of the
United States in the President. Many read that clause to speak only
to the situs of the executive power and not to its content, which is
largely a matter for congressional determination.18 3 Others, however, believe that it affirmatively grants particular executive powers
to the President. In addition, some read the faithful execution
clause as an affirmative grant of the power to execute the laws. Finally, some have suggested that the executive power and faithful execution clauses act in combination as a shield against congressional
encroachment upon executive prerogatives.18 4
Perhaps the broadest affirmation of the defensive use of the executive power and faithful execution clauses is Chief Justice Taft's
opinion in Myers v. United States.' 8 5 The Court held that Congress
could not subject the President's power to remove an executive officer to the Senate's advice and consent. Chief Justice Taft wrote
that while the President's executive power was essentially a grant of
the power to execute the laws, the President needs the assistance of
subordinates to do so. The President's duty to take care that the
laws be faithfully executed, therefore, implies a presidential power
to select those who are to act for him under his direction. Because
180. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring) (addressing President's implied authority as Commander-in-Chie.
181. 5 U.S.C. §§ 554, 557 (1982).
182. U.S. CONST. art. II, § 1.
183. See Rosenberg, supra note 4, at 1206-10 (maintaining that article II was not intended
to grant power to President to control administrative decisionmaking process).
184. Strauss, supra note 7, at 640-66; Pierce, supra note 1, at 524.
185. 272 U.S. 52 (1926).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
his selection of administrative officers is essential to the execution of
the laws, and in the absence of any express limitation respecting removals, the President's power extends by implication to the power
186
to remove those for whom he cannot continue to be responsible.
ChiefJustice Taft, nevertheless, conceded that "there may be duties
so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer's interpretation of his statutory duty in a
87
particular instance."'
The broad dicta in Myers have been limited greatly by later cases
like Humphrey's Executor v. United States,18 8 holding that Congress may
limit the President's ability to remove the heads of independent
agencies, 89 and Youngstown Sheet & Tube Co. v. Sawyer,' 90 limiting the
implied powers of the presidency.' 9 1 Yet while Myers does not preclude Congress from lodging decisionmaking power in subordinate
agencies, Taft's opinion raises the question whether other powers
are so essential to the President's execution of the laws that Congress may not limit them.
Professor Strauss persuasively argues that the faithful execution
clause "requires that [the President] have significant, ongoing rela19 2
tionships with all agencies responsible for law administration."'
He proceeds further, however, to argue that the President's responsibility "does not admit relationships in which the President is permitted so little capacity to engage in oversight that the public could
no longer rationally believe in that responsibility." ' 93 Like his parity test, this "public-perception-of-responsibility" test would appear
to suffer in its application. Who would apply the test? Apparently,
the courts would. How would it be applied? Through Gallup polls?
Through the Court's uninformed predictions of how the public
would view the impact of a statute on the President's faithful execution power? These questions do not have obvious answers because
the test lacks viable criteria. The "public-perception-of-responsibility" test ultimately invites the judges to make their own assessments
19 4
of the wisdom of particular congressional structuring efforts.
186. Id. at 117.
187.
188.
Id. at 135.
295 U.S. 602 (1935).
189. Id. at 631-32.
190. 343 U.S. 579 (1952).
191. Id. at 587-89.
192. Strauss, supra note 7, at 648.
193. Id. at 648-49.
194. Even conceding the applicability of the test, one could argue that the public might
rationally believe in the President's responsibility to take care that the laws be faithfully executed, even though its exercise was constrained by requirements that the relationships be-
482
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Professor Shane reads Myers to imply a functional approach that
would "legitimate a core power of Presidential supervision" that
would in turn allow the President to "require regulators to adapt
each agency's decisionmaking to the exigencies of the national economy, and to fulfill each agency's statutory responsibilities in a manner that will least jeopardize the accomplishment of other agencies'
legislative mandates." 195 Professor Shane suggests that this intersti96
tial power will not be abused by the President's staff in the OMB,
arguing that OMB would not attempt to reassess closely all the difficult questions addressed by EPA in its rulemaking efforts and would
instead "stick to a more general policing role, pressing consultation
and analysis on the President's primary concern with cost-effectiveness." 19 7 My own research on regulatory analysis in agency decisionmaking suggests that OMB routinely involves itself very deeply
in the details of agency rules, at least as deeply as the reviewing
courts. 198 Numerous other studies of OMB's role confirm that
OMB does not, in practice, shy away from technical details and confine itself to broad problems of regulatory policy.1 99 There is virtue
in assigning to an "institutional skeptic" the role of analyzing
agency decisionmaking in detail and questioning agency output
from a cost-effectiveness point of view, and OMB has many bright
economists and policy analysts on its staff who can perform this role
capably. But the risk of abuse is very high if OMB has the power,
interstitially or otherwise, to overrule an agency. Assuming that the
executive power and faithful execution clauses do legitimate a core
of power of presidential supervision, that power need not include
tween the President and the agencies be open to public view. Indeed, the test would seem to
require ongoing public scrutiny of those relationships.
195. Shane, supra note 4, at 1249-50.
196. See id. at 1250 n.81 (basing conclusion on OMB's limited institutional capabilities and
impetus of cost-effectiveness behind Exec. Order No. 12,291).
197. Id. In this symposium, Professor Shane argues that I have misunderstood his earlier
views and that his optimistic views about OMB's reluctance to substitute its judgment for that
of the agencies on technical matters only apply "if the system works well." Shane, Conventionalism in ConstitutionalInterpretationand the Place of Administrative Agencies, 36 AM. U.L. REV. 573,
587 n.70 (1987). I would agree with Professor Shane that the system will not be abused if it
works well, but we may or may not agree about whether it is currently working well.
198. McGarity, supra note 60.
199. See G. EADS & M. Fix, supra note 15, at 108 (discussing Reagan administration's approach towards predecessor's regulatory policies); Olson, supra note 36 (discussing OMB authority and involvement in administrative rulemaking); Rosenfield, Presidential Policy
Management of Agency Rules Under Reagan Order 12,498, 38 ADMIN. L. REV. 63, 93-94 (1986)
(rebutting argument that OMB staff is too small to become involved with technical points);
STAFF OF THE HOUSE SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS OF THE COMM. ON ENERGY
AND COMMERCE, 99TH CONG., 1ST SESS., REPORT ON A CASE STUDY ON OMB INTERFERENCE IN
AGENCY RULEMAKING (Comm. Print 1985) (questioning OMB's interference with EPA asbes-
tos regulations).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
483
the power to direct agencies, in private, how to exercise the discretion that Congress has delegated to them.
b.
Separation of powers
The separation of powers doctrine is not especially useful for
probing congressional power to structure presidential intervention
under the necessary and proper clause. 20 0 Assuming that the existence of regulatory agencies could survive a separation of powers
analysis, Congress could unquestionably constrain and even prohibit presidential input into agency rulemaking and adjudication,
because those functions are "legislative" and "judicial," rather than
"executive," in nature. 20
c.
Checks and balances
Unlike its spending power, Congress' power under the necessary
and proper clause is conceptually subject to a checks and balances
analysis, and that analysis suggests that Congress does not have unlimited power to structure presidential intervention. But in my
view, the checks and balances doctrine does not attain a very high
status in the hierarchy of constitutional doctrines. Had the framers
truly been concerned with maintaining a balance of power among
the three competing branches, they surely would not have given
Congress such unlimited power over appropriations. They would
have given the President and the courts some alternative access to
resources in the event of constitutional showdowns. The fact that
the framers gave Congress plenary power over the purse, at the very
least, indicates that they meant for Congress to be the first among
equals. The courts are not equipped to engage in a finely tuned
balancing analysis of institutional power allocation in evaluating
congressional control over presidential intervention. As previously
discussed, even if the courts were competent to undertake the operation, the framers provided no weights and measures and no scales
for detailed comparisons. Ultimately, the measure must be the
court's own subjective determination of when Congress or the President has intruded too greatly into the domain of the other, an analysis that may invite the court to go too far.
Professor Strauss, by contrast, assigns to checks and balances
analysis a primary role in evaluating congressional limitations on
200. See Bruff, supra note 12, at 470-73 (comparing Court's inconsistent interpretation of
separation of powers doctrine); Strauss, supra note 7, at 578 (rejecting rigid separation of
powers doctrine).
201. See Rosenberg, supra note 4, at 1216 (noting that only through congressional exception may President have authority to control administrative rulemaking).
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THE AMERICAN UNIVERSITY LAW REVIEW
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presidential power. Strauss argues that Congress' capacity to structure administration of the laws is constrained most significantly by
the need to perpetuate the tensions and interactions among the
three branches named in the Constitution. "Whatever arrangements are made, one must remain able to characterize the President
as the unitary, politically accountable head of all law-administration,
sufficiently potent in his own relationships with those who actually
' 20 2
perform it to serve as an effective counter to a feared Congress.
Strauss goes on to argue that the central inquiry is the identification
of those relationships that are necessary either for textual conformity or preservation of the possibility of the President's continuing
20 3
effectiveness.
Professor Strauss further maintains that "congressional arrangements that threaten the viability of an independent, unitary executive capable of opposing the Congress' own assertions of power are
• . .suspect." 20 4 From this articulation of the checks and balances
approach, Professor Strauss derives his parity principle under which
"Congress cannot favor itself in providing for political oversight of
'20 5
an agency that administers ... its laws."
The most obvious drawback to Professor Strauss' prescription is,
once again, the difficulty of its application. 20 6 While it is fairly easy
conceptually to apply the parity notion to an ex parte telephone call
and conclude that Congress may not prevent presidential calls without at the same time banning congressional phone calls, it is difficult
to see how the parity principle would apply in other contexts. By
what calculus shall we compare an exercise of Congress' power
under the necessary and proper clause with an exercise of presidential power under the faithful execution clause? For example, would
a statute allowing the President to be cross-examined by affected
parties concerning his input into an agency proceeding intrude
more seriously on presidential power than an executive order
prohibiting any agency decision maker from responding to congressional requests for information would intrude on congressional
power? What are the allowable congressional countermeasures for
unilateral exertions of presidential power like Executive Order
12,498?207 Or is that executive order merely a response to some
202. Strauss, supra note 7, at 597.
203. Id.
204. Id. at 605.
205. Id. at 650.
206. Strauss recognizes "the difficulty of reaching judgments premised on considerations
of constitutional structure and an assessment of impact on function." Id. at 628.
207. Exec. Order No. 12,498, 50 Fed. Reg. 1036 (1985) (establishing process for management of agency rulemaking through annual publication of regulatory program).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
485
prior exercise of congressional power? Does there have to be an
OMB because there is a GAO? Does parity work both ways? Could
Congress, for example, abolish the Congressional Budget Office
without at the same time eliminating the budgetary functions of
OMB? All of these questions raise serious doubts about the efficacy
of Strauss's parity principle, and they consequently suggest that
heavy reliance on checks and balances analysis is not likely to yield
satisfying answers to important institutional questions.
A second difficulty with heavy reliance on checks and balances
8
analysis is the expansive role that it assigns to the judiciary, 20 the
institution that by default must perform the finely tuned analysis.
The judiciary is the least accountable branch. Given the analytical
softness of the checks and balances test in general, and the parity
principle in particular, telling the courts to apply it to individual
statutory constraints on presidential control of the bureaucracy is
tantamount to assigning them the role of unconstrained arbiter of
battles between the other two branches. Surely, the framers did not
envision the judiciary as an institutional nursemaid with the job of
forever policing the two bickering babies to ensure that neither gets
the upper hand.
Finally, Professor Strauss' analysis projects the notion of a weak
President constantly fending off a powerful Congress. 20 9 Not all observers of the relationship between Congress and the President
would agree with this assessment.2 1 0 Rather than assume with Professor Strauss that the parity principle is a necessary presidential
shield against attack from a "to be feared Congress," we might
over Congress'
more appropriately share Professor Bruff's concern
211
power.
executive
excessive
ability to ward off
d. Executive privilege
The doctrine of executive privilege is a final possible constraint
on Congress' power to limit ex parte presidential communications.
The doctrine has no textual basis. It is implied from the executive
208. See Strauss, supra note 7, at 642 (indicating that courts discovered that inquiries
based on checks and balances often lead to imprecise results).
209. Id. at 597.
210. See A. SCHLESINGER, THE IMPERIAL PRESIDENCY (1973). Schlesinger states that
"[there is] a permanent tension between the Presidency and the other branches of
government. And in our own time it has produced a conception of presidential
power so spacious and peremptory as to imply a radical transformation of the traditional policy. In the last years presidential primacy, so indispensable to the political
order, has turned into presidential supremacy."
Id. at viii.
211. See Bruff, supra note 12, at 507-08 (indicating that Congress must pass legislation and
then likely override presidential veto in order to change presidential policy).
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[Vol. 36:443
power 21 2 and faithful execution clauses 2 13 and from the President's
2 14
inherent power.
The Court in United States v. Nixon 21 5 recognized a limited doctrine of executive privilege. The Court in that case, which involved
a subpoena in a criminal proceeding for White House conversations, recognized the legitimate need for secrecy in deliberations between the President and his staff.2 1 6 The Court refused, however, to
hold that the asserted privilege would always prevail when it conflicted with other values. The Court explained that reading the
President's article II powers as providing an absolute privilege
against a subpoena to enforce criminal statutes on no more than an
unspecific claim invoking the public interest in confidentiality of
nonmilitary and nondiplomatic considerations would overthrow the
constitutional balance, crippling the courts' article III role.2 1 7
The Court's balancing approach in Nixon allows Congress to determine that other values, such as the value of public participation in
administrative decisionmaking, outweigh the policies underlying executive privilege in nonmilitary and nondiplomatic contexts. Executive privilege rests primarily on the premise that insulating
communications between decision makers and subordinates from
public scrutiny will encourage candid debate and thereby promote
better decisionmaking.2 1 8 It is not clearly applicable to communications between decision makers in the agencies and non-decision
makers, such as the President and his staff. When the President is
not the decision maker, the doctrine seems only marginally applicable to his overtures to the congressionally assigned decision makers
in the executive branch. In any event, Congress may determine that
exposing presidential communications to public scrutiny may ultimately yield better decisions in the agencies.
3.
Congressionalpower to limit ex parte contacts
Few would argue that Congress may not prohibit ex parte presidential intervention into individual adjudications, and it arguably
has done so in sections 554, 556, and 557 of the Administrative Pro212. U.S. CONST. art. II, § 1, cl. 1.
213. Id. art. III, § 3.
214. See United States v. Nixon, 418 U.S. 683, 705-06 (1974) (indicating certain implied
powers and privileges flow from enumerated powers).
215. 418 U.S. 683 (1974).
216. Id. at 705. The Court remarked that candor is often tempered with a regard for
outward appearances when people expect their remarks to receive public dissemination. Id.
217. Id. at 707.
218. See, e.g., DeMuth & Ginsberg, supra note 1, at 1085-86 (indicating that deliberative
process can only flourish if its participants may discuss frankly proposals at issue).
1987]
PRESIDENTIAL CONTROL OF DECISIONMAKING
487
cedure Act. 219 Although the distinction between rulemaking and
adjudication for this purpose is usually justified on due process
grounds, I argued in Part II that the due process justifications may
be oversold. If Congress has the power to create an open public
process for governmental decisionmaking in adjudications, it should
likewise have the power to formalize rulemaking to that extent, even
if this means limiting the role of one of the coequal branches in both
cases. 22 0 A proscription on ex parte presidential interventions into
ongoing public administrative proceedings or a requirement that
the content of such presidential contacts be reduced to writing and
placed in the administrative record would be a relatively unintrusive
congressional limitation on presidential prerogatives. Professors
Verkuil and Strauss, nevertheless, would limit Congress' ability to
22 1
impose even this requirement with respect to executive agencies,
and Professor Strauss would apparently extend that limitation to in222
dependent agencies as well.
Limitations on personal communications between the President
and subordinate decisionmaking officials in the executive agencies
invoke the executive privilege doctrine. A complete ban on presidential ex parte communications with agency decision makers would
clearly be unconstitutional. The President must be able to communicate personally with agency decision makers about matters of
national policy if he is to be effective. Because such broad conversations about national policy are so far removed from the actual execution of the laws, they are not likely to raise large concerns about
whether the President is shirking his faithful execution duty by undermining statutory policies. In addition, separation of powers and
checks and balances considerations would be greatly offended by a
statute that would prevent the President from speaking privately
about matters of domestic policy with members of his cabinet and
other subordinate agency decision makers, whether they are located
in executive or independent agencies.
When the topic relates to a specific proceeding before an agency,
however, the matter is entirely different. Prohibiting or requiring
the publication of presidential communications in particular proceedings clearly comes within the appropriate exercise of congressional power under the necessary and proper clause. A secret
219. 5 U.S.C. §§ 554, 556-557 (1982).
220. I do not argue here that Congress has in fact limited ex parte presidential intervention in formal rulemaking. Indeed, I know of no instance in which it has done so explicitly.
221. Strauss, supra note 7, at 656-60 (discussing congressional regulation of executive
privilege); Verkuil, supra note 7, at 958-59 (discussing need for privacy in consultation).
222. Strauss, supra note 7, at 653-62.
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communication about an ongoing proceeding is precisely the kind
of presidential intervention that could lead the citizenry to question
whether the President was fulfilling his faithful execution obligations. To provide some assurance that the President is not attempting to undermine congressional policy or to substitute himself for
the congressionally assigned agency decision maker, Congress may
require that the communications be included in the record or pro223
hibited entirely.
These requirements would not unduly constrain presidential
power. The President could still communicate his general policy
preferences to agency officials at any time. He could express his
preferences about the outcome of particular rulemaking proceedings in on-the-record communications to the agency, and he could
remove executive agency heads when they did not execute his policy
preferences effectively. These restrictions do not represent a significant congressional aggrandizement of its own power. They only
assure that if the President communicates with the agency about a
pending proceeding, Congress and the public will know about it and
thereby hold the President accountable.
Although there are sound reasons for believing that candor is critical to presidential decisionmaking, executive privilege considerations are almost entirely inapplicable when the President is not the
decision maker. It turns the executive privilege doctrine upside
down to argue that the President, who is not the decision maker, is
privileged to communicate privately with the agency head, who is
the decision maker. Regulatory agency decisionmaking is not an instance in which candor is required to enhance the President's decisions, because he makes no decision in such proceedings. Any need
for the President to evaluate the performance of subordinate decision makers can be satisfied by conversations after the conclusion of
the particular proceedings at issue.
Finally, the above conclusions do not depend upon whether the
proceeding before the agency is rulemaking or adjudication. Having concluded that on-the-record presidential participation in
agency decisionmaking is appropriate under an institutional analysis, I find few due process arguments against such intervention in
formal adjudications. If the President has policy views that he would
like to share with the agency in a formal adjudication, I think he and
his immediate staff should always be privileged to do so (perhaps by
way of an amicus submission) without being subject to cross-exami223. See Morrison, supra note 24, at 1071-72 (suggesting that Congress prohibit all OMB
involvement in agency rulemaking except through on-the-record comments).
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nation or other procedural inconveniences. 2 24 This may, however,
require an amendment to the Administrative Procedure Act,2 25 an
amendment that is necessary and appropriate in my view.
E. Conclusion
The President derives his power from the Constitution and the
popular will, and he is the most powerful government official in the
United States. The Constitution, however, places the Supreme
Court above the President on questions of constitutional interpretation, and it places Congress above him on questions of domestic
policy. Truces may be declared in the continual battle between the
President and Congress over the power to influence regulatory
agency decisionmaking; the battlegrounds may shift, but the war will
never end. Congress has the power to win the war through the exercise of its spending power, but that weapon is more like an arsenal
of nuclear bombs. It is so potent, and its consequences so devastating, that it will never be used to its full potential. Congress can,
however, use its less awesome powers under the necessary and
proper clause to ensure that the President does not shirk his duty to
see that laws are faithfully executed. In particular, Congress can require the President to fight his battles for control over agency decisionmaking in open view, where the public can work its will through
the democratic process.
224. If the President seeks to present factual evidence in an agency adjudication, however,
I believe that due process concerns require that the President be subject to the same procedural checks as any other party to such a proceeding, including confrontation and crossexamination.
225. 5 U.S.C. §§ 551-559, 701-706, 1305, 4301, 5335, 5362, 7521 (1982).