Article by Lloyd N. Cutler
In recent years, Presidents and their Executive Office staffs have often intervened in regulatory rulemaking proceedings of departments and agencies within the executive branch. Their main focus has been on health and safety regulations, which have the potential for imposing large costs on various sectors of the national economy. This potential requires that a balance be struck between health and safety goals and national economic goals, such as full employment, stable prices, and an adequate energy supply. Presidents have intervened to persuade the health and safety agencies to strike such a balance. As the degree of intervention has grown, so has the debate about its propriety and limits.
Presidents Ford and Carter issued executive orders establishing procedural requirements, applicable to all executive branch agencies, to ensure that rulemakings reflected full consideration of important national economic goals and of the relative cost-effectiveness of various regulatory alternatives. President Reagan has imposed more stringent controls in Executive Order 12,291, which requires executive branch agencies to assess major proposed rules and to reconsider existing major rules in order to ensure that regulatory decisions reflect, to the extent permitted by applicable law, a full analysis of the costs and potential consequences of regulatory action. Compliance with the Order is monitored by the Director of the Office of Management and Budget (OMB) subject to policy guidance by a Presidential Task Force on Regulatory Relief chaired by the Vice President. All final major rules must be submitted to the OMB ten days before they are issued. Through these executive orders, as well as through ad hoc intervention, the White House has also become involved in the substance of regulatory policymaking itself.
The current trend toward presidential intervention in the regulatory rulemaking process has raised two issues. One is the legal power of the President to intervene in a substantive fashion in a rulemaking decision committed by statute to a department or agency head, even within the executive branch. The other is procedural—whether rulemaking proceedings are fatally tainted if the contacts between decisionmaking officials and the President or his staff, or between interested private parties and the President or his staff, are "ex parte" (i.e., off-the-record).
In Sierra Club v. Costle, the District of Columbia Circuit rejected a claim that the Environmental Protection Agency's rule setting ceilings for emissions of sulfur dioxide from new coal-fired electric power plants was invalid because of presidential intervention in the rulemaking process. The court held that neither the Clean Air Act nor due process precludes presidential involvement or requires that meetings between the agency head and the President be put into the record of a rulemaking proceeding, unless the meetings transmitted material information or data upon which EPA relied to support its action.
Sierra Club should resolve much of the controversy about the substance and procedure of White House intervention in the informal rulemaking process. Until the Supreme Court and Congress have addressed the issues more fully, however, the debate is likely to continue. The purpose of this article is to place that debate in its appropriate legal and political perspective. I mean "political" in the highest sense of that term--the process of compromise and choice by which government allocates resources, accommodates competing interests, and resolves conflicts.
Once the vital role of politics in the administrative process is understood, the necessary and proper role of the President can be more readily defined. So can the need to avoid fettering the process of presidential involvement by a series of procedural rules that make it impracticable for the President and his staff to perform their balancing function. This does not mean that the procedures followed should be beyond congressional or judicial supervision, but only that the degree of such supervision should not go beyond what is necessary to assure the level of fairness and due process that is appropriate in the political context of regulatory rulemaking.
About the Author
Lloyd N. Cutler. Member of the District of Columbia and New York Bars.
Citation
56 Tul. L. Rev. 830 (1982)