EXECUTIVE OVERSIGHT OF
RULEMAKING: THE PRESIDENT IS
NO STRANGER
PHILIP J. HARTER*
INTRODUCTION
Lest it be important to anyone in interpreting or discounting what
follows, the views expressed in this comment are those of a feet-inthe-mud, inside-the-beltway practicing lawyer. The focus is more
on the practical, daily functioning of rulemaking and White House
oversight as opposed to any high theory or deep scholarship. There
is, however, the inclination of a professor lurking here because I do
teach on the side. Furthermore, there is likely some defensiveness
because I also participated in the design of both the Carter and Reagan Executive Orders. I also served as a consultant to several regulatory agencies and have observed the effect of the orders from that
side. Thus, the perspective is of one who believes that at least some
oversight is critically important and certainly legal, at least up to a
point.
I.
PRELIMINARY NOTE ON BACKGROUND AND AUTHORITY
This symposium considers the role of the President in regulation
and whether the "fourth branch" even exists. As Professor Bruff
noted,' it seems bizarre that 200 years into the Republic serious
scholars and practitioners still are discussing and debating how the
government is arranged. Indeed, the vociferous disagreement over
the allocation of power undoubtedly has been the overriding issue
of administrative law for the last decade. The relationship of the
courts to administrative rulemaking evolved during this period 2 and
* A.B. (1964), Kenyon College; M.A. (1966),J.D. (1969) University of Michigan. The
author is a lawyer in private practice in Washington, D.C.
1. Bruff, On The ConstitutionalStatus of the Administrative Agencies, 36 Am. U.L. REv. 491,
491 (1987).
2. See DeLong, Informal Rulemahing and the Integration of Law and Policy, 65 VA. L. REV.
257, 262-65, 355-56 (1979) (analyzing development of informal rulemaking and proposing
course for future decisionmaking in administrative law). Certainly, the evolution of hybrid
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:557
was challenged in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.3 Congress also discussed this relationship
at length in the guise of the "Bumpers Amendment" 4 to the regulatory reform bills. The question of Congress' role in regulatory decisions was posed by the explosion of legislative vetoes to nearly every
regulatory initiative and culminated with the Supreme Court declaring them unconstitutional in INS v. Chada.5 These controversies
over structure have had a pervasive effect on the regulatory reform
debate and on the codification of administrative procedure that generated great effort for numerous years. Surely, it is strange that this
debate is occurring so long after the creation.
6
Perhaps this is not such a bad thing. As Professor Strauss noted,
the checks and balances and the separation of power undoubtedly
work better if their contours are not defined too clearly. The vagueness permits a struggle at the margin and a chance to grow with
changing needs.
The starting point for any consideration of the relationship between the President and the administrative agencies, and indeed the
role of the administrative agencies themselves, must necessarily be
the Constitution. Proponents throughout the spectrum of views cite
an occassional passage, like Biblical text, to support their position.
Although an exegesis can help point the way and even define bits
and pieces of administrative structural relationships, it is a mistake
to elevate any one constitutional passage to the exclusion of others,
and to claim that it answers our prayers as to who can do what to
whom. Even the most careful analysis contains a considerable
amount of judgment and supplied theory. 7 Thus, the Constitution
can serve as a guidepost for developing a current view, but it does
not ultimately resolve these matters. Other factors also must be
considered.
Just as it is a mistake to rely too much on the Constitution's bare
text, it is an even greater mistake to rely too heavily on the two marulemaking under judicial oversight was a major issue, but it too was concerned with the allocation of power as much as the procedural requirements imposed on agencies.
3. 435 U.S. 519 (1978).
4. 5 U.S.C. § 706 (1982) (containing Bumpers Amendment which modified standards
for judicial review of agency action); S. 1080, 98th Cong., 2d Sess., 128 Cong. Rec. S2717
(Mar. 24, 1982).
5. 462 U.S. 919 (1983). The Court in Chada held unconstitutional the single house veto
contained in § 244(c)(2) of The Immigration and Nationality Act that allowed either house of
Congress to invalidate, by resolution, a decision of the executive branch. Id. at 959.
6. Strauss, The PlaceofAgencies in Government: Separationof Powers and the Fourth Branch, 84
COLUM. L. REV. 573, 602-604 (1984).
7. See Strauss, supra note 6, at 650-53 (developing interesting and probably workable
theory on political oversight of government agency). Surely, this theory is as much Strauss' as
it is the Founding Fathers.
19871
EXECUTIVE OVERSIGHT
jor Supreme Court opinions that are often cited for elucidating the
relationship between the presidency and the agencies. The first
case, Myers v. United States,8 probably should be discounted somewhat because a former President wrote it.9 The second, Humphrey's
Executor v. United States,' 0 certainly should not be relied upon as gospel. It was, after all, decided on the same day as A.L.A. Schechter
Poultry Corp. v. United States 11 when the distrust of a strong executive
2
was at its apogee, or perigee, depending upon one's viewpoint.1
Moreover, the Court's discussion in Humphrey is based on assertions
and prevailing political assumptions, as well as on any textual foundation. For example, the Court simply assumed the existence and
legitimacy of "independent" agencies separate from the executive
branch.' 3 Humphrey's Executor should therefore be accorded the
same respect as Schechter and should be interpreted as establishing a
general truth defining an outer bound that needs to be considered
when examining the allocation of power, but not as demanding the
obsequence sometimes accorded it. Rather, the times and political
theories have changed: the constitutional text, largely ignored then,
has remained constant.
Two major theories animate the New Deal structural model. The
first contends that technocratic experts are best suited to make regulatory decisions because those experts are able to reach the "right"
or "correct" answer if left alone to exercise their professional judgment.' 4 Thus, this view found it important to insulate the experts
from political contamination by placing them in independent agencies, beyond the President's direct reach. The second theory emphasizes the need to protect the integrity of adjudication which
constituted the main way, if not the only way, that agencies functioned. Neither theory is particularly relevant in the 1980s. Foremost, we have largely abandoned a rigorous reliance on a
8. 272 U.S. 52 (1926).
9. Id. (opinion was written by Chief Justice Taft, formerly President Taft). Another
reason to discount Myers is that the case involved only the removal of an officer with purely
executive functions, not an officer of an independent agency or one with mixed duties.
10. 295 U.S. 602 (1935). In Humphrey's Executor, the Court limited the President's power
to remove a commissioner of the Federal Trade Commission for one or more of the causes
stated in § I of the Federal Trade Commission Act. Id. at 621, 632.
11. 295 U.S. 495 (1935). In this case, the Court struck down § 3 of the National Industrial Recovery Act of 1933 as an unconstitutional delegation of legislative power to the executive. Id. at 541-42.
12. These decisions preceded President Roosevelt's Court packing scheme that many
believe led the Court to accept more readily the new administrative agencies.
13. See Humphrey's Ex'r v. United States, 295 U.S. 602, 629-30 ("The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted ... ").
14. See Harter, Negotiating Regulations: A Cure for Malaise, 71 GEo. L.J. 1, 9 (1982) (contending that APA was based on notion of agency expertise).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:557
technocratic model of administration and instead have recognized
that many of the requisite choices are, in fact, political.15
As to the need for direct insulation, we have virtually abandoned
the practice of creating fully independent agencies, like those of the
New Deal, that combine the three governmental functions. Only
two have been established since the New Deal.1 6 Instead, responsibilities have been distributed throughout the agencies with a randomness that reveals a lack of coherent theory. 17 One can find any
combination of the three governmental functions in an agency in
any location: cabinet, independent executive, or fully independent
agency.
As to protecting the integrity of adjudication, a major part of the
anxiety over political involvement was the fear that judicial decisions
would be made on political grounds.' 8 The Constitution, therefore,
was invoked to create a form of separation of functions. This concern has been resolved by specifying the procedures of trial-type
hearings through the Administrative Procedure Act (APA). 19 The
APA defines the agency's authority and, hence, the President's authority with respect to the range of discretion versus the resulting
record.2 0 This would seem to blunt the constitutional concern with
separation of functions.
Due to the abandonment of the technocratic model of administrative law and its reliance on independent agencies, with the haphazard location of functions in agencies of varying proximity to the
executive branch, and the establishment of general adjudicatory
15. See Stewart, The Reformation of American Administrative Law, 88 HARv. L. REV. 1669,
1800 (1975) (contending that transformation of agency decision process into explicitly political form might heighten judicial sensitivity to problem of discretion in agency policy choice);
Jaffe, The Illusion of the Ideal Administration, 86 HAav. L. REV. 1183, 1197 (1973) (noting that
Congress transferred political process to more specific administrative agencies).
16. See Harter, supra note 14, at 13 n.68. The two independent agencies merging the
three governmental functions that were created since the New Deal are the Consumer Product
Safety Commission and the Commodity Futures Trading Commission. Id.
17. The formerly independent Federal Power Commission has been transformed into
the Federal Energy Regulatory Commission and placed in a cabinet department, albeit in a
fairly protected corner. The Social Security Administration employs hundreds of Administrative Law Judges to decide tens of thousands of cases each year and yet it is also in a cabinet
department. The trials involved in cancelling a pesticide are every bit as adjudicatory as those
of the Federal Trade Commission that were in issue in Humphrey's Executor, and they are performed in an executive branch agency that is not in a cabinet department. The Occupational
Safety and Health Review Commission hears cases but lacks the legislative authority; the FTC
now has substantive rulemaking power.
18. See Cooper, Administrative Justice and The Role of Discretion, 47 YALE LJ. 577, 577-78,
662 (1938) (outlining widespread antipathy toward early use of discretion by administrative
officers); Davison, Administrative Legislation, 34 ILL. L. REV. 641, 651 (1940) (discussing pervasive distrust of quasi-judicial functions of administrative agencies).
19. Administrative Procedure Act, Pub. L. No. 404, 60 Stat. 237 (1946) (codified as
amended in scattered sections of 5 U.S.C. (1982)).
20. See id. §§ 556, 557.
EXEcuTIvE OVERSIGHT
1987]
procedures, the limitations on presidential involvement that seem to
flow from Humphrey's Executor should not be taken too seriously.
They merely reflect a bygone political era and never were based
squarely on the constitutional text. It is, therefore, necessary to examine the current theory of administrative law to determine what is
appropriate under the prevailing constitutional and statutory
theories.
II.
DISCRETION AND RULEMAKING
Both the statute and the rulemaking record define an agency's discretion. The statute establishes the scope of agency authority and
2
the relevant factors an agency must consider when taking action. 1
The agency is then obligated to create a record that develops the
range of facts on which the agency's actions are based: it must "examine the relevant data and articulate a satisfactory explanation for
its action, including a 'rational connection between the facts found
and the choice made.' "22
On the other hand, in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,23 the Court held that if the statute and legislative
history are not sufficiently clear that it can be said that Congress
actually decided the matter, the issue should be interpreted as a de
facto delegation of substantive authority to the agency to shape a
policy consistent with the statute's scope.2 4 Heckler v. Chaney2 5 provides that an agency has virtually unreviewable discretion with re26
spect to deciding when to take action within its scope of authority.
Congress, however, can narrow that discretion at any time by directing the agency to do something in specified situations. 2 7 In such
a case, the courts will order agencies to take appropriate action.
In any event, Congress continues to have the ability to define an
agency's scope of authority. The agency's authority is constrained
further by the record developed in rulemaking proceedings.
Neither the statute nor the record, however, will point to only one
result. The agency, therefore, usually retains an element of discretion to combine the record and the statutory dictates to formulate
21.
22.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411 (1971).
Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
23.
24.
25.
26.
27.
467 U.S. 837 (1984).
Id. at 844.
470 U.S. 821 (1985).
Id. at 1655.
Id.
562
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[Vol. 36:557
an acceptable rule. Within the resulting range of discretion, politics-not law-prevails.
Here, as elsewhere, Holmes was right when he stated that no
"brooding omnipresence" establishes the right or only acceptable
answer as to what the agency must do.28 Nor will logic customarily
direct a singular result; these are judgment calls that must reconcile
differing values and concerns that cannot be maximized simultaneously. 2 9 Nor is there any sort of inchoate legislation or legislative
intent on which members of Congress can base confinement of
agency discretion by describing how they "expected" the agency to
administer a bill. Likewise, bills passed in one house that fail in the
other are of zero legal influence. Although a politically savvy agency
would consider the views of powerful members of Congress, these
actions do not confine an agency's discretion except to the extent
they illuminate the Congress' original intention in enacting the legislation. Congress acts only by legislation.3 0
Thus, within the range of discretion, an agency is free to makeindeed, is required to make-a political choice. 3 ' Modern rulemaking, therefore, encompasses both the technocratic and the political:
the technocrats develop the often massive factual material and analyses that serve as a predicate for rulemaking while those who are
interested in and affected by a rule have the right to participate in its
development by submitting factual and policy materials that the
28. See Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
29. See, e.g., Harter, supra note 14, at 15-18 (contending that agencies inevitably must
take into account broad range of considerations necessary for reconciling competing values);
Stewart, supra note 15, at 1683-84 (asserting that agencies must consider various interests
affected by their decisions as predicate to balancing elements essential to determine public
interest); see also McGarity, Substantive and ProceduralDiscretionin Administrative Resolution of Science Policy Questions: Regulating Carcinogensin EPA and OSHA, 67 GEO. LJ. 729, 784-96 (1979)
(proposing purposive analysis for agency rulemaking based upon congressional intent as revealed in agency's governing statutes).
30. See INS v. Chada, 462 U.S. 919, 951-59 (1983) (finding that Congress must pass
legislation before it can effect change in law or executive officer's decision); Center for Auto.
Safety v. Peck, 751 F.2d 1336, 1342 (D.C. Cir. 1985) (finding that expressions by individual
congressmen as to how statute is to be implemented are without legal effect).
31. See DeLong, New Wine for a New Bottle: Judicial Review in the Regulatory State, 72 VA. L.
REV. 399, 419 (1986). There are, as DeLong indicates, a number of decisions requiring an
agency to use appropriate means for making decisions. These are largely an extension of the
ubiquitous requirement mandated in SEC v. Chenery Corp., 318 U.S. 80 (1943), that an
agency explain its actions and that a court judge those actions primarily on the basis of that
explanation. This is certainly not inconsistent with the agency being called upon to make a
political choice. Indeed, Chenery itself involved just such a choice. What is required is that the
agency must explain that choice based on the statute, the record, its expertise, and the political choice involved. If it fails to do so, the court will set it aside as arbitrary or capricious. See
Levin, Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 ADMIN. L. REV.
239, 242-90 (1986) (surveying existing judicial review doctrines and proposing more precise
analytical framework for defining standards of review); Garland, Deregulation andJudicialReview, 98 HARV. L. REV. 505, 586-91 (1985) (contending that agencies seek to conform more to
congressional purposes when given broad discretion to regulate).
1987]
EXECUTIVE
563
OVERSIGHT
agency must consider. The agency must then make a politicaljudgment that is confined by the statute and the record.3 2 Because there
are always political decisions, this discussion concerns solely how
they are made.
III.
WHO DECIDES POLITICAL DECISIONS AND
How
Although one can argue to the contrary,33 it is now generally accepted that Congress can designate the executive branch official
who will have the authority to make appropriate regulatory decisions implementing a statute.3 4 The ultimate responsibility to make
the resulting political choices, therefore, is vested in that official.
Because that person is an officer of the United States, it seems perfectly appropriate for other government officers to communicate
their views on policy and complementary needs to that person or
agency.3 5 Indeed, one scholar argued rather persuasively that the
President has the constitutional right to require agencies, or at least
their leaders, to provide such comments or analyses on pending actions.3 6 The executive orders3 7 requiring an agency to submit proposed rules and agendas, along with supporting justifications, are
appropriate means of executing the President's constitutional
prerogative.38
32. As the Court noted in Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463
U.S. 29 (1983), the term "political" in the regulatory context has several meanings. It can
mean coordinating a number of actions; favoring one criteria over another; and striking a
balance that reconciles many values. Changing circumstances do not always mandate deregulation. Id. at 42. They might require instead revision or extension of current regulation. Id.
Thus, the political choice can be towards the most stringent rule discretion permits, or it can
be in the other direction. The question is how that choice is made, not its nature or whether it
favors one political view or another.
33. See Deregulation HQ: An Interview with Murray L. Weidenbaum andJames C. Miller IIl, 5
REG., Mar.-Apr. 1981, at 16. In this interview, James C. Miller III, the current director of the
Office of Management and Budget (OMB) and the first administrator of the Reagan administration's oversight program, espoused the view that the President had the authority to order
an executive branch agency to change a rule, but not an independent agency. Id.
34. Buckley v. Valeo, 424 U.S. 1, 140-41 (1976) (per curiam). In this case, the Court
held that the performance of a significant governmental duty exercised pursuant to a public
law can be discharged only by an officer of the United States appointed in accordance with the
Appointments Clause of the United States Constitution. U.S. CONST. art. II, § 2, cl. 2. Thus,
presumably Congress could not direct a person in the private sector or a member of Congress, or a judge to exert substantial regulatory authority.
35. See Sierra Club v. Costle, 657 F.2d 298, 322-40 (D.C. Cir. 1981) (noting review and
comment on model rules by interagency working group).
36. See Strauss, supra note 6, at 662-66; see also Strauss & Sunstein, The Role of the President
and OMB in Informal Rulemaking, 38 ADMIN. L. REV. 181, 197 (1986) (quoting U.S. CONST. art.
II, § 2).
37. Exec. Order No. 12,291, 3 C.F.R. 127 (1981), reprintedin 5 U.S.C. § 601 app. at 431
(1982); Exec. Order No. 12,498, 3 C.F.R. 323 (1985).
38. See Strauss & Sunstein, supra note 36, at 206-07 (citing American Bar Association
Resolution that supported principles regarding executive oversight of federal agency
rulemaking).
564
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:557
Although it is often ascribed almost magical powers and accused
of being a superregulatory agency that directs all other agencies, the
Office of Management and Budget (OMB) is just another agency
under this scheme. 39 Consequently, it is appropriate for OMB to
communicate its position to the issuing agency, just as it is appropriate for the State Department to express its opinion on any foreign
policy ramifications of a proposed rule. OMB does not control anything; it lacks the power to direct an agency or an agency head to do
anything. The agency head can accept or reject OMB's sentiments,
or even demands and threats, as he or she sees fit. The agency may
legally publish a rule before OMB completes its review or in spite of
OMB's strident opposition to that rule.
The agency and its head, however, must be aware of the political
consequences of doing so. This is only because OMB is currently a
powerful political force, not because it has the direct power to control rulemaking. Any power it possesses derives from the President
alone. 40 If two governmental agencies disagree over a policy choice,
it is perfectly logical under our constitutional scheme to buck the
controversy to the President for his consideration and policy advice,
if not his final decision. That would seem to be precisely the function of the President's calling for the opinions of his ministers, so he
can then express his policy views to the agency charged with implementing the statute.4 1 Thus, if an agency and OMB disagree on a
policy decision, they should direct the matter to the President for his
42
views.
OMB's current power comes from the faith that the President has
expressed in its determinations. An official's reluctance to take a
39. In 1970, President Nixon established OMB as an executive agency for the exercise of
the President's managerial responsibilities. In 1982, OMB became an office in the executive
office of the President. Reorg. Plan No. 2 of 1970, 35 Fed. Reg. 7959 (1970) (current version
at 31 U.S.C. § 501 (1982)).
40. See 31 U.S.C. § 502 (1982) (stating that OMB director administers office under direction of President).
41. See generally Exec. Order No. 12,291, supranote 37 (codifying President's general view
on discretion to be exercised by agencies).
42. See generally Exec. Order No. 12,291, supra note 37 (directing Task Force on regulatory relief to resolve issues before they reach President). The Order provides that in the
event it disagrees with OMB's perspective, an agency may appeal to the Task Force on Regulatory Relief (Task Force), and if an agency did not get satisfaction there, the Task Force was
directed to present the matter directly to the President for resolution. Thus, the Order itself
provided a means of resolving disagreements between the agencies.
The Task Force, which the Vice President headed, has been disbanded. Although any dissatisfied agency official still could "appeal" an adverse OMB position and thereby set up a
creative tension between the agency and OMB, the explicit provision of an appeal mechanism
would seem more consistent with the theory of White House oversight. OMB is not directing
agency action, but it is providing its comments on the agency's proposal with the ultimate
choice remaining in the agency.
1987]
ExEcUTIvE OVERSIGHT
particular matter to the President is due more to a fear of not prevailing on that issue, rather than any inherent power in OMB. This
was not always the case. For example, President Carter overruled
his regulatory watchdogs and diminished their power accordingly.
In sum, OMB's power extends solely from the President's confidence in OMB's decisions and the likelihood that he will support its
analysis.
Even if the President disagrees with an agency's decision, the
agency head is still free to publish the rule-but again, he or she
must be wary of the political consequences. The officer may be fired
for disregarding the will of the President. 43 The action taken would
remain intact until changed through an appropriate process. It is
likely, however, that an official with a strong political constituency
could survive any threat of removal because the President would
hesitate to sack someone if doing so would cause him considerable
political liability. This political reality protects against the President
directing officials to take action beyond the prevailing political
consensus.
The agency thus would take into account the views of OMB or the
President, but the agency would make the ultimate, final decision.
Again, that decision must be within the range of discretion available
to the agency under the statute and the record. Neither OMB or the
President can change that scope of authority, although both can influence how political choices are made within that range. Does it
really matter whether the agency head made the political choice
based on his or her abstract political belief, experience, cocktail
party chit-chat, or whether the President or his delegate expressed
their preferences? Clearly, the former happens. The result, in
either instance, is a political one within the boundaries of discretion
provided by Congress; the courts, furthermore, are available to exercise the same type of review they would if the agency were the
impregnable black box that some assume and advocate.
43. This clearly is true for officials squarely within the executive branch. The extent that
Congress may condition removal on specific findings or dereliction, and how those findings
may be invoked, will be one of the major issues to be resolved in the next few years.
It bears noting, however, that OMB is not the President and, hence, does not and cannot
wield the only power he has over rulemaking, namely the power of removal. The OMB, therefore, can saber rattle to its heart's delight, but a confident official can call its bluff if he or she
thinks the President either will back the particular decision or not take adverse action. OMB
has often had its way in these matters because the President supports it. To the extent the
President has had his way is indicative of the team that has been appointed; it has not always
been that way.
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IV.
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THE PRESIDENT AND ACCOUNTABILITY
Terms such as "ex parte intervention"
44
or "unfaithful execution
45
of the laws" connote an assumption that the President and the Executive Office of the President occupy a position similar to a stranger on the sidewalk vis-a-vis the agencies. For reasons that appear
to originate with the New Deal's fear of politics contaminating the
purity of technocratic decisionmaking, presidential involvement is,
under this view, seen as a corruption of the process that will inevitably deflect an agency from the "right" result. Given our structure of
government and the nature of the decisions to be made, it is extraordinarily odd to view the President and OMB as interlopers in a
rulemaking process.
First, the Constitution contemplates that the President is entitled
to know what is going on in his government; the President, in turn,
is also entitled to communicate his views on policy matters to the
responsible officials. 4 6 This hardly is interloping. Moreover, even
the cases imposing a "reasoned decisionmaking process" largely
view the agency as a whole and do not differentiate among an
agency's constituent parts. 4 7 Thus, the position of one element of
the staff as opposed to the views of another as opposed to the final
decision emanating from the agency are not considered particularly
relevant in informal rulemaking. Indeed, the Freedom of Information Act (FOIA)48 specifically builds on this notion of a unitary
49
agency and protects internal policy deliberations from disclosure.
The theory, of course, promotes robust policy debate and deliberation in reaching a final decision. Why then is it appropriate to encourage internal debate but to view the President as outside the
discussion? It would be more appropriate to include the President
and other agencies in the decisionmaking process. The President is
the captain and hence should be regarded as part of the team.
Second, there rarely is a singular "right" result when the statute
and the record permit no discretion and dictate one, and only one,
possible regulation. The President and his staff are in the unique
44. See McGarity, PresidentialControl of Regulatory Agency Decisionmaking, 36 AM. U.L. REv.
443, 445-46 (1987) (defining ex parte intervention as any action by President or staff that
directs outcome of agency proceedings).
45. Id. at 454-55 (defining unfaithful execution of laws as pressing agency beyond statutory limits).
46. See Strauss & Sunstein, supra note 36, at 197 n.35 (quoting U.S. CONsT. art. II, § 2);
see also Strauss, supra note 6, at 662-66 (discussing President's constitutional claim to direct
agency judgment).
47. See DeLong, supra note 31, at 49 (discussing agency decisionmaking processes).
48. 5 U.S.C § 552 (1982).
49. See id. § 552(b)(5) (exempting intra-agency and interagency memoranda and letters
from FOIA requirements).
19871
EXECUTIVE OVERSIGHT
567
position of having to consider the duties of the entire federal executive branch and the prevailing political mood while still being loyal
to the underlying legislation. Thus, they are the only ones who can
help shape a unified theory, at least to the extent that the incoherence of legislation permits.
Next, it is critical to note that whatever happens, and whoever
participates, the rule still must be within the confines of discretion
that Congress and the record supply. Applying the test from Citizens
to Preserve Overton Park v. Volpe 5 ° of determining whether an agency
relied on impermissible factors in making its decision is always a
formidable task, 5 ' and the test remains taxing when other agencies
and the President communicate their interests. In both instances,
the court must look at the range of discretion, the explanation of the
decision, and the decision process used in making that decision to
decide whether the final choice is within the zone of reasonableness
provided by the proceeding. The agency still would have to explain
and justify the political decision on the basis of the statute and record. Whether the agency agrees, in whole or in part, with the President or his staff is neither interesting nor relevant. But, if Overton
Park's impermissible factors creep into the decision, and the test to
determine whether or not they have would be precisely the same
with or without White House involvement, the decision would be
reversed. If, for example, an agency were to take regulatory action
solely to favor a narrow political interest but beyond the prescripts
of the statute, the action would likely be reversed. Of course, such
political balancing does go on in response to both presidential and
congressional importunings, but if the agency is to be sustained, it
52
must ground the decision in the statute and the record.
Who cares how a political decision is made as long as it is within
the range of discretion? There surely is no more reason to distrust
the President and his staff than the bureaucrats with life tenure.
Surely, some of the concern over presidential involvement is that an
agency often develops an allegiance to a particular cause-as the
parlance has it, they are "captured"-and hence, those who favor
that posture are likely to prevail more by having the agency decide
alone than by having anyone with a broader or different perspective
50. 401 U.S. 402 (1971).
51. This test is particularly formidable because a court must consider what the administrator was thinking when he or she made the decision. Id. at 420. Furthermore, the court may
require the administrator to testify and to explain such action in light of the record and the
statute he or she is required to enforce. Id.
52. See Sierra Club v. Costle, 657 F.2d 298, 392 (D.C. Cir. 1981); Ackerman & Hassler,
Beyond the New DeaL" Coal and the Clean Air Act, 89 YALE LJ. 1466, 1563-66 (1980).
568
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participate in the decision. Those who advocate this position attempt to gain more by the decisional process than Congress substantively provided in the statute. After all, Congress, not the
President, controls the range of discretion. Furthermore, lest anyone continue to think that White House involvement always favors a
reduction in regulation or an excessive concern with the costs of
health, safety, and environmental regulation, it bears repeating that
oversight can cut both ways: towards more or less stringency, depending on the country's prevailing political mood.
Another argument sometimes used against White House oversight is that it dilutes accountability for regulatory decisions. 53 The
argument is not only misplaced, but backwards. All regulatory decisions, at least those made by agencies whose top officials the President may remove, should be imputed to the President and his team.
Thus, far from diminishing responsibility, encouraging the President to communicate his views confirms that the President is responsible for the people making those decisions and that he should
be blessed or blamed for them. We vote for presidents, not secretaries or administrators. The President, therefore, should rise or
fall on the wisdom of the rules. White House oversight places accountability precisely where it should be, namely, where the electorate can do something about it. Moreover, an administrator who
disagrees with a White House policy perspective can still oppose any
directive publicly or privately and thereby set up a conflict that will
call for a political appraisal and judgment.
Professor Bruff, on the other hand, is concerned about diminishing the bureaucratic power that flows from both the regulatory
agendas and other methods of informing the agency head as to the
actions of the agency as a whole. 54 Not surprisingly, that was exactly
the intention behind the requirement. Too often an agency head is
presented with a final package after the agency devoted substantial
resources to its development. As a practical matter, it may be too
late at that point to influence the direction and theory of the proposed action. Because the administrator does not want to scrap the
investment nor wait for the desired changes to be made, he or she
becomes a captive of the staff.
No one should be threatened by informing those charged with the
execution of the statute as to how the agency and its staff plan to
implement it. Not even Congress places the power of decision in
the lifers. The threat of having to justify their decisions to the
53.
54.
See generally Bruff, supra note 1, at 491-92.
Bruff, supra note 1, at 515.
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agency head, and subsequently to OMB, can have the remarkably
therapeutic effect of forcing those on the line to consider alternative
approaches and to consider whether the proposed action is an appropriate means of executing the statute. Anyone who has attended
planning meetings can attest to that. 55
Nor should we assume that the bureaucrats have a clearer, more
accurate view of the world because they reflect a predictable, designated bias that is more pristine than dirty old politics. This simplistic view of administration died a generation ago in favor of a far
56
more complex theory. In this theory there is a continuing tension
between the technocrats who develop the record and the alternative
approaches, and the political appointees who resolved issues within
the resulting range of discretion. It is a mistake even to attempt to
take the politics out of rulemaking because it is an inevitable
component.
V.
THE
ROLE OF CONGRESS
Much of the handwringing over White House oversight is generated by two concerns: (1) that Congress is not able to oversee or
control the process; and, (2) that the President's talking with his colleagues somehow ousts Congress of its due. This view is inaccurate
and, to the extent it has any merit, is the product of a self-inflicted
wound.
First, and foremost, Congress defines the scope of discretion. If
Congress decides a matter, there is no room for presidential meddling. When there is choice, and there usually is because Congress
lacks both the facts and the ability to adapt as times change, there is
discretion, and discretion is politics. Politics is clearly the President's strong suit and constitutional role. Because we elect presidents and not administrators, the national will should be reflected,
by means of advising agency heads with respect to the exercise of
discretion. Congress retains all of its authority to set policy through
legislation.
The administrative process and the courts enforce fidelity to the
national will. If OMB or the White House overreaches, a court can
55. One particular meeting vividly stands out in my mind. An agency's regulatory staff
was deliberating on a new requirement that would have been quite costly to implement. They
were confident that senior agency officials would approve their proposal quickly. They then
turned to consider how they would explain the duties to OMB. They were concerned that
OMB would challenge them closely. That led the staff to consider whether there were alternative, less intrusive ways of achieving the same end. In a very short time, they developed a new
way to achieve almost the same results with virtually no marginal cost.
56. See Strauss & Sunstein, supra note 36, at 183 (noting tension between technical exper-
tise and political value judgments).
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and should intervene by ordering adherence to the law. Because
such intervention has not occurred often under a decade of experience with the executive orders, it appears that the problem of overreaching has not been as great as sometimes alleged.
Second, because Congress is not able to make those policy decisions and has to impose catchy procedures on itself to get things
done reflects the state of disorder in Congress, and perhaps in national politics. That disorder defines a range of discretion. The
compromises that result in legislation capture the outer boundaries
of the prevailing consensus, and the resulting area within that consensus remains as discretion.
Third, congressional action usually is sensitive to narrow interests, and some member of Congress will see it as in his or her interest to pursue a matter of concern to a particular interest. The
congressional committee structure virtually guarantees that Congress will be a powerful counterbalance through embarrassment and
grandstanding at hearings and through casework. Enough pressure
on an administrator can establish the creative tension to resolve the
issues and to continue with the regulation.
The concern for agency actions that remain concealed because of
OMB oversight seems quite real: agency officials talk about incessant delays over anything other than trivial rules. Those who are
solicitous of the congressional role extrapolate this into a diminution of congressional power because they cannot oversee something
that has not happened. Virtually anything that has been kicking
around an agency long enough to result in a proposed rule being
submitted to OMB is almost always public knowledge. That, in
turn, leads directly to the potential for congressional oversight and
pressure for appropriate action. If it does not happen, it just may be
that not enough members of Congress share a member's concern
with the subject matter. That would indicate that, all things considered, the action being taken in the executive branch is within the
prevailing political mood.
CONCLUSION
Presidential oversight not only is fully consistent with our constitutional structure, but it also serves a valuable function in the regulatory state. It broadens what may be an unduly parochial approach
by an agency and helps the agency take other values into account
when reaching important decisions. Oversight also serves as a form
of quality control that previously reverted by default to the courts.
To the extent that an agency can sense problems before a rule is
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issued, that agency can correct such problems more quickly and
more efficiently than would result from a court having to reverse
and remand. Presidential oversight is a means of incorporating the
prevailing political climate into an agency's discretion while maintaining allegiance to the relevant factors defined in the legislation.
The many sins often alleged to stem from the exercise of such
oversight are largely overstated. Executive oversight does not oust
Congress of its role; Congress remains free to define the range of
available discretion. Nor is there any particular reason to believe
that the sentiment coming from review will be any less meritorious
than those of the bureaucrats within an agency.
The real concern seems to be whether the process is working.
Agency officials are following the "advice" that OMB has been providing and have not raised a major political ruckus by disagreeing
either publicly or, for all we know, privately by objecting within the
White House power structure. The complaint, therefore, seems to
be that the Reagan administration has appointed people who view
themselves as part of a team. One may not like the resulting policies, but that should not implicate the legal theory.
If, on the other hand, OMB becomes too rambunctious and tries
to substitute its judgment on too many details, it will only generate
countervailing political pressure that can unravel what is and can be
a beneficial program. Thus, as in most of politics, moderation and
temperance in the exercise of power is critical for its endurance.