Overseer, or "the decider"? The president in administrative law

George Washington Law Review

Volumn 75, Issue 4, 2007, Pages 696-760

  Strauss, Peter L ^a  

^a Och Spine at New York Presbyterian Hospitals

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EID: 34548677753     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (326)

1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring).
2. The contrast often given in the literature is between the advice of Attorney General Wirt to President Monroe and the advice of Attorney General Cushing to President Pierce. Attorney General Wirt advised that the President's role is to give "general superintendence" to those to whom Congress had assigned executive duties, as it could never have been the intention of the constitution . . . that he should in person execute the laws himself. . . . [W]ere the President to perform [a statutory duty assigned to another], he would not only be not taking care that the laws were faithfully executed, but he would be violating them himself. The President and Accounting Officers, 1 Op. Att'y Gen. 624, 625 (1823). Attorney General Cushing advised that "no Head of Department can lawfully perform an official act against the will of the President," as a contrary view would permit Congress so to "divide and transfer the executive power as utterly to subvert the Government," albeit that "all the ordinary business of administration" is, in statutory terms, placed under the authority of the Department, not the President, and "may be performed by its Head, without the special direction or appearance of the President." Relation of the President to the Executive Departments, 7 Op. Att'y Gen. 453, 469-71 (1855). These opinions, with helpful commentary, may be found in H. JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL 29-34, 131-48 (1999);
3. the story is also told in HAROLD H. BRUFF, BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE ADMINISTRATIVE STATE 456-59 (2006).
4. CONSTITUTION CONFERS DECISIONAL AUTHORITY: see, for example, Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 549-50 (1994);
5. Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601, 730 (2005). CONSTITUTION DOES NOT CONFER DECISIONAL AUTHORITY, BUT IT SHOULD BE PRESUMED CONGRESS INTENDS IT, GIVEN THE REALITIES OF MODERN ADMINISTRATION: see, for example, Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2251 (2001);
6. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 2-3 (1994).
7. PRESIDENT, UNLESS DIRECTLY AUTHORIZED, IS ONLY AN OVERSEER: see, for example, Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 987-89 (1997);
8. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 267 (2006);
9. Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965, 984-86 (1997).
10. BRUFF, supra note 2, at 455-59.
11. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 47-52 (2006).
12. The Yale Law Journal recently hosted a symposium issue on the question of executive authority generally that did not focus on the questions under discussion here. Symposium, The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power, 115 YALE L.J. 2218 (2006). A notable exception was an essay by Professor Cass Sunstein arguing that the President's participation in law interpretation gave the Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), special force.
13. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2587-89 (2006).
14. Some of my arguments here appeared informally in a debate with Professor Sunstein in the Yale Law Journal's Pocket Part. Peter L. Strauss, Within Marbury: The Importance of Judicial Limits on the Executive's Power to Say What the Law Is, 116 YALE LJ. POCKET PART 59 (2006), http://www.thepocketpart.org/2006/09/27/strauss.html;
15. Cass R. Sunstein, The Virtues of Simplicity, 116 YALE L.J. POCKET PART 70 (2006), http://www.thepocketpart.org/2006/ 09/27/strauss.html;
16. Peter L. Strauss, Exploiting Simplicity, 116 YALE L.J. POCKET PART 77 (2006), http://www.thepocketpart.org/2006/09/ 27/strauss.html;
17. Cass R. Sunstein, Costing Mead, 116 YALE L.J. POCKET PART 79 (2006), http://www.thepocketpart.org/2006/09/ 27/strauss.html;
18. Peter L. Strauss, The Virtue of Checks, 116 YALE L.J. POCKET PART 81 (2006), http://www.thepocketpart.org/2006/09/ 27/strauss.html. It is not hard to draw from the Journal issue generally the conclusion that a strong unitary executive is far from a necessary condition of effective governance, and often enough a threat to democratic values.
19. E.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) ("[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.");
20. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) ("The court is not empowered to substitute its judgment for that of the agency.").
21. Thanks to my colleague Avery Katz for suggesting this argument.
22. This was the burden of the well-publicized memorandum written by Justice Alito as a young attorney in the Office of Legal Counsel in the first years of the Reagan administration. Memorandum from Samuel A. Alito, Jr., Deputy Ass't Att'y Gen., Office of Legal Counsel, to The Litig. Strategy Working Group (Feb. 5, 1986) (citing the need to reassert presidential authority as its raison d'être), available at http://www.archives.gov/news/samuel-alito/ accession-060-89-269/Acc060-89-269-box6-SG-LSWG-AlitotoLSWG-Feb1986.pdf;
23. see also JAMES MANN, RISE OF THE VULCANS: THE HISTORY OF BUSH'S WAR CABINET (2004).
24. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
25. Uniform Code of Military Justice, 10 U.S.C. §§ 801-946 (2000).
26. Hamdan, 126 S. Ct. at 2786-98;
27. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
28. Gonzales v. Oregon, 126 S. Ct. 904 (2006). The reader is entitled to know that I appeared as an amicus curiae supporting Oregon in this case.
29. Controlled Substances Act, 21 U.S.C. §§ 801-904 (2000).
30. Oregon Death With Dignity ACT, OR. REV. STAT. § 127.800-.995 (2005).
31. Gonzales, 126 S. Ct. at 939 (Scalia, J., dissenting). Chief Justice Roberts and Justice Thomas joined Justice Scalia's dissent.
32. See infra note 62 and accompanying text.
33. See infra notes 113-15 and accompanying text.
34. Am. Bar Ass'n Task Force on Presidential Signing Statements & the Separation of Powers Doctrine, Recommendation (adopted by the ABA House of Delegates Aug. 7-8, 2006), available at http://www.abanet.org/leadership/ 2006/annual/dailyjournal/20060823144113.pdf.
35. The debates find full expression in a forthcoming symposium issue of the William & Mary Bill of Rights Journal. Symposium, The Last Word? The Constitutional Implications of Presidential Signing Statements, 16 WM. & MARY BILL RTS. J. 1 (2007), details at http://www.wm.edu/law/publications/wmborj/Symposium07.shtml.
36. Trevor Morrison suggests, for example, that a signing statement may represent an attempt on the part of an administration to effect a "unilateral alteration of the legislative bargain." Trevor Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1249 (2006). In effect, Professor Morrison notes, where the President objects to the substance of a proposed bill but fears the political consequences of a veto-due either to lack of popular support or likely congressional override, or both - he may sign the bill into law, but use a signing statement to invoke constitutional concerns with potential future applications and effectively "read an implicit exception" into the law. Id. at 1248. See generally id. at 1245-50.
37. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007).
38. Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C § 601 (2000).
39. Exec. Order No. 13,422 § 5(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007).
40. Exec. Order No. 13,422 § 4(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007).
41. Compare Exec. Order No. 13,422 § 5(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007), with Exec. Order No. 12,866 § 6(a)(2), 58 Fed. Reg. 51,735, 51,740 (Sept. 30, 1993).
42. Compare Exec. Order No. 13,422 § 4(b), 72 Fed. Reg. 2763, 2764 (Jan. 18, 2007), with Exec. Order No. 12,866 § 4(c)(1), 58 Fed. Reg. 51,735, 51,738 (Sept. 30, 1993).
43. See generally Strauss, Presidential Rulemaking, supra note 3. Dean Kagan of Harvard Law School subsequently confirmed, and celebrated, this phenomenon. See Kagan, supra note 3. But cf. Bressman & Vandenbergh, supra note 5 (taking a more critical view of the benefits of presidential control);
44. Robert Pear, Bush Accepts Rules to Protect Privacy of Medical Records, N.Y. TIMES, Apr. 13, 2001, at A1.
45. See, e.g., Anthony Shadid, U.S. Bolsters the Power of Patients to Guard Privacy of Personal Data, BOSTON GLOBE, Apr. 13, 2001, at A3 (quoting Secretary of Health and Human Services Tommy Thompson, who, on announcing the promulgation of medical privacy rules, "said the president had decided it was 'time to act'" (emphasis added)).
46. See Kagan, supra note 3;
47. Lessig & Sunstein, supra note 3.
48. BRUFF, supra note 2.
49. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256 (2006).
50. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263 (2006);
51. see also Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2074-75 (2005) (arguing against the notion that control of the administrative apparatus by elected officials such as the President is the only way to ensure that agencies are held accountable to the public for their actions).
52. U.S. CONST, art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America.").
53. See Notes of James Madison on the Federal Convention (June 1, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1911), at 65-66 (describing the debate in the Convention as to whether there should be a single or collegial executive);
54. id. at 88-89 (notes of June 2, 1787 on the same);
55. id. at 96-97 (notes of June 4, 1787 on the same);
56. see also Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 599-602 (1984).
57. See, e.g., Calabresi & Prakash, supra note 3, at 549-50;
58. Yoo, Calabresi & Colangelo, supra note 3, at 730.
59. Article I, Section 8, Clause 18 confers on Congress the authority to "make all Laws which shall be necessary and proper for carrying into Execution ... all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," and Article II, Section 2, Clause 1 provides that the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices" (emphases added).
60. U.S. CONST, art. II, § 2, cl. 1 (President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices" (emphasis added)).
61. U.S. CONST, art. II, § 3, cl. 3 (emphasis added).
62. See supra note 2 and accompanying text.
63. EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1957, at 80-81 (4th rev. ed. 1957) (quoting the opinion cited supra note 2).
64. E.g., Strauss, The Place of Agencies in Government, supra note 35;
65. Strauss, Presidential Rulemaking, supra note 3.
66. THE FEDERALIST NO. 37, at 6 (James Madison) (J. & A. M'Lean eds., 1788).
67. THE FEDERALIST NO. 82, at 606 (Alexander Hamilton) (John Hamilton ed., 1866).
68. See supra note 2.
69. The Jewels of the Princess of Orange, 2 Op. Att'y Gen. 482, 489 (1831). To similar effect, Taney would shortly issue an opinion treating the statutes conferring authority on accounting officers in the Treasury Department as making their decision controlling, subject only to the President's removal power. Accounts and Accounting Officers, 2 Op. Att'y Gen. 507, 509 (1832);
70. see also LEONARD D. WHITE, THE JACKSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1829-1861, at 167-69 (1954) (describing this incident).
71. WHITE, supra note 46, at 34-35.
72. Act of Apr. 10, 1816, ch. 44, § 16, 3 Stat. 274.
73. WHITE, supra note 46, at 34-35.
74. Id. at 37.
75. Id.
76. Id. at 44, 110.
77. Id. at 110.
78. Id.
79. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
80. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 399 (1998) (citing 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 759 (rev. ed. 1926));
81. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 345 n.159 (1994).
82. White's account reveals in detail Jackson's acceptance of the proposition that his control lay only over the officeholder and was not a power of decision. WHITE, supra note 46, at 35-39. Not long after Taney became Chief Justice, the Supreme Court would decide Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838), in which it would remark that [t]he executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cannot be claimed by the President. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Id. at 610. While Chief Justice Taney dissented from the opinion, he did so only on the basis of a statutory question not related to this passage. Id. at 626-41 (Taney, C.J., dissenting).
83. In their vigorous account of the same events, in the first installment of their four-part series, Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 CASE W. RES. L. REV. 1451, 1537 (1997), Professors Yoo and Calabresi appear to elide the distinction between presidential authority oneself to take a decision assigned to another, and presidential authority to remove an officer who would not effectuate a desired policy, a distinction that all participants in the events, including Taney, acknowledged and respected. Cf. supra note 47.
84. ROBERT JACKSON, THAT MAN 116-17 (John Q. Barrett ed., 2003).
85. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
86. Id. at 587.
87. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
88. Id. at 166. The full passage makes the limited target of Marshall's invocation of "discretion" the more evident: [The Secretary of State, in administering foreign affairs] is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to [direct] . . . that officer . . . peremptorily to perform certain acts [on which individual rights turn] . . . he is so far the officer of the law . . . and cannot at his discretion sport away the vested rights of others. . . . [W]here the heads of departments are . . . to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. . . . . . . The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. Id. at 166, 170.
89. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
90. Myers v. United States, 272 U.S. 52 (1926).
91. Id. at 135.
92. "[G]eneral administrative control" (emphasis added) need not connote a right to substitute decision; similarly, the phrase "supervise and guide" suggests a role conceived as oversight, rather than direct responsibility to direct, command or decide. The Court had no need to decide the question, given the context in which it was acting.
93. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935).
94. Morrison v. Olson, 487 U.S. 654, 686 (1988) ("[T]he essence of the decision in Myers was that the Constitution prevents Congress from drawing to itself the power to remove or the right to participate in the exercise of that power." (internal quotations and alterations omitted)).
95. Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993).
96. Id. at 1537 n.1, 1538.
97. Id. at 1540 n.14.
98. See id. at 1541 ("Because Committee decisions are adjudicatory in nature, are required to be on the record, and are made after an opportunity for an agency, we conclude that the APA's ex parte communication prohibition is applicable.");
99. id. at 1546 (holding that "the President and his staff are covered by [the APA's prohibition] and are not free to attempt to influence the decision-making processes of the Committee through ex parte communications" ).
100. To similar effect, see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954) (holding that where the Attorney General had created a procedure by regulation, he could not dictate a particular decision even to individuals he had appointed, who served at his will and whose judgments were subject to his ultimate review).
101. See generally Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569 (2006).
102. E.g., Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring) ("Congress has been willing to delegate its legislative powers broadly-and courts have upheld such delegation-because there is court review to assure that the agency exercises the delegated power within statutory limits . . . .").
103. Hazardous Waste Treatment Council v. EPA, 886 F.2d 355 (D.C. Cir. 1989).
104. Id. at 358-59.
105. Id. at 365 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
106. Id. at 375 (Silberman, J., concurring). To similar effect, see D.C. Federation of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1245-46 (D.C. Cir. 1971) (decrying the "extraneous pressure" from members of Congress that "intruded into the calculus of considerations" affecting the Secretary of Transportation's decision to approve a bridge project, and remanding the case to the Secretary to "make new determinations . . . completely without regard to any considerations not made relevant by Congress in the applicable statutes"), and Pillsbury Co. v. FTC, 354 F.2d 952, 956-64 (5th Cir. 1966) (vacating a divestiture order of the Federal Trade Commission due to Senate subcommittee hectoring of a prior Chairman of the FTC about the FTC's decision at an earlier stage in its consideration of the case).
107. Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981). David C. Vladeck, Delay, Unreasonable Intervention: The Battle to Force Regulation of Ethylene Oxide, in ADMINISTRATIVE LAW STORIES 191, 219-26 (Peter L. Strauss ed., 2006), further illustrates the proposition with Public Citizen v. Mineta, 340 F.3d 39 (2d Cir. 2003) (changes in proposed regulation prompted by OMB render it arbitrary and capricious) and Public Citizen v. Federal Motor Carrier Safety Ass'n, 374 F.3d 1029 (D.C. Cir. 2004) (same), as well as the litigation that was the principal subject of his essay, Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986).
108. Sierra Club, 657 F.2d at 408.
109. See supra text accompanying note 50.
110. This is, of course, the age-old metaphor; today, "a government of laws and not of men and women."
111. See, e.g., supra note 57.
112. CORWIN, supra note 41, at 80.
113. Todd D. Rakoff, The Shape of the Law in the American Administrative State, 11 TEL AVIV U. STUD. L. 9, 22-24 (1992).
114. id. at 22.
115. For example, FDR's experience with Secretary Ickes, supra note 58;
116. and consider the following from Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963, 994-95 (2001) (citing DAVID KESSLER, A QUESTION OF INTENT: A GREAT AMERICAN BATTLE WITH A DEADLY INDUSTRY 56-57, 67-71 (2001)) (internal citations omitted): President George H. W. Bush became directly involved in a few regulatory decisions, including a dispute over Food and Drug Administration (FDA) regulations to implement the Nutrition Labeling and Education Act of 1990. David Kessler, the commissioner of the FDA, has described how OMB (with the support of the Department of Agriculture) tried to require the FDA to modify its proposed food labeling regulations to mollify the meat industry, which wanted to obscure information about the fat content of foods. At a White House meeting, Health and Human Services Secretary Louis Sullivan showed the president a McDonald's restaurant tray liner that contained nutritional information consistent with the FDA's approach. Sullivan argued that the FDA could not adopt the meat industry's proposal because it was not supported by the rulemaking record. This reportedly surprised President Bush, who stated: "I'm a little puzzled. I'm being told that I can't just make a decision and have it promptly executed, that the Department can't just salute smartly and go execute whatever decision I make. Why is that?" Kessler reports that he and Sullivan were prepared to resign if the White House ordered the FDA to issue the rules sought by the meat industry. Instead, to their surprise, the president directed that the regulations preferred by the FDA be promulgated, though he did not accept the FDA's proposal to apply them to restaurants. This appears to be an example of the president's dictating a decision to an agency head. However, because he chose the decision generally favored by the agency, the agency head accepted the decision and did not resign in protest.
117. Bressman & Vandenbergh, supra note 5, at 49-50, 68.
118. BRUFF, supra note 2.
119. Congress's authority runs to creation of the civil service-including senior civil service positions with significant policy responsibilities. See Freytag v. Comm'r, 501 U.S. 868, 877-78 (1991);
120. see also infra note 124.
121. See supra text following note 65.
122. E.g., Wiener v. United States, 357 U.S. 349 (1958).
123. This seems a necessary proposition, albeit one both inconsistent with and explicitly reserved by the Supreme Court's troubling decision in Freytag, 501 U.S. at 887 n.4.
124. See infra text accompanying note 124.
125. Humphrey's Ex'r v. United States, 295 U.S. 602, 629 (1935).
126. The Civil War test came with the Tenure in Office Act, that came within one vote of producing the impeachment of President Andrew Johnson - a near miss doubtless helping to motivate the subsequent Supreme Court decision in Myers. See Bowsher v. Synar, 478 U.S. 714, 762 (1986) (White, J., dissenting) ("[T]here are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President.").
127. See Morrison v. Olson, 487 U.S. 654 (1988);
128. see also Charles Tiefer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B.U. L. REV. 59, 62-64 (1983).
129. See generally Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275 (1989).
130. United States v. Nixon, 418 U.S. 683, 694-96 (1974) (noting, of a regulation giving the Special Prosecutor the power to contest the invocation of executive privilege, that "[s]o long as this regulation remains in force the Executive Branch is bound by it");
131. see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954);
132. In re Sealed Case, 829 F.2d 50, 57 (D.C. Cir. 1987);
133. Nader v. Bork, 366 F. Supp. 104, 108 (D.D.C. 1973).
134. See generally Strauss, The Place of Agencies in Government, supra note 35. Correspondence with my friend and former colleague John Manning generated the following passage, on which I believe we both agree: What constitutes insubordination of an IRC officer, a necessarily satisfactory element of "cause" in my judgment, is a nice question I hope never to see resolved. But I suppose if the President asserted he had cause to fire Commissioner Jones because she did not accept his direction to interpret a statute as not reaching X, a court should uphold him if it agreed that X was not an available meaning; but if X was an available but not necessary meaning (i.e., a Chevron-qualifying meaning) it should say that the President did NOT have cause, because Congress had delegated that issue to the Commissioner, not to him. In either case, we have a judicial check on Congress's assignment of responsibility-in the first, reinforcing the President in "taking care" that the Commissioner does not overstep the bounds of her delegated authority; in the second, protecting that authority from displacement by him. E-mail from Peter Strauss to John F. Manning, Professor of Law, Harvard Law School (Dec. 14, 2006, 05:03 EST) (on file with the author).
135. Morrison, 487 U.S. at 692-93. That history might have persuaded one that proper application of this test should have produced a different result in Morrison, as Justice Scalia argued so forcefully in his dissent from that decision, see id. at 705-10 (Scalia, J., dissenting), should not obscure its holding that the possibility of effective oversight is the proper constitutional test, 101 U.S. CONST, art. II, § 2, cl. 1.
136. See Strauss, The Place of Agencies in Government, supra note 35.
137. See id.; Bressman & Vandenbergh, supra note 5, at 49.
138. Exec. Order No. 12,146, 3 C.F.R. 409 (1979), reprinted as amended in 28 U.S.C. § 509 (2000);
139. see infra note 195 and accompanying text.
140. This obligation, readily traced back into the Nixon administration if not before, became prominent in the Reagan administration with the adoption of Executive Order 12,291, 3 C.F.R. 127 (1982), reprinted as amended in 5 U.S.C. § 601 (2000), to replace President Carter's more limited Executive Order 12,044, 43 Fed. Reg. 12,661 (Mar. 23, 1978);
141. it was subsequently strengthened by President Clinton in Executive Order 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 (2000), and slightly amended by President George W. Bush in Executive Order 13,258, 3 C.F.R. 204 (2003).
142. Kagan, supra note 3.
143. On October 9, 2006 (that is, before the recent election put Congress into Democratic party control, and during a period of remarkable Republican party discipline), Christopher S. Kelley - a political scientist who has given much of his career to observing the use of signing statements-reported that President Bush had passed the 1000 mark in statutory sections challenged, a frequency well beyond that of any of his predecessors. Posting of Christopher Kelley to Media Watch, http://www.users.muohio.edu/kelleycs/ 2006_10_01_medihistory.html (Oct. 9, 2006, 22:28 EST).
144. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007);
145. see supra text accompanying note 22.
146. See supra note 105.
147. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT, (forthcoming 2007).
148. Kagan, supra note 3, at 2290-99.
149. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring).
150. Department of Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, § 611(11), 120 Stat. 1355, 1397 (2006) (to be codified at 6 U.S.C. § 313(c)(2)).
151. Postal Accountability and Enhancement Act of 2006, Pub. L. No. 109-435, 120 Stat. 3198.
152. Statement on Signing the Department of Homeland Security Appropriations Act, 2007, 42 WEEKLY COMP. PRES. DOC. 1742, 1743 (Oct. 4, 2006);
153. Statement on Signing H.R. 6407, the "Postal Accountability and Enhancement Act," 42 WEEKLY COMP. PRES. DOC. 2196 (Dec. 20, 2006).
154. Strauss, The Place of Agencies in Government, supra note 35, at 598-99;
155. see also supra note 35.
156. U.S. CONST, art. I, § 8, cl. 18. That the text says "Constitution" and does not refer to statutory vesting is best understood as a residue of the change that eliminated the constitutional definition of departments. The Constitution as such vests no power in any department; the only officers in whom it vests powers are the President, the Vice President, and the Justices of the Supreme Court. (A similar residue, presuming the existence and duties of the departments that in fact are missing from the constitutional text, appears in Article II, Section 2, Clause 1, the "opinions in writing" clause.) A more literal reading, regarding the Necessary and Proper Clause as giving Congress plenary "necessary and proper" authority over the powers of the President and Vice President (that is, over the powers of the only officers the Constitution actually does mention), would be as disturbing to governmental balance as the expansive views of presidential authority discussed in the text.
157. E.g., BRUFF, supra note 2;
158. Lessig & Sunstein, supra note 3;
159. Mashaw, supra note 32;
160. Stack, supra note 3.
161. U.S. CONST, art. I, § 6, cl. 2;
162. its implications and relation to the Court's jurisprudence is well developed in BRUFF, supra note 2, at 393-95.
163. Buckley v. Valeo, 424 U.S. 1, 109-43 (1976) (holding that because the Federal Election Commission was partially composed of officials appointed by the Speaker of the House and the President pro tempore of the Senate, it could not perform "administrative functions," which were properly left to "Officers of the United States," that is, those appointed by the President or Heads of Departments and located within the executive branch).
164. Hechinger v. Metro. Wash. Airports Auth., 36 F.3d 97 (D.C. Cir. 1994) (rejecting Congress's effort to evade the teaching of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265-77 (1991), that members of Congress could not sit on a Board of Review with the authority to veto decisions made by directors of the Metropolitan Washington Airports Authority).
165. Morrison v. Olson, 487 U.S. 654, 686 (1988);
166. Bowsher v. Synar, 478 U.S. 714, 722-23, 726-27 (1986);
167. Myers v. United States, 272 U.S. 52, 163-64 (1926).
168. Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory Committee Act, requiring public meetings of all "advisory committees" established to render advice to the President or agencies, to not extend to the ABA Standing Committee on Federal Judiciary, which gave the Department of Justice advice on potential nominees for judge-ships, because this would present "formidable constitutional difficulties"). Justice Kennedy, as Professor Bruff points out, BRUFF, supra note 2, at 395-96, grounded his concurrence in emphatic separation of power terms.
169. See Public Citizen, 491 U.S. at 482-89 (Kennedy, J., concurring in judgment).
170. Freytag v. Comm'r, 501 U.S. 868, 886 (1991). The apparent implications of the Court's reasoning are withdrawn without explanation in note four of Justice Blackmun's opinion for the Court. Id. at 887 n.4.
171. 42 U.S.C. § 205 (2000).
172. 28 U.S.C. § 505 (2000).
173. See Myers, 272 U.S. at 128-29 (while lacking a role in the removal of executive-branch officials, Congress may "prescrib[e] . . . reasonable and relevant qualifications" for office);
174. id. at 265-74 (Brandeis, J., dissenting).
175. Bradley & Posner, supra note 110 (citing Statement on Signing the Coast Guard Authorization Act of 1996, 32 WEEKLY COMP. PRES. DOC. 2112, 2113 (Oct. 19, 1996) (arguing that the Appointments Clause does not permit such restrictions and directing the Secretary of Transportation to regard the recommendation as advisory)).
176. Statement on Signing the Lobbying Disclosure Act of 1995, 2 PUB. PAPERS 1907 (Dec. 19, 1995).
177. 19 U.S.C. § 2171(b)(3) (2000).
178. Constitutionality of Statute Governing Appointment of United States Trade Representative, 20 Op. Off. Legal Counsel 279, 279 (1996). Though the opinion concluded that this was "an unconstitutional intrusion on the President's power of appointment," id., conflict of interest concerns might still have sustained the "necessary and proper" character of the limitation.
179. Thus, President Reagan objected to a provision that could be read to require the FEMA director to appoint an individual nominated by one of six private organizations, stating that the provision would be interpreted to mean that private organizations' nominations were advisory, Statement on Signing H.R. 558 into Law, 23 WEEKLY COMP. PRES. DOC. 842 (July 22, 1987);
180. and President George H.W. Bush expressed concerns about tight multiple limitations on appointment of trustees to a scholarship board, Statement on Signing the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992, 28 WEEKLY COMP. PRES. DOC. 507 (Mar. 19, 1992).
181. Bradley & Posner, supra note 110.
182. See, e.g., Saikrishna Prakash, Regulating Presidential Powers, 91 CORNELL L. REV. 215 (2005) (reviewing HAROLD J. KRENT, PRESIDENTIAL POWERS (2005)).
183. Department of Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, 120 Stat. 1355 (2006).
184. Statement on Signing the Department of Homeland Security Appropriations Act, 2007, 42 WEEKLY COMP. PRES. DOC. 1742, 1742-43 (Oct. 4, 2006) (emphasis added). To similar effect, see the signing statement on the Postal Accountability and Enhancement Act, supra note 115.
185. Yoo et al., supra note 3, at 607 (emphasis added). In a subsequent essay, Jack Goldsmith and John Manning argue similarly, if circumspectly, for a presumption that the President may decide issues delegated for decision to others, absent congressional signals more explicit than the delegation itself. Jack Goldsmith & John F. Manning, The President's Completion Power, 115 YALE L.J. 2280 (2006).
186. U.S. CONST, art. II, § 3, cl. 1.
187. Budget and Accounting Act of 1921, Pub. L. No. 67-13, 42 Stat. 20 (codified as amended in scattered sections of 31 U.S.C).
188. The matter was one of the confusions underlying Bowsher v. Synar, 478 U.S. 714 (1986).
189. See Percival, supra note 87, at 982-97.
190. See, e.g., OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, OMB CIRCULAR NO. A-19, § 7(a), LEGISLATIVE COORDINATION AND CLEARANCE (Sept. 20, 1979); the current text of this and other OMB circulars may be found at http://www.whitehouse.gov/omb/ circulars/index.html.
191. U.S. CONST, art. II, §2, cl. 1 (emphasis added).
192. See supra note 136 and accompanying text.
193. Budget and Accounting Act of 1921, Pub. L. No. 67-13, §§201, 206, 42 Stat. 20, 20-21 (codified as amended in scattered sections of 31 U.S.C).
194. Bradley & Posner, supra note 110.
195. Statement on Signing the Price-Anderson Amendments Act of 1988, 24 WEEKLY COMP. PRES. DOC. 1075, 1076 (Aug. 20, 1988) (emphasis added).
196. Statement on Signing Legislation to Study the Feasibility of Establishing a Native American Cultural Center, 27 WEEKLY COMP. PRES. DOC. 1795, 1796 (Dec. 9, 1991) (emphasis added). Thanks to Professor Trevor Morrison for pointing out this progression from a presidential claim of authority to control his own recommendations, to one asserting control over all executive branch communication.
197. Statement on Signing the Balanced Budget Act of 1997, 33 WEEKLY COMP. PRES. DOC. 1190, 1191 (Aug. 5, 1997).
198. Compare Sullivan v. United States, 395 U.S. 169, 170 n.2 (1969), an action under the Soldiers and Sailors Civil Relief Act, 50 U.S.C. app. § 514 (1940), amended by 50 U.S.C. app. § 574, requiring the Department of Justice to represent service members in their disputes with local taxing authorities. The government's brief was submitted without the signature of either the Solicitor General or the Assistant Attorney General in charge of the Tax Division, and with a prefatory statement from them noting both the statutory obligation, and their disagreement with the position taken in the brief. The case was argued by another government attorney, who perhaps unsurprisingly lost the case by unanimous vote.
199. See Peter L. Strauss, The President and Choices Not to Enforce, 63 LAW & CONTEMP. PROBS. 107, 120 (2000).
200. Supra note 136 and accompanying text.
201. Supra note 136 and accompanying text.
202. Bradley & Posner, supra note 110, n.75.
203. Kagan, supra note 3.
204. Statement on Signing Fiscal Year 2001 Appropriations Legislation, 3 PUB. PAPERS 2348 (Oct. 27, 2000).
205. Id. at 2349.
206. Id. at 2351.
207. Id.
208. That is, this is an official at least some of whose important duties might fall within the strong-discretion ambit evoked by Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803).
209. See supra note 62. Compare Justice White's dissent in Bowsher v. Synar, 478 U.S. 714, 760-62 (1986) (White, J., dissenting) (internal citations omitted), emphasizing what it is that the Court quite pointedly and correctly does not hold: namely, that "executive" powers of the sort granted the Comptroller by the Act may only be exercised by officers removable at will by the President. The Court's apparent unwillingness to accept this argument, which has been tendered in this Court by the Solicitor General, is fully consistent with the Court's longstanding recognition that it is within the power of Congress under the "Necessary and Proper" Clause to vest authority that falls within the Court's definition of executive power in officers who are not subject to removal at will by the President and are therefore not under the President's direct control. . . . [W]ith the advent and triumph of the administrative state and the accompanying multiplication of the tasks undertaken by the Federal Government, the Court has been virtually compelled to recognize that Congress may reasonably deem it "necessary and proper" to vest some among the broad new array of governmental functions in officers who are free from the partisanship that may be expected of agents wholly dependent upon the President. . . . [T]here are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President.
210. See WHITE, supra note 46, at 37.
211. Peter Shane, Presidential Signing Statements and the Rule of Law as an 'Unstructured Institution,' 16 WM. & MARY BILL RTS. J. (forthcoming 2007).
212. Id.
213. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 18, 2007). This Executive Order was issued long after initial submission of this article to the Law Review; this section draws on observations about its potential effects made in testimony before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary on February 13, 2007. This and other testimony offered that day, to this subcommittee and to the Committee on Science and Technology, Subcommittee on Investigations and Oversight of the House Committee on Science and Technology, are available online at http://judiciary.house.gov/ oversight.aspx?ID=269 and http://science.house.gov/publications/ hearings_markups_details.aspx?NewsID=1269.
214. See supra notes 22-27 and accompanying text.
215. Exec. Order No. 13,422 § 5(b), 72 Fed. Reg. 2763 (Jan. 18, 2007).
216. Id. § 4(b).
217. Exec. Order No. 12,866 § 6(a)(2), 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
218. id. § 4(c)(1).
219. See OMB Watch, President Bush Amends Federal Regulatory Process (Jan. 23, 2007), http://www.ombwatch.org/article/articleview/3688/1/132?TopicID= 1. OMB Watch has been sharply critical of the Executive Order.
220. See, e.g., OMB WATCH, A FAILURE TO GOVERN: BUSH'S ATTACK ON THE REGULATORY PROCESS (2007) (report released March 15), available at http://www.ombwatch.org/regs/PDFs/FailuretoGovern.pdf. The analysis here does not draw on the OMB Watch report.
221. Robert Pear, Bush Directive Increases Sway on Regulation, N. Y. TIMES, Jan. 30, 2007, at Al;
222. Cindy Skrzycki, Bush Order Limits Agencies' 'Guidance,' WASH. POST, Jan. 30, 2007, at D1.
223. DeMuth, formerly the Reagan Administration's Administrator for Information and Regulatory Affairs, wrote: The greatest benefit of OMB review . . . may result from the agency mechanisms established to respond to the kinds of questions that OMB raises. In response to Executive Order 12,291, agencies either established or enhanced their inhouse capabilities to analyze their regulatory decisions. In response to Executive Order 12,498, before their options were foreclosed, agency heads established or enhanced their review of regulatory activity that was planned or underway. The regulatory planning process was in part a response to troublesome rules presented to OMB by agency heads who had themselves only recently learned that a rule of this kind was being developed. By then, there would often be some reason (such as commitments made in congressional testimony or in consent decrees) why the agency had no alternative but to issue the troublesome rule. The requirement that agency heads take a thorough look, once a year, at all significant rulemaking activity ensured for the first time that those matters were presented to agency policymaking officials while there was still time to make some policy. OMB's subsequent review of agency plans again ensures that the hard questions will be asked before an agency commits itself to a particular regulatory approach. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075, 1085 (1986).
224. 5 U.S.C. §§ 601-612 (2000). While requiring agencies to publish semiannual regulatory agendas, it explicitly provides that "[n]othing in this section precludes an agency from considering or acting on any matter not included in a regulatory flexibility agenda, or requires an agency to consider or act on any matter listed in such agenda." Id. § 602(d).
225. Exec. Order No. 12,866, § 6(a)(2), 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 (2000) ("[E]ach agency head shall designate a Regulatory Policy Officer who shall report to the agency head. The Regulatory Policy Officer shall be involved at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles set forth in this Executive order.").
226. Kagan, supra note 3, at 2290-98.
227. See Regulatory Accounting: Costs and Benefits of Fed. Regulations: Hearing Before the Subcomm. on Energy Policy, Natural Resources and Regulatory Affairs of the H. Comm. on Gov't Reform, 107th Cong. 2 (2002) (statement of John D. Graham, Administrator, Office of Info, and Regulatory Affairs, Office of Mgmt. and Budget) (describing the purpose and use of prompt letters), available at http://www.whitehouse.gov/omb/legislative/testimony/ graham_house031202.pdf.
228. Supra note 172.
229. See supra Part I.
230. Exec. Order No. 12,866, § 4(c), 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 (2000).
231. E.g., United States v. Am. Trucking Ass'ns, 310 U.S. 534, 544 (1940) ("The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function."). The tension the reader may sense between this bromide and Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is comparable to that which may be remarked between Justice Black's confident statement for the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952),
232. see supra text accompanying note 60, that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker," and administrative agency rulemaking. That a court might find certain authority statutorily delegated to an agency (and thus be fulfilling its "exclusively . . . judicial function" when it acts on that interpretation) does not entail a finding that this authority has been statutorily delegated to the President. See the discussion in the text infra following note 215.
233. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
234. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676 (2005).
235. Id. at 711 & n.108.
236. See, e.g., 3 Op. Att'y Gen. 367, 369 (1838) (Butler);
237. 5 Op. Att'y Gen. 390, 391 (1851) (Crittendon).
238. 9 Op. Att'y Gen. 32, 36-37 (1857).
239. 17 Op. Att'y Gen. 332, 333 (1882).
240. Cushing was a proponent of presidential decisional power. See supra note 2.
241. 6 Op. Att'y Gen. 326, 334 (1854).
242. 7 Op. Att'y Gen. 691, 699-700 (1856). The quasi-judicial characterization is itself problematic, suggesting a professional objectivity in the Attorney General's performance of a function that is easily overcome by his loyalty and sense of obligation to a highly political client. See Pillard, supra note 181, for a thoughtful development of this tension and its implications. The tension also underlies a good deal of the contemporary literature.
243. E.g., Douglas W. Kmiec, OLC's Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 CARDOZO L. REV. 337 (1993);
244. Nelson Lund, Rational Choice at the Office of Legal Counsel, 15 CARDOZO L. REV. 437 (1993);
245. John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 CARDOZO L. REV. 375 (1993);
246. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303 (2000);
247. see also Samuel A. Alito, Jr., Change in Continuity at the Office of Legal Counsel, 15 CARDOZO L. REV. 507 (1993).
248. 28 U.S.C. §§ 518-519 (2000). Even such straightforward language as this may of course be defeated by bureaucratic realities. The size of the government's litigating docket and the political independence of U.S. Attorneys (who often enjoy the protection of powerful political patrons, their Senators) can mean, in practice, that Washington's capacity to control is sharply limited. See, e.g., Peter L. Strauss, The Internal Relations of Government: Cautionary Tales from Inside the Black Box, 61 LAW & CONTEMP. PROBS. 155, 156-57, 167-68 (1998) (describing how an Assistant U.S. Attorney for the Southern District of New York commenced litigation on behalf of "client" Brookhaven National Laboratory, despite the contrary wishes of the two cabinet departments and independent regulatory commission also directly concerned).
249. Act to Establish the Department of Justice, ch. 150, § 4, 16 Stat. 162, 162 (1870).
250. 20 Op. Att'y Gen. 654, 659 (1893).
251. See, e.g., 25 Op. Att'y Gen. 301, 303-04 (1904) (Moody);
252. Op. Att'y Gen. 562, 563 (1934) (Cummings).
253. 28 U.S.C. §§ 511-513. These sections place the initiative for seeking advice in the client, the department, rather than the Attorney General. Section 513 concerns the Department of Defense, and curiously suggests-in diction missing from the other sections-both that the Attorney General in some cases will not be the proper source of legal advice and that her advice, when given, may be dispositive: When a question of law arises in the administration of the Department of the Army, the Department of the Navy, or the Department of the Air Force, the cognizance of which is not given by statute to some other officer from whom the Secretary of the military department concerned may require advice, the Secretary of the military department shall send it to the Attorney General for disposition. Id. § 513.
254. Moss, supra note 188, at 1320.
255. Exec. Order No. 12,146 § 1-202, 3 C.F.R. 409, 410 (1980), reprinted as amended in 28 U.S.C. § 509 (2000).
256. Id. §§ 1-401 to 1-402, 3 C.F.R. at 411 (1980), reprinted as amended in 28 U.S.C. § 509 (2000).
257. William P. Barr, Attorney General's Remarks, Benjamin N. Cardozo School of Law, November 15, 1992, 15 CARDOZO L. REV. 31, 36 (1993).
258. Congress appears sometimes to have relied on the "checks and balances" inherent in potentially conflicting or overlapping assignments, in ways the Supreme Court has not fully appreciated. Consider two aspects of the plurality decision in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980). The decision returned a regulation controlling the carcinogenic chemical benzene in the workplace to the Occupational Safety and Health Administration ("OSHA") because, the plurality thought, OSHA had failed to make a necessary judgment about the importance of giving this chemical priority over all the others it might have regulated. Id. at 640, 662. (This, one might note, was an asserted failure of executive action, selecting among priorities; if the choice of benzene as target was acceptable, the Court seemed to have no difficulty with the justification for the regulation.) First Congress had provided that another agency-its scientific integrity insulated within the Department of Health, Education, and Welfare's National Institutes of Health-should advise OSHA (an administration of the Department of Labor) about its priorities;
259. and the National Institute of Occupational Safety and Health had repeatedly called on OSHA to take action very like that which it ultimately proposed and decided upon. See id. at 618-23 & n.10. The plurality, in its concerns about the rationality of prioritization, paid no attention to this careful bureaucratic arrangement. Second, while OSHA has responsibilities for carcinogens in workplace air, the EPA has that responsibility for the air citizens breathe. Citizens and workers co-occupy gas stations, where benzene is frequently in the air; what standards should govern there? OSHA had excepted gas stations from its regulation, awaiting resolution of this issue with EPA through intra-governmental mechanisms-the Federal Legal Council or perhaps the OMB. The plurality, however, appears to have taken this accommodation to the realities of possibly conflicting mandates as a sign of OSHA's irrationality, questioning how such a large body of workers could be excepted from the reach of the rule. Id. at 628.
260. Train v. Colo. Pub. Interest Research Group, Inc., 426 U.S. 1 (1976).
261. Strikingly, in doing so the Court unanimously insisted on the necessity of consulting legislative history, an approach that could hardly be imagined today: To the extent that the Court of Appeals excluded reference to the legislative history of the FWPCA in discerning its meaning, the court was in error. As we have noted before: "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.'" In this case, as we shall see, the legislative history sheds considerable light on the question before the Court. Id. at 9-10 (internal citations omitted).
262. The NRC succeeded to the regulatory responsibilities of the Atomic Energy Commission ("AEC") in 1975, turning what had previously been an AEC-EPA problem into an NRC-EPA problem.
263. Train, 426 U.S. at 24 n.20.
264. See Percival, supra note 87, at 998-99.
265. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring) (footnotes omitted).
266. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 893 (2001) (citing Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9 (1997), and similar circuit court cases).
267. Cf. Gonzales v. Oregon, 126 S. Ct. 904, 920-22 (2006) (if an act confers limited interpretive authority on more than one agency, that counsels against finding that one agency's view has the force of law);
268. United States v. Mead Corp., 533 U.S. 218, 229 (2001) (Chevron deference warranted only if Congress delegated, and agency exercised, authority to act with legal force).
269. Supra notes 199-200.
270. INS v. Chadha, 462 U.S. 919 (1983).
271. See Peter L. Strauss, Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision, 1983 DUKE L.J. 789, 805-06.
272. 5 U.S.C. §§ 901-912 (2000).
273. Pillard, supra note 181, at 704-17.
274. Id. at 723-28.
275. Id. at 713-14, 750.
276. See id. at 730.
277. See supra note 195.
278. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring) (footnotes omitted).
279. See Kagan, supra note 3;
280. Lessig & Sunstein, supra note 3;
281. see also Goldsmith & Manning, supra note 137.
282. Kagan, supra note 3, at 2319-31.
283. Stack, supra note 3.
284. id. at 278-91.
285. Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933).
286. E.g., United States v. Am. Trucking Ass'ns, 310 U.S. 534, 549 (1940).
287. Id. at 544;
288. cf. supra note 179.
289. Cf. Printz v. United States, 521 U.S. 898, 907-08 (1997) (finding that the absence of early statutes attempting to co-opt state executives in enforcement of federal law suggested that Congress lacked such power, particularly in comparison with numerous early statutes imposing such an obligation on state courts).
290. See supra note 13 and accompanying text.
291. See supra note 10 and accompanying text.
292. United States v. Mead Corp., 533 U.S. 218 (2001).
293. See, e.g., Goldsmith & Manning, supra note 137, at 2298-302;
294. Kagan, supra note 3, at 2372-80.
295. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 195 (1978) (emphases added)).
296. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166-70 (1803);
297. see supra note 62.
298. Id. at 166.
299. See Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253 (1997).
300. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001).
301. "I once asked Jay Plager what he worried about legally when he headed OIRA, and he said: 'the 3 sisters concern, that political pressure would detach administrators from statutory grounds.'" E-mail from Harold Bruff, Charles Inglis Thomson Professor of Law, Univ. of Colo. Law Sch., to Peter Strauss (Jan. 15, 2007, 10:45 EST) (on file with the author). "The 3 sisters" refers to D.C. Federation of Civic Ass'ns v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971), in which the D.C. Circuit vacated a decision of the Secretary of Transportation on finding that political pressure, in this case from a Member of Congress, may have influenced the Secretary to decide on the basis of factors not provided by statute.
302. See supra note 78.
303. In the Congressional Review Act, 5 U.S.C. §§ 801-808 (2000), Congress created an elaborate mechanism for generating and potentially enacting fast-track legislation disapproving any agency rule, while delaying rule effectiveness for a time to permit congressional review to occur. The one example of Congress's successfully exercising this elaborate authority occurred in the transition between the Clinton and Bush administrations, when a Republican Congress and President agreed to block an OSHA rule on ergonomic injuries that a Democratic President would probably have supported and could have protected with his veto. S.J. Res. 6, 107th Cong, 115 Stat. 7 (2001);
304. see also Statement on Signing Legislation to Repeal Federal Ergonomics Regulations, 37 WEEKLY COMP. PRES. DOC. 477 (Mar. 20, 2001).
305. Absent express statement, the Court has held, the APA does not apply to presidential decision making. Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992). While FOIA is in terms applicable to "the Executive Office of the President," 5 U.S.C. § 552(f)(1) (2000), the relevant web page for FOIA access within the White House advises: The President's immediate personal staff and units within the EOP whose sole function is to advise and assist the President are not subject to FOIA. Please contact the separate EOP entities, that are subject to FOIA, individually, if you would like to make a FOIA request for their records. The EOP entities subject to the FOIA are: Council on Environmental Quality; Office of Administration; Office of Management and Budget; Office of National Drug Control Policy; Office of Science and Technology Policy; Office of the United States Trade Representative The EOP entities exempt from the provisions of the FOIA are: White House Office; Office of the Vice President; Council of Economic Advisers; National Security Council; Office of Policy Development; Domestic Policy Council; Office of National AIDS Policy; National Economic Council; President's Foreign Intelligence Advisory Board FOIA Within the EOP, http://www.whitehouse.gov/government/eop-foia.html (last visited May 6, 2007). Dean Kagan's article makes clear that policy directives emerge from the Domestic Policy Council and the like, not OMB. Kagan, supra note 3, at 2297,2316. In any event, relevant OMB/OIRA documents would likely fall within the government's "predecisional" privilege under 5 U.S.C. § 552(b)(5).
306. Or by a five-member independent regulatory commission. There are, in my judgment, few important differences in this regard. See Strauss, The Place of Agencies in Government, supra note 35, at 583-96.
307. See generally Bressman & Vandenbergh, supra note 5.
308. See supra note 62.
309. Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217 (2006).
310. See supra note 8.
311. President Clinton, the exception, nonetheless built on the "strong presidency" line he inherited from Presidents Reagan and George H.W. Bush. See generally Kagan, supra note 3.
312. See supra note 9 and accompanying text.
313. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C).
314. Executive Order 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 (2000), is the most prominent such requirement.
315. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314 (2006).
316. See John Yoo, Op-Ed., How the Presidency Regained Its Balance, N.Y. TIMES, Sept. 17, 2006, § 4 (Week in Review) at 15.
317. Heckler v. Chaney, 470 U.S. 821, 832 (1985) ("[A]n agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict - a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed."').
318. See supra notes 22-27 and accompanying text.
319. See Bressman & Vandenbergh, supra note 5, at 55-59, 95-96.
320. See supra note 249 and accompanying text.
321. See Christopher DeMuth, Memorandum to the Cabinet Council on Domestic Affairs, reprinted in 3 INSIDE THE A DMINISTRATION, NO. 3, at 7 (Feb. 10, 1984).
322. Supra Part III.B.
323. See, e.g., Heckler v. Chaney, 470 U.S. 821, 832-33 & n.4 (1985);
324. Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 & n.* (1983) (Rehnquish J., concurring in part and dissenting in part).
325. See supra note 47 and accompanying text.
326. Compare the following from President Bush's signing statement on the Postal Accountability and Enhancement Act of 2006, Pub. L. No. 109-435, 120 Stat. 3198, reacting to a statutory provision explicitly requiring a search warrant to open domestic first class mail: The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection. Statement on Signing the Postal Accountability and Enhancement Act, 42 WEEKLY COMP. PRES. DOC. 2196, 2196 (Dec. 20, 2006).