Disclosing "political" oversight of agency decision making

Michigan Law Review

Volumn 108, Issue 7, 2010, Pages 1127-1178

  Mendelson, Nina A ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 77952689544     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (317)

1. See infra text accompanying notes 46-48.
2. As long as agencies have considered "relevant factors" under a statute, courts rarely go much further in inspecting the rationale of an agency decision. Cf. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978) (giving deference to agency decision with regard to procedure where agency considered "relevant factors").
3. See infra text accompanying notes 145-160.
4. See Curtis W. Copeland, Cong. Research Serv., Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, Summary (2009) ("[OIRA] is part of the Executive Office of the President, and helps ensure that covered agencies' rules reflect the President's policies and priorities.")
5. Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47, 65-69 (2006) (discussing the OIRA's influence, as well as that of other White House offices)
6. see also Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 714-15 (2007) (discussing possibility that White House guidance can be "conflicting, not unidirectional").
7. See infra text accompanying notes 46-48.
8. Jody Freeman & Adrian Vermeule, Massachusetts v EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 88 (describing this as an inference that can be drawn from the Supreme Court's State Farm decision).
9. Id. at 54-55.
10. E.g., Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443 (1987) (arguing that Congress can and should enact stringent limitations on presidential influence on informal rulemaking).
11. The Administrative Procedure Act provides broadly for judicial review of an agency's "action." 5 U.S.C. § 704 (2006) ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."). In most cases, however, judicial review is limited to determining whether an agency's action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2006).
12. Christopher F. Edley, Jr., Administrative Law: Rethinking Judicial Control of Bureaucracy 192 (1990).
13. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2380 (2001).
14. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 83 (2009). Similar to the proposal made here, Margaret Gilhooley has also proposed ex ante disclosure of executive oversight, on the grounds that there would be "greater accountability to Congress and the public for the explanation" and for the agency's "accept[ance of] an administration position as an agency policy," as well as a "safeguard that the agency has exercised independent judgment.".
15. See Margaret Gilhooley, Executive Oversight of Administrative Rulemaking: Disclosing the Impact, 25 Ind. L. Rev. 299, 333 (1991).
16. See infra text accompanying notes 167-170.
17. U.S. Const. art. II, § 1, cl. 1.
18. U.S. Const. art. II, § 2, cl. 1.
19. U.S. Const. art. II, § 3, cl. 4.
20. Jack Goldsmith & John F. Manning, The President's Completion Power, 115 Yale L.J. 2280, 2297 (2006) ("[T]he executive branch has exercised an ambitious program of regulatory supervision that is a clear example of the President's completion power....").
21. Id. at 2282 ("It is a defeasible power; Congress can limit it, for example,... by specifying the manner in which a statute must be implemented."). Sharp disagreement persists on Goldsmith and Manning's theory.
22. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1166 (2008) (finding Goldsmith and Manning's theory unpersuasive).
23. Harold Hongju Koh, Setting the World Right, 115 Yale L.J. 2350, 2368-70 (2006) (challenging constitutional underpinnings of Goldsmith and Manning's arguments)
24. see also Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006) (arguing that errors in use of completion power would be very difficult to fix).
25. E.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 Yale L.J. 541, 570-99 (1994) (detailing the textual argument for the unitary executive)
26. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 3 (1994) (analyzing both a historical and constitutional basis for the unitary executive).
27. Contra Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963 (2001) (arguing that the President does not have unitary executive powers). On the Opinions Clause in particular
28. Compare Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 979-80 (1997) (arguing that the Opinions Clause contemplates presidential involvement in agency decision making)
29. With McGarity, supra note 8, at 480 (arguing that the Opinions Clause represents, at most, a "paperwork requirement for presidential monitoring of bureaucratic thinking").
30. And Strauss, supra note 4, at 703 (noting that some have concluded that the opinions clause suggests "constitutional obligations not only to oversee [agency officials] but also to respect their independent exercise of those duties").
31. See Kagan, supra note 11, at 2326-35 (arguing that congressional delegation of authority to agencies is against backdrop and knowledge of presidential administration, and that interpretation is consistent with best reading of statute).
32. id. at 2329-30 (inference to be drawn from delegation to "President" is that President has latitude to choose which agency official will receive subdelegation). But see Stack, supra note 18 (arguing that negative inferences should be drawn from statutory failure to mention the President by name). Although Stack presents delegations in which Congress specifically mentioned a presidential role as a contrast to those in which only an agency was mentioned, my view is that members of Congress are more likely to be aware of the general fact of executive supervision than sensitive to the precise words that might be used to draft a particular agency delegation. An alternative interpretation of Congress's decision to use the word "President" in a delegation, for example, is simply that it wishes to authorize the President to select which executive branch agency is the most appropriate implementer of a statute. For example, consider the climate change-related controversy in Congress in 2009 over whether the EPA or the USDA should be designated to run part of a climate change program. Agriculture groups wanted the USDA to run the program; environmentalists preferred the EPA. The Senate bill deferred by delegating authority to the President, with the understanding that the President would be responsible for assigning implementation responsibilities to the agencies.
33. See Alison Winter, Kerry-Boxer proposal leaves question mark for forestry groups, Env't & Energy Daily, Oct. 2, 2009, http://www.eenews.net/ public/EEDaily/2009/10/02/2 ("The new Senate text gives the president jurisdiction over the potential program, rather than defining clear roles for USDA and U.S. EPA."). What Kagan's arguments do not resolve, however, is how far this presidential influence could extend-such as whether a President could sign a proposed rule in the Federal Register over the objection of a reluctant administrator.
34. See Strauss, supra note 4, at 704-05 (arguing that "overseer" function is commensurate with presidential obligations and responsibilities as Chief Executive).
35. See id. at 704 ("The subordinate's understanding of [whether ordinary respect and political deference or law-compelled obedience] is owed, and what is her personal responsibility, has implications for what it means to have a government under laws."). Strauss describes a couple of cases in which agency heads have resisted presidential "direction."
36. Id. at 736.
37. See infra Section IV.B.1.
38. See Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. Rev. 557, 577 (2003).
39. Edward Rubin, The Myth of Accountability and the Anti-administrative Impulse, 103 Mich. L. Rev. 2073, 2119 (2005) (offering definition of accountability and arguing, among other things, that elections cannot assure administrative agency accountability).
40. Strauss, supra note 4, at 704 (quoting Edward S. Corwin, The President: Office and Powers 1787-1957, at 80-81 (4th rev. ed. 1957)).
41. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 463-64 (2003) ("The presidential control model misleads us into thinking that [political] accountability is all we need to assure ourselves that agency action is constitutionally valid.... I suggest that a focus on the avoidance of arbitrary agency decisionmaking lies at the core of... a theoretical justification of administrative legitimacy....")
42. Strauss, supra note 4, at 704 (suggesting that the risk of a "'legally uncontrollable'" branch of government must be addressed because of its implications for "what it means to have a government under laws")
43. see also Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 996 (2007) (arguing that nondelegation doctrine promotes core "rule of law" values such as protection against "arbitrary agency decision-making and [promoting] regularity, rationality, and transparency").
44. See, e.g., Amy Gutmann & Dennis Thompson, Democracy and Disagreement 16, 40-41, 137 (1996) (describing procedural democracy as ensuring accountability for policies and results). Gutmann and Thompson further argue that democracy requires a deliberative process engaging both the decision-making institution and citizens. Id. at 12-13.
45. Id. at 12-13.
46. E.g., Bressman, supra note 27, at 486.
47. Kagan, supra note 11, at 2339-40.
48. Bressman, supra note 27, at 506.
49. E.g., Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 988 (1997) (noting that scholars and the judiciary have looked to the President to "supply the elusive essence of democratic legitimation").
50. See Jerry L. Mashaw, Greed, Chaos and Governance: Using Public Choice to Improve Public Law 111 (1997) (describing a view of the administrative state as a "well-ordered input/output machine")
51. Bressman, supra note 27, at 479-80 (suggesting that the technocratic view of agency decision making argues that technical expertise would provide protection against arbitrary decision making)
52. Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1282-83 (1984)
53. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1675-76 (1975).
54. E.g., Lloyd N. Cutler & David R. Johnson, Regulation and the Political Process, 84 Yale L.J. 1395, 1399 (1975) (asserting that regulatory agencies are heavily involved in "'political' decisions in the highest sense of that term").
55. National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, 80 Stat. 718 (repealed 1994).
56. Clean Air Act, 42 U.S.C. § 7409(b)(1) (2006).
57. Energy Policy and Conservation Act, 49 U.S.C. § 32902(f) (2006) (discussing"[c]onsiderations on decisions on maximum feasible average fuel economy").
58. See Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 46 Fed. Reg. 53,419 (Oct. 29, 1981).
59. Transportation Unit Cuts Estimated Cost Of Air Bags, Other Safety Devices in Cars, Wall St. J., Aug. 4, 1976, at 3 (describing the hearing of August 3, 1976)
60. see also Morton Mintz, Coleman, Nader Exchange 'Bigot' Jabs at Air Bag Hearing, Wash. Post, Aug. 4, 1976, at A2. Prior to the close of the Ford Administration, and seemingly connected to the public hearings, Coleman did announce an air-bag demonstration program intended in part to evaluate whether a full-scale airbag program "would be badly received by the driving public."
61. Ernest Holsendolph, Coleman Puts Off Air-Bag Ruling; Proposes a Limited Voluntary Plan, N.Y. Times, Dec. 7, 1976, at 1.
62. See 30 U.S.C. §§ 1201-1328 (2006). Section 522(e) of the Surface Mining Control and Reclamation Act (SMCRA) prohibits "surface coal mining operations" in certain areas, including within national parks, national forests, and within 300 feet of occupied dwellings. Surface Mining Control and Reclamation Act of 1977 § 522(e), 30 U.S.C. § 1272(e).
63. Interpretative Rule Related to Subsidence Due to Underground Coal Mining, 64 Fed. Reg. 70,838, 70,843 (Dec. 17, 1999) codified at 30 C.F.R. § 761.200 (2009) (rule issued following notice and comment). The statute defines the term "surface coal mining operations" to include "activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements of section 1266 of this title surface operations and surface impacts incident to an underground coal mine...." 30 U.S.C. § 1291(28)(A).
64. See Citizens Coal Council v. Norton, 330 F.3d 478, 483 (D.C. Cir. 2003) (finding that statute did not clearly answer question presented and affirming agency interpretation under Chevron Step Two); Interpretative Rule Related to Subsidence, 64 Fed. Reg. at 70,843 (Dec. 17, 1999) ("[T]he definition of 'surface coal mining operations' in SMCRA section 701(28) is not a model of clarity."). But see Citizens Coal Council v. Norton, 193 F. Supp. 2d. 159, 164 (D.D.C. 2002) (finding Congress clearly expressed intent to cover subsidence from underground mining in definition of "surface coal mining operations"), rev'd, 330 F.3d 478 (D.C. Cir. 2003).
65. Interpretative Rule Related to Subsidence, 64 Fed. Reg. at 70,849.
66. See supra note 33 (citing Stewart's, Mashaw's, and Frug's descriptions of this view-point)
67. Kagan, supra note 11, at 2334-36 (suggesting that the President has an important advantage in representing national majoritarian preferences compared with members of Congress, leaders of interest groups, and staff of permanent bureaucracy).
68. Kagan, supra note 11, at 2353 ("[A]gency experts have neither democratic warrant nor special competence to make the value judgments-the essentially political choices-that underlie most administrative policymaking.").
69. See Cynthia R. Farina, Undoing the New Deal Through the New Presidentialism, 22 Harv. J.L. & Pub. Pol'y 227, 229 (1998) ("[P]laced unambiguously under the President's direction, [the regulatory state's] democratic pedigree becomes impeccable.").
70. See Mashaw, supra note 33, at 153.
71. But see Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260, 1306 (2006) (suggesting President is no less immune to interest group pressures than agency officials).
72. See infra text accompanying notes 140-160.
73. 467 U.S. 837, 865-66 (1984)
74. see also id. at 865 (noting that deference is appropriate to interpretations that "rely upon the incumbent administration's views of wise policy").
75. In the final rule, the EPA stated only: "This action was submitted to the Office of Management and Budget ("OMB") for review as required by [Executive Order 12,291]." Requirements for Preparation, Adoption, and Submittal of Implementation Plans and Approval and Promulgation of Implementation Plans, 46 Fed. Reg. 50,766, 50,771 (Oct. 14, 1981) (to be codified at 40 C.F.R. pts. 51-52). The proposed rule stated that the OMB had relieved the agency of the obligation of regulatory review because the proposed rule was deregulatory in nature. See Requirements for Preparation, Adoption, and Submittal of Implementation Plans; Approval and Promulgation of Implementation Plans, 46 Fed. Reg. 16,280, 16,282 (proposed Mar. 12, 1981) (to be codified at 40 C.F.R. pts. 51-52).
76. 463 U.S. 29, 59 (1983).
77. Stack, supra note 18, at 307 n.191 (noting that State Farm now serves as "common contemporary shorthand for the requirement that agencies rationalize their decisions in terms of statutory criteria, and that a change of administration is not a sufficient basis for agency action")
78. Watts, supra note 12, at 5 ("Agencies should explain their decisions in technocratic, statutory, or scientifically-driven terms, not political terms.").
79. See Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 46 Fed. Reg. 53,419 (Oct. 29, 1981) (to be codified at 49 C.F.R. pt. 571). Judge Stephen Williams has suggested that the reopening of the rule was justified in what he calls political terms (the "difficulties of the auto industry,"), citing to State Farm itself.
80. See Stephen F. Williams, The Roots of Deference, 100 Yale L.J. 1103, 1107 (1991) (reviewing Edley, supra note 10). However, the proposed rule cited to by the State Farm Court was in fact a different one: it was a proposal to delay all standards by one year. The notice of that proposed rule did state that the delay was proposed "in light of the fact that economic circumstances have changed since the standard was adopted in 1977." Occupant Crash Protection, 46 Fed. Reg. 12,033, 12,033 (proposed Feb. 12, 1981) (to be codified at 40 C.F.R. pt. 571). Although it may have been part of the atmospherics of the State Farm case, a conclusion suggested by the Supreme Court's decision to cite the rule that proposed it, that one-year delay was adopted in a different final rule, Federal Motor Vehicle Safety Standards, Occupant Crash Protection, 46 Fed. Reg. 21,172 (Apr. 9, 1981), a rule not before the Supreme Court. Edley's description of the case more fairly notes the "total absence from Justice White's majority opinion of any mention of politics."
81. Edley, supra note 10, at 183.
82. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009) ("We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review."). Although he joined the majority opinion, Justice Kennedy also wrote a separate opinion to underscore his view that in some cases, a change in agency position might still require more rigorous judicial review.
83. Id. at 1822 (Kennedy, J., concurring in part and concurring in the judgment) ("The question whether a change... requires an agency to provide a more-reasoned explanation... is not susceptible... to an answer that applies in all cases.").
84. Id. at 1815-16 (majority opinion).
85. Id. at 1816 (Scalia, J.) ("If the FCC is indeed an agent of Congress, it would seem an adequate explanation of its change of position that Congress made clear its wishes for stricter enforcement....").
86. Another possible reading of the Fox dicta is that such preferences are permissible because the Administrative Procedures Act and its arbitrary and capricious review standard do not apply to congressional agencies. Perhaps, then, an executive branch agency could not rely solely on presidential preferences and still satisfy that review standard.
87. Hearing on EPA's New Ozone Standards Before H. Comm. on Oversight and Government Reform, 110th Cong. 1 (2008), (statement of Rep. Waxman, Chairman, H. Comm. on Oversight and Government Reform), available at http://purl.access.gpo.gov/GPO/LPS111049. Other members of Congress did point out that "Presidents of both parties have asserted the right to oversee and direct the actions and decisions of regulatory agencies."
88. Id. at 7 (statement of Congressman Issa, Member, H. Comm. on Oversight and Government Reform).
89. Eskridge & Baer, supra note 18, at 1177.
90. see also id. at 1175 (noting that "other commentators object" to presidentialist focus because it undermines institutional competence and ruleof-law notions).
91. Jerry L. Mashaw, Small Things Like Reasons Are Put in a Jar: Reason and Legitimacy in the Administrative State, 70 Fordham L. Rev. 17, 21 (2001).
92. 129 S. Ct. at 1832 (Breyer, J., dissenting) ("Where does, and why would, the APA grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?").
93. 549 U.S. 497, 531-33 (2007).
94. Freeman & Vermeule, supra note 6, at 52 (arguing that the case is an attempt to "ensure that agencies exercise expert judgment free from outside political pressures, even or especially political pressures emanating from the White House").
95. Massachusetts, 549 U.S. at 533.
96. Tummino v. Torti, 603 F. Supp. 2d 519, 547 (E.D.N.Y. 2009) ("The second departure was the unusual involvement of the White House in the Plan B decision-making process.... Whether or not it was permissible... these discussions were not the norm for the FDA with respect to this type of decision.").
97. See, e.g., D.C. Fed'n of Civic Ass'ns v. Volpe (The Three Sisters Bridge Case), 459 F.2d 1231, 1236 (D.C. Cir. 1971). What factors a statute may make relevant is, of course, an interpretive question.
98. The Administrative Procedure Act bars ex parte contacts in formal adjudication. See Administrative Procedure Act, 5 U.S.C. § 554(d) (2006).
99. see also § 556(e) ("The transcript of testimony and exhibits... constitutes the exclusive record for decision....").
100. Myers v. United States, 272 U.S. 52, 135 (1926) (suggesting that the President cannot "properly influence or control" agency decisions of quasi-judicial nature).
101. Sierra Club v. Costle, 657 F.2d 298, 407 (D.C. Cir. 1981) ("[T]here is no inherent executive power to control the rights of individuals in such settings.").
102. Gonzales v. Oregon, 546 U.S. 243 (2006).
103. Consider as well the classic example of congressional pressure in the Three Sisters Bridge case, in which a member of Congress threatened to hold hostage funding for the Washington, DC subway system unless a federal agency agreed to fund an unrelated bridge-building project. See Volpe, 459 F.3d at 1236. Some might suggest that such an attempt to influence agency action is similarly "contravening the law" when the statutory delegation is to the agency head, not to the President. For the reasons described above, the best reading of such statutes includes the possibility of presidential influence. See supra text accompanying note 20.
104. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider....").
105. cf. Kagan, supra note 11, at 2308 (suggesting that Clinton may have elected to be less involved in agency decisions that were highly technical in nature). Kathryn Watts suggests that, unless Congress has specifically foreclosed political factors and influences in a statute, an agency is likely free to consider them.
106. Watts, supra note 12, at 49 ("Congress's silence could be read to leave agencies free to consider political factors and influences."). Whether a particular factor can be considered is ultimately an issue of interpreting Congress's intent, however. E.g., George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C. Cir. 1998) (upholding the EPA's interpretation of Clean Air Act to permit it to consider treaty obligations and the market for imported gasoline under Chevron Step Two). On some occasions, congressional silence in the text of a statute has been interpreted to foreclose consideration of a factor.
107. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 471 (2001) (interpreting Clean Air Act "in its statutory and historical context... [to] unambiguously bar[] cost considerations" in the EPA's setting of ambient air quality standards). Other evidence has led an agency (or court) to interpret the statute to permit consideration of the factor despite congressional silence. E.g., Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 1521 (2009) (interpreting statutory silence respecting cost in Clean Water Act's cooling water intake regulatory provision to permit the EPA to consider relative costs and benefits of a particular limit; upholding the EPA's interpretation of statute as reasonable).
108. see also Whitman, 531 U.S. at 490-91 (Breyer, J., concurring) ("I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation [in which regulators take account of a proposed regulation's adverse effects]."). The critical issue for an agency's accountability on judicial review, however, should not be who advanced the concern, but whether the substance of it accords with the agency's statutory authorization.
109. Entergy Ark., Inc. v. Nebraska, 358 F.3d 528 (8th Cir. 2004) (agreeing with Central Interstate Low-Level Radioactive Waste Commission that Nebraska breached duty of good faith under regional compact).
110. See id. at 549-51.
111. Tummino v. Torti, 603 F. Supp. 2d 519 (E.D.N.Y. 2009).
112. Id. at 546 (quoting plaintiffs' exhibit).
113. Id. at 531.
114. Id. at 548 ("The FDA simply has not come forward with an adequate explanation, nor has it presented any evidence to rebut plaintiffs' showing that it acted in bad faith and in response to political pressure.").
115. See Gardiner Harris & David M. Halbfinger, F.D.A. Reveals It Fell to a Push By Lawmakers, N.Y. Times, Sept. 25, 2009, at A1 (discussing approval of Menaflex knee repair device).
116. Editorial, Science and Lobbying at the F.D.A., N.Y. Times, Oct. 3, 2009, at A22.
117. For a discussion of political manipulation strategies, see generally Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 Tex. L. Rev. 1601 (2008).
118. And Wendy Wagner & Rena Steinzor, Rescuing Science from Politics: Regulation and the Distortion of Scientific Research (Ctr. for Progressive Reform, White Paper No. 604, 2006), available at http://www.progressivereform.org/articles/Rescuing_Science_604.pdf.
119. See Memorandum from Barack Obama, President of the U.S., for the Heads of Executive Dep'ts & Agencies (Mar. 9, 2009), available at http://www.whitehouse.gov/the_press_office/ Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-3-9-09/.
120. E.g., Union of Concerned Scientists, Scientific Integrity in Policymaking: An Investigation into the Bush Administration's Misuse of Science (2004), available at http://www.ucsusa.org/assets/documents/scientific_integrity/rsi_final_fu llreport_1.pdf
121. James Glanz, Scientists Say Administration Distorts Facts, N.Y. Times, Feb. 19, 2004, at A18 (describing Union of Concerned Scientists report)
122. Christopher Lee, Ex-Surgeon General Says White House Hushed Him, Wash. Post, July 11, 2007, at A1. As Holly Doremus has thoroughly discussed, scientific integrity within the agencies can also face other threats, including political pressure coming from within the agency. See Doremus, supra note 80.
123. My argument here is consistent with Lisa Bressman's suggestion that scholars should not overemphasize concerns of political accountability at the expense of ensuring that the administrative state acts nonarbitrarily. Bressman, supra note 27, at 462-63.
124. See also Rubin, supra note 25. Whether these norms are "quasi-constitutional," as she suggests, however, need not be addressed at this juncture.
125. Bressman, supra note 27, at 503. They are obviously and appropriately part of a discussion on whether the administrative state's power is legitimately exercised. The appropriate comparison would be with an evaluation of whether Congress's deliberation is meaningful or focused or instead whether Congress enacts bills hundreds of pages long that no one has read. E.g., Interview of Congressmen John Conyers, Jr. and Jim McDermott, Fahrenheit 9/11 (Tristar Home Entertainment 2004) (alleging that no members of Congress read the USA Patriot Act prior to passage). An alleged congressional failure to read legislative proposals before voting raises no constitutional problem-nor any legal problem enforceable in the courts-but it surely raises questions of legitimacy, which in Congress's case may be responded to in the electoral process.
126. 5 U.S.C. § 706(2)(A) (2006).
127. See Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821, 874 (2003).
128. See Bressman & Vandenbergh, supra note 4, at 67-68 (quoting survey respondents who commented that OIRA became involved in rulemaking details and issues of lower political visibility while other White House offices became involved when potential political impact reached a minimum threshold).
129. see also David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 Geo. Wash. L. Rev. 1095, 1112-13 (2008).
130. Majority Staff of H.R. Subcommitt. on Investigations & Oversight, 111th Cong., Nipping IRIS in the Bud: Suppression of Environmental Science by the Bush Administration's Office of Management and Budget 5 (2009), available at http://democrats.science.house.gov/Media/file/Commdocs/hearings/2009/Ove rsight/11jun/IRIS_ Staff_Report.pdf.
131. See Copeland, supra note 4, at 22 ("Between 2001 and 2003, OIRA hired five new staff members in such fields as epidemiology, risk assessment, engineering, and health economics.").
132. Kagan, supra note 11, at 2353 ("[A]gency experts have neither democratic warrant nor special competence to make the value judgments-the essentially political choices-that underlie most administrative policymaking.").
133. See Exec. Order No. 12,044, 43 Fed. Reg. 12,661(Mar. 23, 1978) (Carter administration order providing for detailed regulatory analysis of rules with "major economic consequences").
134. Exec. Order No. 11,821, 39 Fed. Reg. 41,501, 41,501 (Nov. 27, 1974) (requiring agencies to prepare inflation impact statements).
135. Kagan, supra note 11, at 2276-77 (describing Nixon quality of life program).
136. see also Copeland, supra note 4, at 1-6 (summarizing early history of OMB review).
137. Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943, 947 (1980).
138. Exec. Order No. 12,291, 46 Fed. Reg. 13,193, 13,196 (Feb. 17, 1980).
139. 58 Fed. Reg. 51,735, 51,738 (Sept. 30, 1993).
140. 72 Fed. Reg. 2763 (Jan. 18, 2007).
141. Exec. Order No. 13,497, 74 Fed. Reg. 6113 (Jan. 30, 2009).
142. 58 Fed. Reg. at 51,736.
143. See Barron, supra note 86, at 1126.
144. E.g., Mashaw, supra note 33, Kagan, supra note 11. For some disagreement on the precise effect of executive review, compare Bagley & Revesz, supra note 47, with Bressman & Vandenbergh, supra note 4.
145. Sally Katzen, Correspondence, A Reality Check on an Empirical Study: Comments on "Inside the Administrative State", 105 Mich. L. Rev. 1497 (2007).
146. The OMB is an agency located within the Executive Office of the President; its primary function is to "assist the President in overseeing the preparation of the federal budget and to supervise its administration in Executive Branch agencies." OMB's Mission, www.whitehouse.gov/ omb/organization_role (last visited Jan. 17, 2010). OIRA, located within OMB, oversees, among other things, "[t]he implementation of government-wide policies and standards with respect to Federal regulations and guidance documents." Information and Regulatory Affairs, www.whitehouse.gov/omb/regulatory_affairs/default/ (last visited Jan. 17, 2010).
147. Exec. Order No. 12,866, 58 Fed. Reg. at 51,743 ("Except to the extent required by law, an agency shall not publish in the Federal Register or otherwise issue to the public any regulatory action that is subject to review [until OIRA has completed or waived its review].").
148. Kagan, supra note 11, at 2338.
149. OIRA Transparency Improves as Action Increases, OMB Watch, Feb. 25, 2002, http:// www.ombwatch.org/node/360.
150. Majority Staff of H.R. Subcomm. on Investigations & Oversight, 111th Cong., supra note 87, at 2.
151. OMB's Mission, supra note 99.
152. see also Information and Regulatory Affairs, supra note 99 (describing OIRA's function as "implementation of government-wide policies and standards").
153. Exec. Order No. 12,866 § 6(a)(3)(E)(iii), 58 Fed. Reg. at 51,742.
154. see also Kagan, supra note 11, at 2286-87 (noting that the executive order required OMB to log any written or oral communications regarding rulemaking involving outsiders).
155. Exec. Order No. 12,866 § 6(b)(4)(D), 58 Fed. Reg. at 51,743. OIRA is also to provide to the agency all written materials relevant to a rulemaking that it has received from outside groups. Id. at § 6(b)(3)(B)(ii), 58 Fed. Reg. at 51,743.
156. Kagan, supra note 11, at 2282-84.
157. Memorandum from Barack Obama, President of the U.S., to the Adm'r of the Envtl. Prot. Agency (Jan. 26, 2009), available at http://www.whitehouse.gov/the_press_office/ Presidential_Memorandum_EPA_Waiver/.
158. The Westlaw "Presidential Daily" database of presidential press conferences, announcements, and speeches issued by the White House Communications Office begins in January, 1993; its "Presidential Documents" database begins with executive order coverage in 1936, and covers all presidential documents published in the Federal Register beginning in 1984 (usually executive orders, proclamations, and trade agreement letters); and its coverage of the Weekly Compilation of Presidential Documents begins in Jan. 2000. I directed the following query to this database, aiming at documents dated after January 20, 1993 and before January 20, 2009: "direct the Administrator" OR "direct the Secretary" OR "Secretary is hereby directed" OR "Administrator is hereby directed" OR "Secretary is directed" OR "Administrator is directed." The search produced 247 relevant documents.
159. E.g., Kagan, supra note 11, at 2316 ("[Clinton's methods] purposefully trumpeted (indeed, sometimes exaggerated) the President's involvement in agency proceedings....").
160. John M. Broder, Obama to Toughen Rules on Emissions and Mileage, N.Y. Times, May 19, 2009, at A1.
161. At a hearing in which EPA Administrator Jackson was testifying, Wyoming Senator Barrasso suggested that the EPA's proposed finding that automotive greenhouse gases endangered public health and welfare was political and not founded on sound science, waving a document prepared by the OMB. Posting of John M. Broder to N.Y. Times Green Inc., E.P.A.'s Greenhouse Gas Proposal Critiqued, http://greeninc.blogs.nytimes.com/2009/05/12/epas-greenhouse-gas-proposa lcritiqued/?scp=1&sq=barrasso&st=cse (May 12, 2009, 15:39 EST).
162. OMB Director Peter Orszag responded that "OMB would have not concluded review, which allows the finding to move forward, if we had concerns about whether EPA's finding was consistent with either the law or the underlying science." Posting of Jesse Lee to The White House Blog, OMB Director Orszag Corrects the Record on the OMB & EPA, http://www.whitehouse.gov/blog/OMB-Director-Orszag-Corrects-the-Recordon -the-OMB-and-EPA/ (May 12, 2009, 16:31 EST). The EPA has now finalized the endangerment finding.
163. See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009). Again, this decision did not seem to be embraced closely by the White House. See Briefing by White House Press Secretary Robert Gibbs, Dec. 7, 2009, available at www.whitehouse.gov/the-press-office/briefing-white-house-presssecretary- robert-gibbs-12709 (describing EPA decision as the result of process "set in motion by a 2007 Supreme Court decision.... The President continues to strongly believe that the best way forward is through the passage of comprehensive energy legislation ....").
164. During the Reagan Administration, the OMB reportedly objected to approximately onethird of federal regulatory proposals. Oliver A. Houck, President X and the New (Approved) Decisionmaking, 36 Am. U. L. Rev. 535, 540-41 (1987).
165. See OIRA Transparency Improves as Action Increases, supra note 102.
166. Kagan, supra note 11, at 2287.
167. Significant agency rules are those subject to regulatory review, including rules with an annual economic effect of $100 million or more or a material adverse effect on particular sectors, as well as rules that raise "novel legal or policy issues." Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51,738 (Sept. 30, 1993).
168. see also Copeland, supra note 4, at 13 (percentage of rules approved consistent without change in 1994 was 53.4%; in 1995, 53.1%; in 1996, 41.4%; in 1997, 37.4%; in 1998, 36.1%; in 1999, 31.5%; and in 2000, 34.3%). Searches in the RegInfo.gov database disclose that the Clinton OMB reviewed 5,554 rules between January 21, 1993 and January 19, 2000, both economically significant and not economically significant. Of those rules, 2,898 were approved consistent without change, 2,214 were approved consistent with change, and the remainder were withdrawn or concluded in other ways. Historical Reports, http://www.reginfo.gov/public/do/ eoHistoricReport (last visitied Jan. 17, 2010) (search results on file with the author).
169. Some changes, of course, could have been initiated by internal managers at the agency rather than prompted by comments from the OMB. Future research might attempt to distinguish these categories with greater specificity.
170. Searches were conducted on the RegInfo.gov webpage. See Historical Reports, supra note 116. In addition, four rules were marked "statutory or judicial deadline," and two more were marked "emergency." Search results marked "'Consistent with Change' means OIRA has approved the regulation with changes from when it was received." OIRA Transparency Improves as Action Increases, supra note 102.
171. Historical Reports, supra note 116. OIRA reviewed over 4000 rules total during this time period.
172. An agency official's possible motivations for responding to White House pressure has been amply discussed by others and is beyond the scope of this Article. See, e.g., Strauss, supra note 4, at 713-15.
173. See OIRA Letters, http://www.reginfo.gov/public/jsp/EO/letters.jsp (last visited Jan. 26, 2010) (listing return and review letters along with prompt letters).
174. Daniel Lyons & Daniel Stone, President 2.0, Newsweek, Dec. 1, 2008, at 40, 41.
175. Memorandum from Barack Obama, President of the U.S., for the Heads of Executive Departments & Agencies on Transparency and Open Government (Jan. 21, 2009), available at http://www.whitehouse.gov/the_press_office/Transparency_and_Open_Governm ent.
176. Obama has been praised for his clearer stance on Freedom of Information Act disclosures, in which he stated that "[a]ll agencies should adopt a presumption in favor of disclosure ...." Memorandum from Barack Obama, President of the U.S., for the Heads of Executive Departments & Agencies on Freedom of Information Act (Jan. 21, 2009), available at http://www.whitehouse.gov/the_press_ office/FreedomofInformationAct/.
177. All data in this paragraph and this footnote are based on searches conducted at http://www.reginfo.gov/public/do/eoAdvancedSearchMain for the period January 20, 2009 through January 21, 2010. All search results are on file with the author. The percentages remain stable even when the first month of the Administration is excluded; several draft rules, submitted by the agencies prior to inauguration, were withdrawn from regulatory review during that period. Thus, even during the period February 20, 2009, through January 20, 2010, over 90% of economically significant rules were approved consistent with change or withdrawn. Fewer than 10%-7 economically significant rules out of 101 submitted for review-were approved without change. With respect to all rules undergoing review during the first year of the Obama Administration, including those that did not qualify as economically significant, fewer than 30% were approved without change. One hundred of 572 reviewed rules were approved without change, 409 were approved consistent with change, and 61 were withdrawn. Two rules were marked as subject to a statutory or judicial deadline; it is unclear whether they were modified during OIRA review. Even if the first month of the Obama Administration's regulatory review is excluded from these counts, fewer than 30% of reviewed rules were approved without change.
178. 40 C.F.R. § 232.2(6)(1) (2008).
179. Final Revisions to the Clean Water Regulatory Definitions of "Fill Material" and "Discharge of Fill Material," 67 Fed. Reg. 31,129 (May 9, 2002) (codified at 33 C.F.R. pt. 323; 40 C.F.R. pt. 232).
180. E.g., Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 430-31 (4th Cir. 2003) (describing problem of excess overburden from mountaintop mining). The approach was upheld by the Supreme Court in litigation challenging a mining company's proposal to use a mountain lake for disposal of its mining overburden. Coeur Alaska, Inc., v. Southeast Alaska Conservation Council, _ U.S._, 129 S. Ct. 2458 (2009).
181. E.g., Francis X. Clines, Judge Takes On the White House on Mountaintop Mining, N.Y. Times, May 19, 2002, § 1, at 118 (describing district court opinion vacating rule, later overturned by the Fourth Circuit).
182. A subcommittee of the Senate Environment and Public Works Committee held a hearing on the rulemaking on June 6, 2002. Clean Water Act: Review of Proposed Revisions to Section 404 Definitions of "Fill" and "Dredged Fill": Hearing Before the Subcomm. on Clean Air, Wetlands, and Climate Change of the S. Comm. on Environment and Public Works, 107th Cong. (2004), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_senate_ hearings&docid=f:83696.pdf.
183. Senators Lieberman and Jeffords wrote the President seeking reconsideration of the rule, while fifty-seven members of the House of Representatives wrote the EPA opposing the rule change. Clean Water: Jeffords, Lieberman Urge White House to Oppose New Mine Regs, Greenwire, May 3, 2002.
184. see also Clean Water: Bush Administration Proposes to Allow Mine Dumping, Greenwire, Apr. 26, 2002.
185. Clines, supra note 128.
186. 33 C.F.R. § 323.2 (2009); Final Revisions to the Clean Water Act Regulatory Definitions of "Fill Material" and "Discharge of Fill Material", 67 Fed. Reg. 31,120, 31, 140 (May 9, 2002) ("[T]his action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record."). Searches in the regulations.gov database uncovered no such document, though it is conceivable it may be present on request in the Army Corps of Engineers' Washington, D.C. office. See Proposed Revisions to the Clean Water Act Regulatory Definitions of "Fill Material" and "Discharge of Fill Material", 65 Fed. Reg. 21,292, 21,292 (proposed Apr. 20, 2000) (to be codified at 33 C.F.R. pt. 323; 40 C.F.R. pt. 232) (listing phone number to call to inspect supporting documents and comments filed on the rule).
187. Primary National Ambient Air Quality Standards for Nitrogen Dioxide, 75 Fed. Reg. 6474 (Feb. 9, 2010) (to be codified at 40 C.F.R. pt. 50, 58, app. S).
188. See Primary National Ambient Air Quality Standards for Nitrogen Dioxide, 75 Fed. Reg. at 6508 (noting that roughly 167 monitoring devices could be placed if metropolitan areas of 350,000 were covered, compared with 126 if the 500,000 population threshold were used);
189. Matthew Madia, White House Meddling in EPA Rule on Air Pollution Monitors, OMB Watch, Jan. 28, 2010, http://ombwatch.org/node/10733.
190. Searching the hundreds of documents in the regulations.gov rulemaking docket also uncovered no further information besides the e-mails referenced in the OMB Watch article, Madia, supra note 132.
191. 549 U.S. 497 (2007).
192. See John Shiffman & John Sullivan, An Eroding Mission at EPA, Phila. Inquirer, Dec. 7, 2008, at A1, available at http://www.philly.com/philly/inquirer/online_extras/35668114.html.
193. Felicity Barringer, White House Refused to Open Pollutants E-Mail, N.Y. Times, June 25, 2008, at A15;
194. Shiffman & Sullivan, supra note 135 ("White House aides ... called Johnson and asked him to take it back.").
195. Barringer, supra note 136. The Bush Administration EPA eventually published an Advance Notice of Proposed Rulemaking on July 30. Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354 (proposed July 30, 2008) (to be codified at 40 C.F.R. ch. 1);
196. see also Shiffman & Sullivan, supra note 135 ("Johnson instead echoed the White House's wishes and called for more study on global warming, delaying any dramatic government action until the next administration took office.").
197. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496,66,496 (Dec. 15, 2009) (to be codified at 40 C.F.R. pt. 1).
198. See Copeland, supra note 4, at 17 ("[S]ome agencies have indicated that they do not even propose certain regulatory provisions because they believe that OIRA would find them objectionable.").
199. E.g., Houck, supra note 113, at 544 n.54 ("An examination of the existing record makes it clear that the claim that OMB does not influence or control many or all agency decisions is simply untenable.").
200. U.S. Gov't Accountability Office, Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews, GAO-09-205, at 6 (2009).
201. U.S. Gen. Accounting Office, Rulemaking: OMB's Role in Reviews of Agencies' Draft Rules and the Transparency of Those Reviews, GAO-03-929, at 5 (2003).
202. Copeland, supra note 4, at 17. In 2003, the GAO stated: In some cases, OIRA also reviews drafts of agencies' rules before formal submission ... OIRA indicated that these informal reviews are increasing, and that reviews can have a substantial effect on the agencies' regulatory analysis and the substance of the rules ... . OIRA also informally consulted with agencies and reviewed agencies' draft rules before formal submission during previous administrations. U.S. Gen. Accounting Office, supra note 142, at 7-8.
203. Houck, supra note 113, at 540 (quoting Reagan Administration OMB Deputy Administrator Tozzi).
204. See supra text accompanying notes 40-43.
205. E.g., Areas Unsuitable for Mining; Areas Designated by Act of Congress; Applicability of the Prohibitions of the Surface Mining Act to the Surface Impacts of Underground Coal Mining, 53 Fed. Reg. 52,374, 52,381 (proposed Dec. 27, 1988) (to be codified at 30 C.F.R. pt. 761) (suggesting that prohibition should be read to cover only "subsidence causing material damage" as a relevant "surface impact").
206. See Interpretative Rule Related to Subsidence Due to Underground Coal Mining, 64 Fed. Reg. 70,838, 70,839, 70,843 (Dec. 17, 1999) (codified at 30 C.F.R. pt. 761) (stating that the rule issued following notice and comment);
207. Notice of Inquiry, 56 Fed. Reg. 33,170, 33,171 (July 18, 1991) (describing solicitor's opinion).
208. See Interpretive Rule Related to Subsidence Due to Underground Coal Mining, 64 Fed. Reg. at 70,843 (mentioning "environmental values" and "encouraging longwall mining;" stating that "this interpretation best balances all relevant policy considerations").
209. See id. at 70,849 (discussing the relationship of interpretation to economic feasibility of longwall mining)
210. see also Matt Spangler, Supreme Court punts case, affirming Interior changes to coal mining rule, Inside Energy, Mar. 1, 2004, at 6.
211. See generally Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 Admin. L. Rev. 181, 184 (1986) ("[T]rade-offs [belong in the] hands of officials who are politically accountable; and they are rightly subject to public scrutiny and review during the regulatory process.").
212. Interpretative Rule Related to Subsidence Due to Underground Coal Mining, 64 Fed. Reg. at 70,863 (noting that rule raised such issues and accordingly was subject to regulatory review).
213. The rule stated, "This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866," and further noted that although the rule is not considered economically significant, it "does raise novel legal and policy issues," within the meaning of Executive Order 12866. Id. at 70,863. A search of OIRA's website also uncovered no information on regulatory oversight of this rule, although the conclusion action was marked "Consistent with Change." See supra note 118 (advanced search performed using rulemaking identification number of 1029-AB82).
214. Clean Air Act, 42 U.S.C. § 7543(a) (2000).
215. Id. at § 7543(b)(1)(B).
216. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156, 12,160 (Mar. 6, 2008).
217. See, e.g., Shiffman & Sullivan, supra note 135.
218. Nina A. Mendelson, The California Greenhouse Gas Waiver Decision and Agency Interpretation: A Response to Professors Galle and Seidenfeld, 57 Duke L.J. 2157, 2164 n.44 (2008) (reprinting Johnson's congressional testimony).
219. Shiffman & Sullivan, supra note 135 (quoting former Deputy Associate Administrator Jason Burnett describing Johnson's experience with the White House).
220. Kathryn Watts also gives the example of the Clinton Administration tobacco rule issued by the FDA, which President Clinton announced from the Rose Garden, but which made no mention of presidential preferences or executive supervision. Watts, supra note 12, at 4.
221. Sample searches I performed included: TI ("RULES AND REGULATION") & (REVIEW W/5 (OMB "OFFICE OF MANAGEMENT AND BUDGET" "OFFICE OF INFORMATION AND REGULATORY AFFAIRS" OIRA) /P (REVIS! CHANG! PREFE!)). The same search was repeated for documents with a title of "proposed rule" or "proposed rules." I also searched for the following terms in proposed rule and final rule documents: directive /s "presiden! or presiden! /p priorit!". Each of the small number of documents turned up by these searches was then reviewed individually for relevance. I have also read widely in Federal Register statements, but it is certainly possible that my searching is incomplete.
222. The GAO documented its difficulty-similar to my own-in searching electronic agency dockets for the sixteen rulemaking case studies it analyzed in a 2009 report. U.S. Gov't Accountability Office, supra note 141, at 34 ("[[U]sing a variety of searching strategies], [GAO] found it more difficult to find agencies' documentation of OIRA's regulatory reviews, primarily because of difficulties using the search capabilities in the centralized electronic Federal Docket Management System under www.regulations.gov.). In addition, a member of the public is less likely to resort to searching through the electronic docket if an agency's Federal Register notice has not mentioned that changes were made during the OIRA review process.
223. Agencies also have occasionally mentioned, almost in passing, that they are taking action in response to a presidential directive to consider an issue. For example, in 1982, the EPA announced that it was dropping plans to issue noise control regulations under the Noise Control Act for truck transport refrigeration units, power lawn mowers, and a few other products. The agency stated that it was reevaluating its "objectives and priorities ... giving careful consideration to existing Federal budgetary constraints and the attendant effects on these activities," and that it was doing so "[i]n response to the President's directive." Proposed Withdrawal of Products From the Agency's Reports Identifying Major Noise Sources and Withdrawal of Proposed Rules, 47 Fed. Reg. 54,108, 54,109 (proposed Dec. 1, 1982) (to be codified at 40 C.F.R. pts. 204, 205)
224. see also Average Fuel Economy Standards Passenger Cars and Light Trucks Model Year 2011, 74 Fed. Reg. 14,196, 14,440 (Mar. 30, 2009) (referencing a presidential directive to proceed only with CAFE standards for model year 2011). The fuel economy rule discussed in the text is unusual in the specificity of its references to presidential priorities.
225. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,925 (proposed Sep. 8, 2003).
226. Id. at 52,930.
227. Id.
228. Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (stating that relied-on reasons were "divorced from the statutory text").
229. Air Quality, Chemical Substances, and Respiratory Protection Standards, 69 Fed. Reg. 67,681, 67,686 (proposed Nov. 19, 2004). I am indebted to Kathryn Watts's work in identifying this document. As Watts discusses, this agency statement was a response to a decision of the D.C. Circuit striking down an earlier proposed rule withdrawal as inadequately reasoned. Int'l Union, United Mine Workers v. U.S. Dep't of Labor, 358 F.3d 40 (D.C. Cir. 2004).
230. Average Fuel Economy Standards [for] Passenger Cars and light Trucks Model Year 2011, 74 Fed. Reg. 14,196, 14,199 (Mar. 30, 2009).
231. Id. at 14,205.
232. Id. at 14,395-96.
233. Id. at 14,442 (OMB review)
234. id. at 14,213 (discussing early cooperation with other agencies).
235. E.g., Edley, supra note 10, at 190-91 ("The failure of courts to demand disclosure encourages secret politics, pretermitting the process of continuing, between-elections political accountability.").
236. Rubin, supra note 25.
237. See Kagan, supra note 11, at 2333.
238. But see Philip J. Harter, Commentary, Executive Oversight of Rulemaking: The President Is No Stranger, 36 Am. U. L. Rev. 557, 565 (1987) (suggesting it does not matter if "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").
239. See Edley, supra note 10, at 189.
240. E.g., Farina, supra note 32, at 995-96
241. Mendelson, supra note 24, at 619. For one example of candidate vagueness regarding prospective agency appointees, both Barack Obama and John McCain indicated in a 2008 presidential campaign debate that if elected, each might choose Warren Buffett as Treasury Secretary, despite the lack of any showing of interest on Buffett's part. See Posting of Cyrus Sanati to NYTimes DealBook Blog, Asked About Treasury Post, Buffett Just Smiles, http://dealbook.blogs.nytimes.com/2008/10/08/both-candidates-suggest-buf fett-for-treasury-post/ (Oct. 8, 2008, 13:06 EST).
242. Kagan, supra note 11, at 2337.
243. Bressman, supra note 27, at 503-04.
244. E.g., Katzen, supra note 98, at 1503 ("[I]t is the product of the decision-making, not the process of the decision-making, that is the key to accountability-however desirable it would be to know who said what to whom in the oval office (or in the office of a presidential aide).").
245. E.g., Bressman, supra note 27, at 506 ("[T]he President has the incentive and ability to hide control.").
246. Id. at 508-09.
247. Shiffman & Sullivan, supra note 135 ("Johnson declined to directly talk about White House involvement. He said again and again, 'The decision was mine and mine alone.'").
248. See supra note 112 and accompanying text (discussing lukewarm White House reactions to both proposed and final endangerment findings).
249. Katharine Q. Seelye, President Distances Himself From Global Warming Report, N.Y. Times, June 5, 2002, at A23.
250. Barringer, supra note 136 (quoting White House spokesman Tony Fratto).
251. C.M. Cameron Lynch, Note, Environmental Awareness and the New Republican Party: The Re-Greening of the GOP?, 26 Wm. & Mary Envtl. L. & Pol'y Rev. 215, 222 (2001).
252. Reagan successfully distanced himself as well from the Agriculture Department's 1981 decision, never implemented, to meet budget restrictions by substituting ketchup for vegetables in subsidized school lunches. See Howell Raines, Reagan Beats No Retreat in War on Bureaucracy, N.Y. Times, Oct. 12, 1981, at A14. He did so despite the fact that the leading official advocating the plan was his political appointee. See id. Earlier presidencies provide numerous other examples. President Truman famously stated about President Eisenhower's transition: "He'll sit right here ... and he'll say do this, do that!! And nothing will happen. Poor Ike-it won't be a bit like the Army." Mendelson, supra note 24, at 559 (quoting Margaret Truman, Harry S. Truman 551-52 (1973)) (internal quotations omitted). About his own presidency, "Truman complained, 'I thought I was the president, but when it comes to these bureaucrats, I can't do a damn thing.'" Kagan, supra note 11, at 2272. Presidents Nixon and Carter both viewed themselves as being surrounded by hostile and unresponsive bureaucracies. Id. at 2272-73. Michael Herz describes an amusing example of the President's separateness from other portions of the executive branch: "[O]ne newsletter reported [with respect to a dispute over an EPA rule] that 'many sources ... are convinced that [President George H.W.] Bush will side with the White House.'" Michael Herz, Imposing Unified Executive Branch Statutory Interpretation, 15 Cardozo L. Rev. 219, 219 (1993) (quoting President to Resolve EPA, White House Deadlock Over CAA Permit Reg., This Week, Inside EPA (Wash., D.C.), May 1, 1992, at 3-4).
253. Kagan argues that President Clinton may have been something of an exception in his desire to take credit for selected agency actions. But she declines to suggest that Clinton "never influenced agency decisions in ways designed to avoid leaving fingerprints." Kagan, supra note 11, at 2333.
254. See Verkuil, supra note 91, at 951 ("[The] fear is that government regulation will be coopted by private groups through the intercession of the White House."). For a recent accusation along these lines, see White House Climate Change Policy-Delay, Delete, and Deny, OMB Watch, July 22, 2008, http://www.ombwatch.org/node/3741 (alleging that "the oil industry, most notably ExxonMobil, drove the administration's decision" to pressure EPA not to take action regulating greenhouse gases).
255. See McGarity, supra note 8, at 451 ("[S]ecret interactions between the agencies and the White House or OMB staff in no way increase overall governmental accountability, because the electorate cannot distinguish those policies attributable to the agencies from those attributable to the President and his aides.").
256. See, e.g., B. Dan Wood & Richard W. Waterman, Bureaucratic Dynamics: The Role of Bureaucracy in a Democracy 146 (1994) ("On the vast majority of issues dealt with by the bureaucracy, citizens have no specific demands or needs; they operate in a vague, impressionistic world ... .")
257. Mendelson, supra note 24, at 617.
258. See Mendelson, supra note 24, at 628-41. This is why work focusing purely on the extent to which political accountability makes agencies more responsive to majoritarian views is incomplete. E.g., Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 58 (2008) (arguing that an insulated bureaucracy can reduce variance in policy outcomes and thus make policy more responsive to majoritarian preferences, because an elected politician's views are unlikely to deviate from majority views). My argument suggests that transparency ought to be a greater focus, rather than the extent of pure political control, because transparency is needed to generate a dialogue with voters that will result in the formation of preferences and a greater understanding of policy decisions.
259. See supra text accompanying notes 167-170.
260. Clean Air Act § 307, 42 U.S.C. § 7607(d)(4)(B)(ii)(2006) (requiring proposed and final rule drafts submitted to OMB, as well as written comments from OMB and other agencies, to be entered on agency docket).
261. Administrative Procedure Act § 553, 5 U.S.C. § 553 (2006).
262. 42 U.S.C. § 7607(d)(4)(B)(ii).
263. See supra text accompanying notes 105-106 (describing disclosure requirements)
264. see also Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737, 784-87 (2004) (reporting severe undercompliance by agencies with Executive Order 13,132, on federalism, and suggesting that "[p]erhaps the Office of Management and Budget... has not been particularly interested in compelling agencies [to comply with the 'federalism'] executive orders").
265. E.g., Kagan, supra note 11, at 2372 (arguing that a "sounder view" of both Chevron and arbitrary and capricious doctrines would take account of presidential involvement).
266. Watts, supra note 12, at 75
267. see Edley, supra note 10, at 192 ("[Developing judicial doctrine] requires a substantial number of cases that squarely address the politics issues. Only leadership can overcome the chicken-and-egg problem.").
268. See supra text accompanying notes 179-189.
269. See 5 U.S.C. § 552 (2006). See generally Stephen G. Breyer et al., Administrative Law and Regulatory Policy 685 (6th ed. 2006) ("The purpose of privilege is to preserve free and frank discussions within government, which would be hindered if opinions and recommendations advanced during the deliberative process could be obtained by the public.")
270. Cary Coglianese, The Transparency President? The Obama Administration and Open Government 13 (Univ. Pa. Law Sch., Public Law and Legal Theory Research Paper No. 09-18) (expressing concern about undue transparency that "officials will not engage in as probing and self-critical forms of deliberation"), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433815.
271. Some have suggested that greater disclosure of executive influence might expose agencies to more pressure from special interest groups, because an agency might have to reveal that it did not take a position consistent with the one desired by the interest group. Past vagueness regarding the influence of executive oversight in rulemaking perhaps has allowed the agency to avoid blame for not agreeing with an interest group. On the other hand, more clarity regarding the role of executive oversight in value-laden decisions made by an agency might reduce special interest group pressure on agencies, since it would be clearer that agencies are not in a position to deliver on any sort of promise. It might in turn shift that pressure to OIRA.
272. E.g., Bressman, supra note 27, at 510-11 (discussing a "new kind of boilerplate"-a presidential seal of approval disconnected from genuine presidential participation in the decision)
273. Houck, supra note 113, at 547 ("The result of disclosure will be paperwork that sanitizes the messages to avoid reversible error.").
274. E.g., Mendelson, supra note 195 (noting Executive Order 13,132's lack of impact on agency considerations of federalism issues).
275. See Cass Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29, 78 (1985) ("[R]equiring justifications does serve an important prophylactic function... [It] should improve representative politics by ensuring that the deliberative process is focused on those purposes and the extent to which the classifications serve them....").
276. Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L.J. 1277, 1291 (2001)
277. see also Jon Elster, Deliberation and Constitution Making, in Deliberative Democracy 97, 111 (Jon Elster ed. 1998)
278. Cf. Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223, 227 (1986) (arguing that even if Congress's claims of public reasons for laws are hypocritical, interpreting them to effectuate those goals will make legislation more publicregarding overall). Similarly, disclosure also might be less than candid, which might lead to greater public confusion rather than public accountability. This type of disclosure, however, would undoubtedly not comply with statutory terms.
279. The only exception was a rulemaking "specifically authorized by the head of the agency." See Exec. Order No. 13,422, 72 Fed. Reg. 2763, 2764 (Jan. 23, 2007) ("Unless specifically authorized by the head of the agency, no rulemaking shall commence nor be included on the Plan without the approval of the agency's Regulatory Policy Office...."), repealed by Exec. Order No. 13,497, 74 Fed. Reg. 6113 (Feb. 4, 2009).
280. 401 U.S. 402, 420 (1971).
281. Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (permitting partial discovery regarding agency's compliance with procedural requirements). Other decisions of the D.C. Circuit similarly contemplate discovery from an agency under some circumstances, though arguably in a more limited fashion than under Esch.
282. See, e.g., IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997) (holding plaintiffs could not obtain discovery of an agency because plaintiffs did not show agency "failed to examine all relevant factors or to adequately explain its grounds for decision, or that the agency acted in bad faith or engaged in improper behavior in reaching its decision").
283. While development of a precise discovery standard is beyond the scope of this Article, one possibility would be to authorize extensive discovery only if there are allegations of bad faith, improper behavior, or suppression of documents, e.g., Comm. for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C. Cir. 1971), and otherwise to permit an agency to submit an affidavit detailing its compliance with such a statute.
284. see, e.g., Trentadue v. FBI, 572 F.3d 794 (10th Cir. 2009) (permitting agency to demonstrate Freedom of Information Act compliance through affidavit submissions).
285. See Sierra Club v. Costle, 657 F.2d 298, 407 (D.C. Cir. 1981) ("Where the President himself is directly involved in oral communications with Executive Branch officials, Article II considerations-combined with the strictures of Vermont Yankee-require that courts tread with extraordinary caution in mandating disclosure beyond that already required by statute.").
286. The White House reportedly asserted executive privilege in response to a congressional subpoena seeking documents "relating to the E.P.A.'s handling of recent climate-change and airpollution decisions." Barringer, supra note 136.
287. see also Letter from Michael B. Mukasey, Attorney Gen. of the U.S., to George W. Bush, President of the U.S. (June 19, 2008), available at http:// www.justice.gov/olc/2008/ozonecalwaiveragletter.pdf (discussing privileges asserted by the EPA and the Justice Department). The House Government Reform Committee prepared a draft memorandum arguing that no such privilege is appropriate with respect to communications between OIRA and the agency.
288. See Draft Report of the Committee on Oversight and Government Reform, U.S. House of Representatives, Regarding the Bush Administration's Abuse of Power in Asserting Executive Privilege in Response to Committee Subpoenas to Stephen Johnson, Administrator, Environmental Protection Agency, and Susan Dudley, Administrator, White House Office of Management and Budget (Oct. 14, 2008), available at http://www2.grist.org/gristmill/images/user/6337/ oversightEP.pdf.
289. Indeed, while the question is not settled, it seems unlikely that an executive privilege claim would succeed with respect to communications from OIRA to the agency. Such a claim would not likely qualify as a privileged "presidential communication," since it is not a communication to or by the President or a communication made for the purpose of assisting a direct decision made by the President. See In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). In addition, the communication might not be held to relate to a quintessential Article II function, such as the use of the appointments power. The deliberative process privilege, a common law privilege, would seem to encompass OIRA communications with an agency, but such a privilege likely would more readily yield to statutory override, representing the congressional determination that access is appropriate. See id. at 737.
290. See 5 U.S.C. § 706 (2006).
291. Heckler v. Chaney, 470 U.S. 821 (1985).
292. Id. at 831.
293. Id. at 842 (Marshall, J., concurring).
294. Id. at 83.
295. Influence from Congress is beyond the scope of this Article, though requiring disclosure of such influence is worth considering.
296. This is Kagan's recommendation. See Kagan, supra note 11, at 2364.
297. See supra text accompanying notes 63-65 (discussing Massachusetts v. EPA).
298. It is an interesting question whether an express presidential preference to help a particular organized interest group could be a legitimate reason to overturn an agency decision. Again, the answer would seem to depend on the characteristics of the particular statute at hand. Beyond statutory requirements, the question of legitimacy is one that the electorate seems better suited to answer than the judiciary.
299. Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
300. Watts argues that increased deference to political reasons could be a good thing because it would offset excessively intrusive judicial review of agency decisions. Some have argued that intrusive judicial review has caused ossification of agency rulemaking procedures. Watts, supra note 12, at 41-42. It is unclear, however, that judges would be deferring on the same sorts of issues on which they were previously too intrusive. Technical issues, for example, would presumably continue to be reviewed in the same manner.
301. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803) ("[The Secretary of State]... is to conform precisely to the will of the President.... The acts of such an officer, as an officer, can never be examinable by the courts.")
302. Discussed in Peter L. Strauss, Legislation That Isn't- Attending to Rulemaking's Democracy Deficit 98 Cal L. Rev._(forthcoming 2010) (manuscript at 3-4), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1486221.
303. As Kevin Stack has observed, the extent to which reasons for a President's action should be subjected to judicial review is a contested question. In his article seeking a constitutional basis for the Chenery requirement that an agency decision be evaluated only on the basis of the reasons the agency itself has offered, Stack reasons that although the President is "not immune from the constitutional principles that govern an agency's exercise of delegated power," the "exceptionalism" of the President's status would "call into question the basis for importing a constraint from the agency context."
304. See Stack, supra note 27, at 1017-19.
305. See Kagan, supra note 11, at 2382.
306. Cf. State Farm, 463 U.S. at 59 (Rehnquist, J., dissenting) ("As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration.").
307. 42 U.S.C. § 7409(b)(1) (2006).
308. 657 F.2d 298 (D.C. Cir. 1981).
309. Id. at 387-91.
310. 459 F.2d 1231 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972).
311. Id. at 1245-49.
312. See also Edley, supra note 10, at 176-77 n.12 (describing judicial and congressional debate over "political interference").
313. 549 U.S. 497 (2007).
314. See Watts, supra note 12, at 13 ("[E]ncouraging agencies to dislose political factors could help to take some of the pressure off of science, creating a more effective separation between science and politics.").
315. For nonadherents to the unitary executive theory, relying on such a presidential statement seems illegitimate because it appears that the President has gone beyond influencing or supervising the agency's decision and made the decision in lieu of the agency.
316. E.g., Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 635 (1995) ("The act of giving a reason... is an exercise in generalization.").
317. 470 U.S. 821, 831 (1985).