57 Pages Posted: 12 Sep 2009
Scholars and courts have been divided on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the president can supervise administrative agencies is key to arguing that agency action is legitimate, because the president’s accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimize, an agency action. The reality is that presidential supervision of agency rule making, at least, appears to be both significant and opaque. This paper presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House’s Office of Management and Budget is associated with high levels of changes in agency rules. Further, the paper documents the comparative silence regarding the effect of that supervision. Neither OMB nor the agencies generally report the content of supervision by presidential offices; nor do they report whether a particular agency decision is consistent with presidential preferences. Silence about content, the paper suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state. The paper then argues for greater transparency. Agencies should be required to summarize executive influence on significant rule making decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to “political reasons” in reviewing a particular agency action. Finally the paper suggests that some, but not all, “political reasons” for agency action are legitimate, but that only a more transparent system - by facilitating public dialogue and accountability to Congress - can fully resolve the question of which reasons are legitimate and which are not.
Suggested Citation: Suggested Citation
Mendelson, Nina A., Disclosing 'Political' Oversight of Agency Decision Making. Michigan Law Review, Vol. 108, 2010; University of Michigan Public Law Working Paper No. 158. Available at SSRN: https://ssrn.com/abstract=1470850