Presidents’ supervisory control over administrative actions

1. Presidents’ supervisory control over administrative actions • To what extent does the President have the authority over the day-to-day decision-making of the administrative apparatus? • That is, what control does he have over NOT just appointments and removals BUT actual decisions that agency officials make? • Kagan notes that Presidents have faced problems in attempting to control the bureaucracy – why might that be the case?

2. Two schools re Legal Sources of executive control over administrative apparatus • Unitary Executive: President has exclusive control over the administrative machinery, even discretionary decisions. • Article II, § 2, cl. 2 – Presidential appointment with A/C of Senate. • Article II, § 2, cl. 1- President can require opinions of principal Officers re their duties • Article II, § 1, cl.1 – Executive power vested in President • Myers/Morrison gives President unlimited authority to remove certain purely executive Officers & PCAOB says President can’t be stripped completely of oversight • Congressional Vesting: Congress can vest discretionary authority in subordinate officers and insulate their decisions from direct presidential control. • Article I, Section 8, cl. 18 allows Congress to delegate legislative power to specific people as necessary & proper • Myers: some executive actions can be insulated from executive interference even if official can later be removed • Kendall (1838) – Statute that did not make the Postmaster the President’s subordinate did not give President exclusive, inherent authority over him

3. Implications of the two theories (in brief): • Congress vests decision-making authority re whether milk subsidies are appropriate in Sec’y of Ag. What happens if Sec’y makes a decision the President doesn’t like re those subsidies? • Unitary Executive • President can arguably execute the policy himself or have another official do it. Has the authority to immediately countermand contrary actions by the offending official. • What if President orders Sec’y to do something in direct contravention of statue (e.g., ignore geographic considerations). • Congressional Vesting • President’s only option is to remove (i.e., fire) the offending official. Since that official is the person in whom discretionary authority is vested. All decisions remain in place until a new officer has been appointed.

4. What are advantages of each approach to supervision (or Disadvantages of the other)? • Unitary Executive • Congressional Vesting

5. OMB & OIRA • Office of Mgmt & Budget (OMB) sits within the Executive Office of the President. Staff advises senior White House officials on, among other things, regulatory matters. Staff is charged with monitoring agencies’ adherence to presidential policies. Staff consists of political appointees and career civil servants. • Office of Information & Regulatory Affairs (OIRA) – is located within OMB (also staffed by political appointees/career civil servants). • Charged with developing and overseeing administration policies about statistical policy, info technology, privacy, and data quality; • Reviewing collections of information under Paperwork Reduction Act • Reviewing Draft Regulations under E.O. 12866 (and later E.O.’s) for adherence to presidential regulatory policy. http://www.whitehouse.gov/sites/default/files/omb/assets/about_omb/omb_org_chart.pdf

6. Evolution of Presidential Administration – Beginning in the Reagan Era • E.O. 12,291 (Reagan) – required executive agencies to submit proposed major rules to OIRA/OMB for pre-publication review with regulatory impact analysis • Included a requirement of CBA re proposed rule • President (thru OIRA) can review and send back rules that don’t comply with his agenda or meet his adequate CBA • E.O. 12,866 (Clinton) – continued Reagan order, including proposed rules review and CBA in modified form • Extended to independent agencies • Extended impact analysis to environment/health & safety, etc. • E.O. 13,422 (Bush II) – continued basic framework of earlier orders. • Required each agency’s Regulatory Policy Officer (RPO) to be presidential appointee • all proposed rulemakings must be coordinated thru RPO Rescinded by Obama Administration – E.O. 13,497

7. OMB/OIRA oversight • Is this kind of rulemaking oversight constitutionally problematic? • Why might president’s want to coordinate rulemaking oversight in a single agency?