Who's in charge? Does the president have directive authority over agency regulatory decisions?

Fordham Law Review

Volumn 79, Issue 6, 2011, Pages 2487-2540

  Percival, Robert V ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 79959913028     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (536)

1. See, e.g., Clean Air Act § 109, 42 U. S. C. § 7409 (2006) (specifying that the Administrator of EPA shall promulgate and regularly review and revise national ambient air quality standards for air pollutants).
2. The history of presidential review of rulemaking is comprehensively reviewed in Robert V. Percival, Checks Without Balance: Executive Office Oversight of the Environmental Protection Agency, 54 LAW & CONTEMP. PROBS. 127 (1991) [hereinafter Percival, Checks Without Balance]
3. and Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L. J. 963 (2001) [hereinafter Percival, Presidential Management].
4. Exec. Order No. 13, 563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
5. See id. § 1 (b), 76 Fed. Reg. at 3821.
6. President Obama's executive order supplements and reaffirms the existing regulatory review program established by President Bill Clinton under Executive Order 12, 866, 3 C. F. R. 638 (1994), and continued by President George W. Bush.
7. See Exec. Order No. 13, 422, 3 C. F. R. 191 (2008);
8. Exec. Order No. 13, 258, 3 C. F. R. 204 (2003).
9. See, e.g., STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008).
10. See id.
11. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2330(2001).
12. See Percival, Presidential Management, supra note 2.
13. See CALABRESI & Yoo, supra note 5.
14. 487 U. S. 654, 697-734 (1988) (Scalia, J., dissenting).
15. Id. at 696-97 (majority opinion).
16. CALABRESI & YOO, supra note 5.
17. Id. at 3-4.
18. See generally Wiener v. United States, 357 U. S. 349 (1958);
19. Humphrey's Executor v. United States, 295 U. S. 602 (1935).
20. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3151(2010).
21. Id. at 3148.
22. The Court held that dual for-cause limitations on the removal of members of the Public Company Accounting Oversight Board (PCAOB) unconstitutionally infringed on presidential power, but it declined an invitation to invalidate PCAOB on constitutional grounds.
23. Id. at 3138.
24. See generally Kagan, supra note 7.
25. Id. at 2328.
26. See, e.g., Percival, Presidential Management, supra note 2, at 965;
27. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 25(1995);
28. Kevin M. Stack, The President's Statutory Power To Administer the Laws, 106 COLUM. L. REV. 263, 270-99 (2006);
29. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 649(1984).
30. See Percival, Presidential Management, supra note 2, at 965 n. 7.
31. See Robert V. Percival, Rediscovering the Limits of the Regulatory Review Authority of the Office of Management and Budget, 17 ENVTL. L. REP. 10, 007, 10, 019-20 (1987).
32. Percival, Presidential Management, supra note 2.
33. Id. at 1003-06.
34. 130 S. Ct. 3138 (2010).
35. U. S. CONST, art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America.").
36. CALABRESI & YOO, supra note 5, at 34.
37. U. S. CONST, art. II, § 2, cl. 2 (giving the President power to appoint officers to offices "which shall be established by Law.").
38. JAMES HART, THE ORDINANCE MAKING POWERS OF THE PRESIDENT OF THE UNITED STATES 189 (1925).
39. U. S. CONST, art. I, § 8, cl. 18.
40. JOHN C. MILLER, THE FEDERALIST ERA: 1789-1801, at 26-27 (1960).
41. U. S. CONST, art. II, § 2, cl. 1.
42. See generally Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021 (2006).
43. MARGARET C. S. CHRISTMAN, THE FIRST FEDERAL CONGRESS: 1789-1801, at 136 (1989).
44. See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the Second Half-Century, 26 HARV. J. L. & PUB. POL'Y 667, 746-58 (2003).
45. The President and Accounting Officers, 1 Op. Att'y Gen. 624, 625(1823).
46. Id. at 626 (emphasis omitted).
47. See Percival, Presidential Management, supra note 2, at 977.
48. Relation of the President to the Executive Departments, 7 Op. Att'y Gen. 453, 469-70 (1855).
49. Id. at 468.
50. 5 U. S. (1 Cranch) 137 (1803).
51. 37 U. S. (12 Pet.) 524 (1838).
52. Marbury, 5 U. S. (1 Cranch) at 165-66.
53. Id. at 166.
54. Kendall, 37 U. S. (12 Pet.) at 613.
55. Id.
56. U. S. CONST, art. II, § 1, cl. 1.
57. Kendall, 37 U. S. (12 Pet.) at 610.
58. Stack, supra note 20, at 273.
59. See generally Kagan, supra note 7.
60. Id. at 2327.
61. See id.
62. See id. at 2327-28.
63. See, e.g., Comprehensive Environmental Response, Compensation & Liability Act, 42 U. S. C. §§ 9601-9675 (2006). Section 104 authorizes the President to direct actions responding to releases of hazardous substances, while section 102 requires the Environmental Protection Agency (EPA) Administrator to determine what quantities of hazardous substances trigger response authorities.
64. Percival, Presidential Management, supra note 2, at 1008.
65. Stack, supra note 20, at 276-84.
66. Id. at 278, 282.
67. Id. at 284.
68. Percival, Checks Without Balance, supra note 2.
69. Percival, Presidential Management, supra note 2.
70. CALABRESI & Yoo, supra note 5.
71. Id. at 4.
72. Id. at 8.
73. See, e.g., id. at 8 ("While it is certainly true that presidential control over the executive branch is a complex phenomenon, this book seeks to show that it would be a great mistake to underestimate the importance of the removal power.").
74. Id. at 342.
75. Id. at 13.
76. See Percival, Checks Without Balance, supra note 2, at 129-38.
77. CALABRESI & Yoo, supra note 5, at 342 n. 19;
78. Erik D. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12, 291, 4 VA. J. NAT. RESOURCES L. 1, 9 & n. 19 (1984) (citing Interview with Jim Tozzi, former Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA) Deputy Administrator (June 14, 1983)).
79. Dan Davidson, Jim Tozzi: Nixon's "Nerd" Turns Regulations Watchdog, FEDERALTIMES. COM (NOV 11, 2002), http://www.thecre.com/pdf/20021111- fedtimestozzi.pdf. During the Johnson Administration, Tozzi was employed by the Office of Budget's Systems Analysis Group that argued for expanding reviews of the U. S. Army Corps of Engineers' budget to include review of Corps regulations.
80. See Jim Tozzi, Commentary of Dr. Alan Schmid's Paper, THECRE. COM, http://www.thecre.com/ombpapers/TozziAnalOfEconomicsOfRulemaking.htm (last visited Apr. 20, 2011). The members of the Office of Budget's Systems Analysis Group later helped establish and manage President Nixon's Quality of Life Review process, which was the first presidential regulatory review program.
81. See id.
82. GEORGE C. EADS & MICHAEL FIX, RELIEF OR REFORM? REAGAN'S REGULATORY DILEMMA 47-48 (1984).
83. See Christopher S. Yoo et al., The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601, 658-59 (2005).
84. See id.
85. MARC K. LANDY, MARC J. ROBERTS & STEPHEN R. THOMAS, THE ENVIRONMENTAL PROTECTION AGENCY: ASKING THE WRONG QUESTIONS 37 (1990).
86. See Yoo et al., supra note 71, at 659.
87. EADS & FIX, supra note 70, at 48.
88. See Yoo et al., supra note 71, at 659.
89. The stated purpose of the National Industrial Pollution Control Council (NIPCC) was to '"allow businessmen to communicate regularly with the President, the Council on Environmental Quality and other governmental officials and private organizations'" with respect to regulatory initiatives. Percival, Checks Without Balance, supra note 2, at 130
90. (quoting Statement on Establishing the National Industrial Pollution Control Council, 2 PUB. PAPERS 344, 344 (Apr. 9, 1970)). NIPCC's meetings were not publicly announced and were closed to the public.
91. See id. at 168-70. For example, after discovering that NIPCC would be meeting on October 14, 1970, representatives of ten consumer and environmental groups showed up at the Department of Commerce and sought to attend the meeting. The Commerce Department not only refused to allow them to attend the meeting, but it also refused their request to provide a transcript of it.
92. See E. W. Kenworthy, U. S. Pollution Control Panel Bars Environmental and Consumer Observers, N. Y. TIMES, Oct. 15, 1970, at 40. Commerce Department officials refused reporters' request for a press conference.
93. See Percival, Checks Without Balance, supra, at 169. The NIPCC, however, subsequently released summary minutes of some of its meetings.
94. See Implementation of the Clean Air Act Amendments of 1970-Part 2: Hearings Before the Subcomm. on Air & Water Pollution of the S. Comm. on Pub. Works, 92d Cong. 583-94 (1972) [hereinafter Hearings]. These summaries, however, amounted to little more than "a skeletal outline of the issues discussed, evidently thoroughly sanitized."
95. William H. Rodgers, Jr., The National Industrial Pollution Control Council: Advise or Collude?, 13 B. C. INDUS. & COM. L. REV. 719, 727(1972). The members of the NIPCC apparently edited the draft summaries extensively "with the consequence that all damaging, and some useful, information has disappeared from the public record."
96. Id.
97. Exec. Order No. 11, 523, 3 C. F. R. 117 (1966-1970).
98. EADS & FIX, supra note 70, at 49.
99. Percival, Checks Without Balance, supra note 2, at 135.
100. See JOHN QUARLES, CLEANING UP AMERICA: AN INSIDER'S VIEW OF THE ENVIRONMENTAL PROTECTION AGENCY 58-76 (1976).
101. Id. at 68-70.
102. Hearings, supra note 77, at 325 (testimony of William Ruckelshaus).
103. Id.
104. Id. at 338.
105. See Percival, Checks Without Balance, supra note 2, at 137.
106. QUARLES, supra note 81, at 117-19.
107. Id. at 119.
108. Nomination of Russell E. Train: Hearing Before the S. Comm. on Pub. Works, 93rd Cong. 3 (1973) ("I assure you that I, as Administrator, will make the final decisions. I will seek and welcome comments and suggestions both from within Government and from the public, but the final decisions will be mine." (statement of Russell E. Train)).
109. Id.
110. Id. at 8 (statement of Russell E. Train).
111. See QUARLES, supra note 81, at 117-42.
112. Id. at 138.
113. CALABRESI & YOO, supra note 5, at 348.
114. Calabresi and Yoo also maintain that President Nixon's resignation showed that an independent counsel law is not needed. Id. at 355. Yet Nixon's downfall was the direct result of a special prosecutor who effectively could not be fired by the President seeking and obtaining White House tapes that proved the President's culpability in Watergate. Had Justice Scalia's position in Morrison v. Olson prevailed, the only effective check on presidential wrongdoing would be at the ballot box, which was no check at all on a President who had begun his second and last term.
115. 5 U. S. C. § 553 (c) (2006);
116. see George C. Eads, White House Oversight of Executive Branch Regulation, in SOCIAL REGULATION: STRATEGIES FOR REFORM 177, 192-93 (Eugene Bardach & Robert A. Kagan eds., 1982).
117. See Council on Wage and Price Stability Act, Pub. L. No. 93-387, 88 Stat. 750 (1974).
118. See Percival, Checks Without Balance, supra note 2, at 139-40.
119. Congress confirmed CWPS's authority to "intervene and otherwise participate on its own behalf in rulemaking, ratemaking, licensing and other proceedings before any of the departments and agencies of the United States, in order to present its views as to the inflationary impact that might result from the possible outcomes of such proceedings." Pub. L. No. 94-78 § 4, 89 Stat. 411, 411(1974);
120. see NAT'L ACAD, OF PUB. ADMIN., PRESIDENTIAL MANAGEMENT OF RULEMAKING IN REGULATORY AGENCIES 9 (1987);
121. Office of Management and Budget Plays Critical Part in Environmental Policymaking, Faces Little External Review, 7 ENV'T REP. (BNA) 693 (1976) [hereinafter Office of Mgmt. & Budget].
122. Office of Mgmt. & Budget, supra note 99, at 693.
123. Id.
124. Exec. Order No. 12, 044, 3 C. F. R. 152, 154(1979) (issued on March 23, 1978).
125. See Percival, Checks Without Balance, supra note 2, at 144-45.
126. See id. at 145.
127. 657 F.2d 298 (D. C. Cir. 1981).
128. Id. at 410.
129. 272 U. S. 52 (1926).
130. The authority of the President to control and supervise executive policymaking is derived from the Constitution; the desirability of such control is demonstrable from the practical realities of administrative rulemaking.... Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex regulatory problems. An overworked administrator exposed on a 24-hour basis to a dedicated but zealous staff needs to know the arguments and ideas of policymakers in other agencies as well as in the White House. Sierra Club, 657 F.2d at 406 (internal citations omitted). Surprisingly, Calabresi and Yoo do not discuss Sierra Club v. Costle in their discussion of President Carter's Administration, even though Judge Wald's dictum probably comes closest of any judicial opinion to support their argument for presidential directive authority.
131. Id.
132. Of course, it is always possible that undisclosed presidential prodding may direct an outcome that is factually based on the record, but different from the outcome that would have obtained in the absence of presidential involvement. In such a case, it would be true that the political process did affect the outcome in a way the courts could not police. But we do not believe that Congress intended that the courts convert informal rulemaking into a rarified technocratic process, unaffected by political considerations or the presence of presidential power.
133. Id. at 408.
134. Pub. L. No. 96-511, 94 Stat. 2812 (1980)
135. (codified as amended at 44 U. S. C. §§ 3501-3521 (2006)).
136. See 44 U. S. C. §§ 3503, 3507.
137. Id. § 3518 (e) (2006) ("Nothing in this subchapter shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies and offices....").
138. Exec. Order No. 12, 291, 3 C. F. R. 127 (1982) (issued on February 17, 1981).
139. Section 8 (b) of Executive Order 12, 291 did authorize the OMB to exempt certain types of regulations from review. Section 8 (a) purported to exempt from the prepublication review requirement regulations that respond to emergency situations and regulations for which review would conflict with statutory or judicial deadlines. OMB generally ignored Section 8 (a) until they were successfully sued in Environmental Defense Fund v. Thomas, 627 F. Supp. 566, 567 (D. D. C. 1986), for illegally blocking promulgation of a regulation subject to an expired statutory deadline.
140. See Exec. Order No. 12, 291, § 3 (01), 3 C. F. R. at 129-30.
141. See id. § 3 (d), 3 C. F. R. at 129.
142. Id § 2 (b), 3 C. F. R. at 128.
143. Exec. Order No. 12, 498, 3 C. F. R. 323 (1986).
144. See id. §§ 1-2, 3 C. F. R. at 323-24.
145. Exec. Order No. 12, 498, § 4, 3 C. F. R. at 325;
146. Exec. Order No. 12, 291, §§ 2, 3 (a), 6 (a), 7 (e), 3 C. F. R. at 127-28, 131-32.
147. Exec. Order No. 12, 291, § 3 (0(3), 3 C. F. R. at 130.
148. Memorandum from U. S. Department of Justice, Office of Legal Counsel, Proposed Executive Order Entitled "Federal Regulation" (Feb. 13, 1981), reprinted in Role of OMB in Regulation: Hearing Before Subcomm. on Oversight & Investigation of H. Comm. on Energy & Commerce, 97th Cong. 486, 488(1981).
149. Id.
150. Id. at 492.
151. After conceding that "Reagan specifically disclaimed any intent to direct agency decisionmaking", Calabresi and Yoo cite my prior scholarship on regulatory review to support this statement: "Even opponents of the unitary executive theory recognized that the [Reagan] regulatory review program did in fact have a direct impact on regulatory outcomes and represented one of the most sweeping invocations of the unitary executive yet seen. "
152. CALABRESI & YOO, supra note 5, at 381.
153. See Olson, supra note 68 (dicussing OMB's substantive impact on rulemaking, focusing on EPA regulations);
154. Percival, Checks Without Balance, supra note 2, at 161-68. EPA Administrator Anne Gorsuch Burford, initially an enthusiastic promoter of the program, later testified that while Presidential oversight of rulemaking is appropriate, "there were some serious abuses"
155. by OMB. EPA: Investigation of Superfund and Agency Abuses (Part 3): Hearings Before Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Commerce, 98th Cong. 234 (1983) (testimony of Anne Gorsuch Burford). Claims of abuses by OMB in conducting regulatory reviews were explored in detail in a series of oversight hearings by congressional committees.
156. See, e.g., OMB Review of EPA Regulations: Hearing Before the Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Commerce, 99th Cong. (1986);
157. Oversight of the Office of Management and Budget Regulatory Review and Planning Process: Hearing Before the Subcomm. on Intergovernmental Relations of the S. Comm. on Governmental Affairs, 99th Cong. (1986);
158. EPA: Investigation of Superfund and Agency Abuses, supra; EPA's Asbestos Regulations: Hearing Before the Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Commerce, 99th Cong. (1985);
159. Office of Management and Budget Control of OSHA Rulemaking: Hearings Before a Subcomm. of the H. Comm. on Government Operations, 97th Cong. (1982);
160. Role of OMB in Regulation: Hearing Before the Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Commerce, 97th Cong. (1981).
161. Exec. Order No. 12, 291 § 3 (0(1), 3 C. F. R. 127, 129-30 (1982).
162. OMB Director Richard Darman reportedly instructed OMB staff that, rather than delaying rules indefinitely, they were to meet with agency staff and '"try to hash it out'" in cases where '"genuine disagreement exists.'" OMB Official Promises End to Rule Delays, But RCRA Rule Still at Agency After Seven Months, 20 Env't Rep. (BNA) 8 (1989) (quoting Robert Grady, Assoc. Director, OMB).
163. 627 F. Supp. 566 (D. D. C. 1986).
164. Id. at 571. In the interests of full disclosure, the author was lead counsel for the Environmental Defense Fund in this litigation.
165. Id. at 570.
166. Id.
167. Id. Remarkably, Calabresi and Yoo cite this decision for the proposition that, although President "Reagan did not invoke any particular statutory authority for issuing these orders,... [c]ourts reviewing these orders apparently agreed" with the President's assertion of authority.
168. CALABRESI & YOO, supra note 5, at 381. In a footnote they cite the court's statement that "[a] certain degree of deference must be given to the authority of the President to control and supervise executive policymaking", without mentioning that the Court ruled that OMB had acted illegally by seeking to prevent EPA from performing its statutory duty.
169. Id. at 501 n. 51.
170. An Act to Amend the Clean Air Act, Pub. L. No. 101-549, 104 Stat. 2399 (1990) (codified as amended in scattered titles of U. S. C.);
171. see Steven J. Shimberg, Stratospheric Ozone and Climate Protection: Domestic Legislation and the International Process, 21 ENVTL. L. 2175, 2180-81 (1991) (discussing the congressional votes).
172. See Lincoln L. Davies, Lessons for an Endangered Moment: What a Historical Juxtaposition of the Legal Response to Civil Rights and Environmentalism Has To Teach Environmentalists Today, 31 ENVTL. L. 229, 337(2001).
173. See id.
174. See Percival, Presidential Management, supra note 2, at 993.
175. See Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 167-68 (1995).
176. See id. at 168.
177. See id.
178. See Percival, Checks Without Balance, supra note 2, at 155.
179. When he announced the creation of the Council on Competitiveness on February 9, 1989, President George H. W. Bush confirmed that "[i]n reviewing regulatory matters, the Council will be continuing the work of the former President's Task Force on Regulatory Relief...." EXECUTIVE OFFICE OF THE PRESIDENT, REGULATORY PROGRAM OF THE UNITED STATES GOVERNMENT, APRIL 1, 1990-MARCH 31, 1991, at 5 (1990).
180. See id.
181. See Percival, Checks Without Balance, supra note 2, at 155.
182. See EXECUTIVE OFFICE OF THE PRESIDENT, supra note 143, at 5 ("The Council will work closely with OIRA to augment the regulatory review process, ensure that the benefits of regulation outweigh their costs, and coordinate development of legislative and administrative initiatives to reduce unnecessary regulatory burdens.").
183. See Percival, Checks Without Balance, supra note 2, at 155.
184. Michael Weisskopf, EPA Proposal on Recycling Is Trashed, WASH. POST, Dec. 20, 1990, at A17.
185. See President's Council on Competitiveness Fact Sheet (Dec. 19, 1990), reprinted in Clean Air Act Implementation (Part 1): Hearings Before the Subcomm. on Health & the Environment of the H. Comm. on Energy & Commerce, 102d Cong. 164-65 (1991).
186. New York v. Reilly, 969 F.2d 1147 (D. C. Cir. 1992).
187. See E. Donald Elliot, Portage Strategies for Adapting Environmental Law and Policy During a Logjam Era, 17 N. Y. U. ENVTL. L. J. 24, 42 n. 43 (2008).
188. See Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L. J. 1385, 1442 n. 271 (1992).
189. See id. ("If the executive agencies had taken this directive seriously, OMB would have soon become inundated with submissions of such informal policymaking devices.").
190. Section 7 (a) (2) of the Endangered Species Act (ESA) requires federal agencies to ensure that their actions are "not likely to jeopardize the continued existence of any endangered species." 16 U. S. C. § 1536 (a) (2) (2006). However, section 7 (h) of the ESA allows a specially-convened interagency committee known as the "God squad" to grant an exemption if it determines, following a formal adjudicatory hearing, that "there are no reasonable and prudent alternatives to the agency action" and that the action meets three other requirements.
191. Id. § 1536 (h) (1) (A) (i).
192. The seven-member Committee was comprised of: the Secretary of Agriculture, the Secretary of the Army, the Chairman of the Council of Economic Advisors, the Administrator of the Environmental Protection Agency, the Secretary of the Interior, the Administrator of the National Oceanic and Atmospheric Administration, and "one individual from each affected State" appointed by the President, 16 U. S. C. § 1536 (e) (3), with the state representatives having one collective vote.
193. Committee Meetings, 50 C. F. R. § 453. 05 (d) (1991).
194. See Scott A. Powell, Comment, Global Protection of Threatened and Endangered Species: Rethinking Section 7 of the Endangered Species Act, 31 WILLAMETTE L. REV. 523, 529 n. 29 (1995).
195. Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1538 (9th Cir. 1993).
196. See id. at 1543.
197. 5 U. S. C. § 557 (d) (1) (A) (2006).
198. Portland Audubon, 984 F.2d at 1543.
199. See id. at 1546.
200. Id. at 1545 (emphasis omitted).
201. Id. (internal citations omitted).
202. On mixed agency-President delegations see the text accompanying note 56.
203. Portland Audubon, 984 F.2d at 1545 n. 24.
204. Id. at 1546-47 (internal citations omitted).
205. Pub. L. No. 101-535, 104 Stat. 2353
206. (codified as amended in scattered sections of 21 U. S. C.).
207. See DAVID KESSLER, A QUESTION OF INTENT: A GREAT AMERICAN BATTLE WITH A DEADLY INDUSTRY 57-58 (2001).
208. See id. at 58-59.
209. Id. at 58.
210. Id. at 59.
211. See Marian Burros, Eating Well, N. Y. TIMES, Oct. 14, 1992, at C4.
212. KESSLER, supra note 168, at 67.
213. Id. at 68.
214. See id. at 68-69.
215. See id. at 69.
216. See id. at 70-71.
217. CALABRESI & YOO, supra note 5, at 388.
218. Id. at 388-89.
219. Exec. Order No. 12, 866, 3 C. F. R. 638 (1994).
220. Id. § 6 (a) (3) (A), 3 C. F. R. at 645.
221. See id. § 6 (b) (2) (B), 3 C. F. R. at 647.
222. Id. § 7, 3 C. F. R. at 648.
223. See Percival, Presidential Management, supra note 2, at 995.
224. Kagan, supra note 7, at 2294.
225. Id. at 2294-95.
226. Id.
227. Id. at 2317.
228. Id. at 2288. Executive Order 12, 866 purported to subject independent agencies to OMB's regulatory planning process for the first time, though like its predecessors it did not require independent agencies to submit individual rules to OMB for review. Exec. Order No. 12, 866, § 4 (c), 3 C. F. R. 638, 642(1994).
229. Exec. Order No. 12, 866, § 7, 3 C. F. R. at 648.
230. Id.
231. Id.
232. Id. § 9, 3 CFR at 649.
233. Kagan, supra note 7, at 2320.
234. Id. at 2322.
235. See text accompanying note 121-26, 174-75 supra.
236. Exec. Order No. 13, 258, 3 C. F. R. 204 (2003).
237. BARTON GELLMAN, ANGLER: THE CHENEY VICE PRESIDENCY 198 (2008).
238. Id. at 199.
239. Id.
240. Id. at 82-85, 88-90.
241. Id. at 205.
242. Id. at 208.
243. Id.
244. New York v. Envtl. Prot. Agency, 443 F.3d 880, 883 (D. C. Cir. 2006).
245. GELLMAN, supra note 198, at 195-213.
246. Id. at 213.
247. See, e.g., Dick Durbin, Op-Ed., Graham Flunks the Cost-Benefit Test, WASH. POST, July 16, 2001, at A15.
248. 147 CONG. REC. 13, 943-44 (2001).
249. See John D. Graham, Memorandum for the President's Management Council, Presidential Review of Agency Rulemaking by OIRA, Sept. 20, 2001, at 5, available at http://www.whitehouse.gov/omb/inforeg-OIRA-review-process (describing the meaning of "prompt" letters);
250. see also John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 FORDHAM URB. L. J. 953, 972(2006).
251. Letter from John D. Graham, Adm'r, OIRA, to John Henshaw, Assistant Sec'y of Labor (Sept. 18, 2001), http://www.reginfo.gov/public/prompt/osha-prompt- letter.html.
252. Letter from John D. Graham, Adm'r, OIRA, to Tommy G. Thompson, HHS Sec'y (Sept. 18, 2001), http://www.reginfo.gov/public/prompt/hhs-prompt-letter.html;
253. see Ellen Nakashima, OMB Asks Agencies for Action, WASH. POST, Sept. 21, 2001, at A30.
254. Exec. Order No. 13, 422, 3 C. F. R. 191 (2008).
255. Id. §§ 5 (b), 7, 3 C. F. R. at 193.
256. Id.§ 4 (b), 3 C. F. R. at 192.
257. CURTIS COPELAND, CONG. RESEARCH SERV., RL 33862, CHANGES TO THE OMB REGULATORY REVIEW PROCESS BY EXECUTIVE ORDER 13422 (2007).
258. Memorandum from Andrew H. Card, Jr. for the Heads and Acting Heads of Executive Departments and Agencies (Jan. 20, 2001), 66 Fed. Reg. 7702 (Jan. 24, 2001).
259. See GELLMAN, supra note 198, at 207.
260. 5 U. S. C. §§ 801-808 (2006).
261. On March 1, 2001, Congressional Republicans introduced a resolution of disapproval, which was approved by the Senate on March 6, 2001 by a vote of 56-44. Pub. L. No. 107-5, 115 Stat. 7 (2001);
262. CONG. REC. 2682, 2873-74 (2001). On March 7, the U. S. House of Representatives adopted the joint resolution by a vote of 223-206.
263. Id. at 3037-38. OSHA had expected that its ergonomics rule would prevent 4.6 million worker injuries per year from carpal tunnel syndrome, back strains, and other ailments over ten years.
264. See 65 Fed. Reg. 68, 772 (Nov. 14, 2000). OSHA acknowledged that the rule would be expensive for businesses, estimating that it ultimately could cost $4.5 billion to implement, but it projected that it would save $9 billion per year by reducing worker injuries.
265. See id. at 68, 773.
266. See 5 U. S. C. § 802 (a).
267. 5 U. S. C. § 801 (b) (2).
268. In Immigration & Naturalization Service v. Chadha, 462 U. S. 919 (1983), the Supreme Court held that a legislative veto of regulations is unconstitutional because it bypassed the President's role in approving or disapproving of legislation.
269. Id. at 956-59. The Congressional Review Act avoids this constitutional problem by providing that joint resolutions of disapproval must either be signed by the President or enacted over his veto.
270. See 147 CONG. REC. 2815 (statement of Sen. Trent Lott).
271. Statement on Signing Legislation To Repeal Federal Ergonomics Regulations, 1 PUB. PAPERS 269 (Mar. 20, 2001).
272. See, e.g., 147 CONG. REC. 2828 (statement of Sen. Fred Thompson);
273. id. at 2836 (statement of Sen. Christopher Bond).
274. See id. at 2816 (statement of Sen. James Jeffords).
275. See 5 U. S. C. § 801 (b) (2);
276. CONG. REC. 2836 (statement of Sen. Dianne Feinstein) ("If what I think will happen happens when... the ergonomics standard is overturned, OSHA is barred from introducing any standard that is substantially similar to the rule unless specifically authorized by a subsequent act of Congress. This effectively kills a 10-year effort.").
277. Letter from Stephen L. Johnson, Adm'r, EPA, to Arnold Schwarzenegger, Governor of California (Dec. 19, 2007), http://www.epa.gov/otaq/climate/ 20071219-slj.pdf.
278. 42 U. S. C. § 7543 (b) (2006).
279. Id. § 7543 (b) (1) (AMB).
280. See Juliet Eilperin, EPA Chief Denies Calif. Limit on Auto Emissions, WASH. POST, Dec. 20, 2007, at A1.
281. See EPA's New Ozone Standards: Hearing Before the H. Comm. on Oversight & Government Reform, 110th Cong. 2 (2008) [hereinafter EPA's New Ozone Standards] (statement of Rep. Henry Waxman);
282. id. at 136 (testimony of EPA Administrator Stephen Johnson).
283. Eilperin, supra note 231.
284. Memorandum from the H. Comm. on Oversight and Government Reform on the EPA's Denial of the California Waiver (May 19, 2008), http://www. cleancarscampaign.org/web-content/cleanairact/docsAVaxman-result-5-19-08.pdf [hereinafter Memorandum]. The states that adopted California's standards were Arizona, Connecticut, Maine, Maryland, Massachusetts, New Mexico, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
285. Id.
286. Eilperin, supra note 231.
287. Id.
288. Memorandum, supra note 234.
289. Matthew L. Wald, E. P. A. Chief Defends His Decision on California, N. Y. TIMES, Jan. 25, 2008, at A19.
290. Pub. L. No. 110-140, 121 Stat. 1492
291. (codified as amended in scattered sections of 42 U. S. C.).
292. Eilperin, supra note 231. Notably, in the Clean Air Act's thirty-seven year history, EPA had never before denied a waiver to California under section 209.
293. Id. Since 1970, the EPA granted more than fifty waivers involving tailpipe emissions that affected some states more than others.
294. John M. Broder & Micheline Maynard, Denial of California Bid on Emissions Should Have Been Foreseen, N. Y. TIMES, Dec. 21, 2007, at A37.
295. See Comm. on Oversight & Gov't Reform, Majority Staff, Memorandum, EPA's Denial of the California Waiver (May 19, 2008), at 6-16
296. in EPA's New Ozone Standards, supra note 232, at 11, 16-28 [hereinafter Memorandum].
297. Id. at 23-26.
298. Memorandum, supra note 241, at 23. An earlier version of the slide contained "much stronger language" regarding the litigation outcome should EPA deny the waiver.
299. Id. at 23-24. Multiple witnesses testifying before the House committee investigating EPA's denial of the waiver request confirmed that Administrator Johnson was made aware of the waiver criteria and legal risks that would come with a denial.
300. Id. at 24-26.
301. See id. at 12.
302. EPA's New Ozone Standards, supra note 232, at 137 (testimony of EPA Administrator Stephen Johnson).
303. See Bush Leaves Weak Environmental Legacy, Ex-EPA Officials Say, ASSOCIATED PRESS, Dec. 8, 2008, available at http://www.pennlive.com/midstate/ index.ssf/2008/12/bush-leaves-weak-environmental.html ('"Here we see a real failure of leadership', said Russell Train, EPA administrator during the Nixon and Ford eras. 'EPA has become a nonentity.'").
304. Massachusetts v. Envtl. Prot. Agency, 549 U. S. 497, 532-35 (2007).
305. Juliet Eilperin, White House Tried To Silence EPA Proposal on Car Emissions, WASH. POST, June 26, 2008, at A2.
306. Id.
307. See Letter from EPA Administrator Stephen L. Johnson to President George W. Bush (January 31, 2008), available at http://democrats.energycommerce.house. gov/sites/default/files/documents/EnclosureLetter-PresdidentfromStephenJohnson- 2.8.2011-2.p df [hereinafter Letter].
308. See id.
309. Felicity Barringer, White House Refused To Open E-Mail on Pollutants, N. Y. TIMES, June 25, 2008, at A15. Six weeks before this incident, OMB had eviscerated draft testimony on the effects of climate change on public health that Julie Gerberding, the head of the Centers for Disease Control, had planned to deliver before a hearing of the Senate Environment and Public Works Committee.
310. Brandon Keim, White House Censors CDC Official's Testimony on Climate Change and Health, WIRED (Oct. 24, 2007, 9:18 AM), http://vAvw.wired.com/ wiredscience/2007/10/white-house-cen/. Due to deletions ordered by OMB, her written statement shrunk from twelve pages to six pages.
311. Id.
312. Letter, supra note 250.
313. Id.
314. Id.
315. Id.
316. See generally SELECT COMM. ON ENERGY INDEPENDENCE & GLOBAL WARMING, 110TH CONG., INVESTIGATION OF THE BUSH ADMINISTRATION'S RESPONSE TO MASSACHUSETTS V. EPA (July 18, 2008), http://globalwarming.house.gov/tools/ 2q08materials/files/0110.pdf.
317. Envtl. Prot. Agency, Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44, 354 (July 30, 2008).
318. EPA's New Ozone Standards, supra note 232, at 76 (statement of Susan E. Dudley).
319. Melanie Marlowe, The Unitary Executive and Review of Agency Rulemaking, in THE UNITARY EXECUTIVE AND THE MODERN PRESIDENCY 77, 95 (Ryan J. Barilleaux & Christopher S. Kelley eds., 2010).
320. See EPA's New Ozone Standards, supra note 232, at 76 (statement of Susan E. Dudley).
321. Id. at 77.
322. Marlowe, supra note 260, at 95.
323. Id.
324. See id.
325. Juliet Eilperin, Ozone Rules Weakened at Bush's Behest, WASH. POST, March 14, 2008, at Al.
326. See generally Nomination of Andrew von Eschenbach and Paul DeCamp: Hearing Before the S. Comm. on Health, Educ, Labor, & Pensions, 109th Cong. (2006).
327. 603 F. Supp. 2d 519 (E. D. N. Y. 2009).
328. Id. at 527.
329. Id.
330. Id. at 527-28.
331. Id. at 527.
332. Id. at 528.
333. Id.
334. Id. The committee voted twenty-three to four in favor of a recommendation to approve Plan B for over-the-counter (OTC) status without age or point-of-sale restrictions.
335. Id. It also voted unanimously in favor of finding that Plan B is safe for OTC use and by a vote of twenty-seven to one that the actual use study data could be generalized to the total population of OTC Plan B users.
336. Id.
337. Id.
338. Id. at 529.
339. Id. at 530 (alterations in original).
340. There was also evidence that Dr. McClellan made the decision before FDA staff had even completed its scientific reviews of the actual use data.
341. Id.
342. Id. at 531.
343. Id. at 534.
344. Id.
345. Id. at 535.
346. Id. at 536.
347. GOV'T ACCOUNTABILITY OFFICE, FOOD & DRUG ADMIN. DECISION PROCESS TO DENY INITIAL APPLICATION FOR OVER-THE-COUNTER MARKETING OF THE EMERGENCY CONTRACEPTIVE DRUG PLAN B WAS UNUSUAL 19 (2005).
348. Id. at 19-20.
349. Id. at 20-21.
350. Id. at 21-22.
351. Id. at 22-29.
352. Tummino v. Torti, 603 F. Supp. 2d 519, 544 (E. D. N. Y. 2009).
353. Id.
354. Id. at 550.
355. Id. at 548.
356. Id. at 550.
357. Richard M. Pious, Warrantless Surveillance and the Warrantless Presidency, in UNITARY EXECUTIVE, supra note 260, at 163, 163;
358. Dan Eggen, Bush Authorized Domestic Spying, WASH. POST, Dec. 16, 2005, at Al. This surveillance program was justified by a classified legal opinion authored by John C. Yoo, the former deputy in the Department of Justice Office of Legal Counsel.
359. See Eggen, supra. The program permitted the NSA to monitor emails and calls between the United States and locations overseas if one party was believed to be linked to a terrorist group.
360. Dan Eggen & Paul Kane, Gonzales Hospital Episode Detailed, WASH. POST, May 16, 2007, at Al.
361. Elizabeth B. Bazan & Jennifer K. Elsea, CONG. RESEARCH SERV., Memorandum on the Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information 1 (Jan 5, 2006).
362. Id. at 2
363. (quoting Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)).
364. Eggen, supra note 295.
365. Barton Gellman, Conflict Over Spying Led White House to Brink, WASH. POST, Sept. 14, 2008, at Al.
366. See GELLMAN, supra note 198, at 287-92.
367. Id. at 313-26.
368. Id. at 319-21.
369. Id. at 143, 153-54, 279.
370. Id. at 282-98.
371. Gellman, supra note 299.
372. Id. In fact, neither official had even seen the DOJ's classified legal analysis authored by Yoo.
373. See GELLMAN, supra note 198, at 277-81.
374. Gellman, supra note 299. Addington briefed Goldsmith on the program shortly after he took his post in DOJ in October 2003.
375. Id.
376. Barton Gellman, Cheney Shielded Bush from Crisis, WASH. POST, Sept. 15, 2008, at Al.
377. Gellman, supra note 299.
378. Id.
379. See GELLMAN, supra note 198, at 289-94.
380. Id. at 293.
381. Id.
382. Gellman, supra note 299.
383. Id.
384. GELLMAN, supra note 198, at 296.
385. Id. at 294.
386. Gellman, supra note 299. Also in attendance at the meeting were Andrew Card, NSA Director Mike Hayden, FBI Director Robert S. Mueller, and John McLaughlin of the CIA.
387. Id.
388. Id. Comey made this determination by asking Townsend whether she recognized the classified code name of the program; she did not.
389. Id.
390. Id.
391. Gellman, supra note 308. Although National Security Advisor Condoleezza Rice had clearance, Cheney did not invite her to significant meetings.
392. Id.
393. Id. President Bush was not involved at this point in time.
394. Id.
395. Id.
396. Id.
397. Id. Ashcroft further stated that the White House officials "drew the circle so tight" that he could not receive the advice that he needed.
398. Id.
399. Id. Both men drafted resignation letters. Goldsmith instructed his deputy, Ed Whelan, to draft his resignation letter immediately after the hospital meeting.
400. GELLMAN, supra note 198, at 305. Comey reiterated in his resignation letter that he had promised at his confirmation hearing that he "would never be a part of something that [he] believe[d] to be fundamentally wrong" and that the DOJ had been unable to right the wrong in this case.
401. Id. at 313-14. Thus, he must "do the right thing" and resign. Letter from James B. Comey, Deputy Att'y Gen., to President George W. Bush (Mar. 16, 2004) (unsent), available at http://www.washingtonpost.com/wp-srv/politics/ interactives/cheney/doc-comey-resig.html.
402. Comey testified that he believed that a large portion of his staff was set to resign. Written Questions from Sen. Charles E. Schumer to James B. Comey 1 (May 15, 2007), available at http://www.washingtonpost.com/wp-srv/politics/ interactives/cheney/doccomey-senate.html [hereinafter Questions].
403. Gellman, supra note 308. Caproni was bound by the FBI's central mission-to "uphold and enforce the criminal laws of the United States", which she could not do if she were to enforce a program that the DOJ refused to certify as legal. Gellman, supra note 299.
404. Eggen & Kane, supra note 295.
405. Gellman, supra note 308. Cheney, Addington, Card, and Gonzales were all aware of the potential resignations.
406. Id.
407. Id.
408. Id. Mueller also met privately with the President and informed him that the FBI could not participate in operations that DOJ deemed to be criminal violations of the law, so he would be forced to resign.
409. Id. Moreover, Comey later testified that DOJ's views on the legality of the surveillance program, including the view that neither Comey nor Ashcroft would certify the program, were communicated orally and in writing in the weeks or months preceding the March 10 meeting. Written Questions to Former Deputy Att'y Gen. James B. Comey Submitted by Sen. Patrick Leahy 2 (May 22, 2007), available at http://www.washingtonpost.com/wp-srv/politics/interactives/cheney/ doc-comey-senate.html.
410. Gellman, supra note 308. President Bush sent this message to Comey through Mueller.
411. Id.
412. Id.
413. Questions, supra note 327, at 1.
414. Eggen & Kane, supra note 295.
415. Exec. Order No. 13, 489, § 6, 3 C. F. R. 191, 193(2010). For a discussion of Executive Order 13, 233
416. see Percival, Presidential Management, supra note 2, at 1012-13.
417. Exec. Order No. 13, 497, §§ 1-2, 3 C. F. R. 218, 218(2010)
418. (revoking Exec. Order 13, 422, 3 C. F. R. 191 (2008)
419. and Exec. Order 13, 258, 3 C. F. R. 204 (2003));
420. see supra notes 197, 213-15 and accompanying text (detailing how Executive Orders 13, 258 and 13, 422 modified Executive Order 13, 233). Curiously, on March 4, 2009, OMB Director Peter R. Orszag issued a memorandum "clarifying" that the President did not intend to revoke OIRA's authority to review guidance documents. Peter R. Orszag, Director, Office of Mgmt. & Budget, Memorandum for the Heads & Acting Heads of Exec. Dep'ts & Agencies (Mar. 4, 2009) (on file with the Fordham Law Review). He based this claim on the assertion that OMB occasionally had reviewed agency guidance documents prior to the issuance of Executive Order 13, 422.
421. Id.
422. Barack H. Obama, Memorandum for the Heads of Exec. Dep'ts & Agencies (Jan. 30, 2009)
423. Fed. Reg. 5977 (Feb. 3, 2009).
424. Id.
425. Id.
426. Office of Management and Budget, Federal Regulatory Review-Request for Comments, 74 Fed. Reg. 8819 (Feb. 26, 2009).
427. Id. at 8819.
428. Id.
429. See Public Comments on OMB Recommendations for a New Executive Order on Regulatory Review, REGINFO. GOV, http://www.reginfo.gov/public/jsp/EO/ fedRegReview/publicComments.jsp (last visited Apr. 20, 2011).
430. Exec. Order No. 13, 563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
431. Id. § 6, 76 Fed. Reg. at 3822;
432. see Barack Obama, Opinion, Toward a 21st-century Regulatory System, WALL ST. J., Jan. 18, 2011, at A17 (stating that the administration is "making it our mission to root out regulations that conflict, that are not worth the cost, or that are just plain dumb").
433. See Exec. Order No. 13, 563, § 4, 76 Fed. Reg. at 3822.
434. Id. § 1, 76 Fed. Reg. at 3821.
435. Id. § 7 (b), 76 Fed. Reg. at 3822.
436. Memorandum, supra note 234.
437. Barack Obama, Memorandum, The Energy Independence and Security Act of 2007 (Jan. 26, 2009)
438. Fed. Reg. 4907 (Jan. 28, 2009).
439. Memorandum, supra note 234, at 20.
440. Obama, supra note 352.
441. Obama Moves To Revise Fuel Efficiency Policies, PBS NEWSHOUR (Jan. 26, 2009, 1:20 PM), http://www.pbs.org/newshour/updates/environment/jan-june09/fuel- 01-26.html.
442. Barack Obama Executive Orders Disposition Tables, NATIONAL ARCHIVES, http://www.archives.gov/federal-register/executive-orders/obama.html (last visited Apr. 20, 2011).
443. Barack Obama, Memorandum, Appliance Efficiency Standards (Feb. 5, 2009)
444. Fed. Reg. 6537 (Feb. 9, 2009).
445. Reversing Bush Rule, Obama Resumes Safeguards for Endangered Species, PBS NEWSHOUR (Mar. 3, 2009, 5:05 PM), http://www.pbs.org/newshour/updates/science/ janjune09/speciesrule-03-03.html.
446. Barack Obama, Memorandum, The Endangered Species Act (Mar. 3, 2009)
447. Fed. Reg. 9753 (Mar. 6, 2009).
448. Barack Obama, Memorandum, Scientific Integrity (Mar. 9, 2009)
449. Fed. Reg. 10, 671 (Mar. 11, 2009).
450. Id.
451. Barack Obama, Memorandum, National Policy for the Oceans, Our Coasts, and the Great Lakes (June 12, 2009)
452. Fed. Reg. 28, 591 (June 17, 2009).
453. Exec. Order No. 13, 514, § 2, 3 C. F. R. 248, 249(2010).
454. Id.
455. Barack Obama, Memorandum, Improving Energy Security, American Competitiveness and Job Creation, and Environmental Protection Through a Transformation of Our Nation's Fleet of Cars and Trucks (May 21, 2010)
456. Fed. Reg. 29, 399 (May 26, 2010).
457. Exec. Order No. 13, 543, 75 Fed. Reg. 29, 397 (May 26, 2010).
458. Obama, supra note 365, § 1;
459. U. S. Sets Sights on Auto Fuel Efficiency for 2017, REUTERS (May 21, 2010, 11:46 AM) http://www.reuters.com/article/2010/05/21/us-autosfuel- idUSTRE64J75120100521.
460. U. S. Sets Sights on Auto Fuel Efficiency for 2017, supra note 367.
461. Obama, supra note 365.
462. Exec. Order No. 13, 543, 75 Fed. Reg. 29, 397.
463. Letter from Gregory B. Craig, Counsel to the President, to Senator Russell D. Feingold 3 (Oct. 5, 2009), available at http://theplumline. whorunsgov. com/wpcontent/uploads/2009/10/feingoldletter.pdf.
464. See generally Richard J. Pierce, Jr., Saving the Unitary Executive Theory from Those Who Would Distort and Abuse It: A Review of The Unitary Executive by Steven G. Calabresi and Christopher S. Yoo, 12 U. PA. J. CONST. L. 593 (2010);
465. Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007).
466. Christopher S. Yoo, Symposium, Presidential Power in Historical Perspective: Reflections on Calabresi and Yoo's The Unitary Executive-Foreword, 12 U. PA. J. CONST. L. 241, 246(2010) ("Several commentators have observed that our book offers a stronger showing of presidential assertions of the power to remove executive officials and a weaker showing of the President's authority to direct executive officials in their actions.").
467. CALABRESI & YOO, supra note 5, at 421. Moreover, all of the other examples they cite of Presidents directing subordinates occurred long before the dawn of the regulatory state when statutes routinely specified that regulatory decisions were to be made by agency heads.
468. See, e.g., Exec. Order No. 13, 563, § 7 (b), 76 Fed. Reg. 3821, 3822 (Jan. 21, 2011);
469. Exec. Order No. 12, 866, § 9, 3 CF. R. 638, 649(1994);
470. Exec. Order No. 12, 291, § 3 (f) (3), 3 C. F. R. 127, 130(1982).
471. See Yoo, supra note 373, at 246-47.
472. Kagan, supra note 7, at 2251, 2320.
473. Mark Tushnet suggests that theories of the unitary executive have evolved historically in three stages that correspond remarkably to the desires of whatever administration is in power. Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. PA. J. CONST. L. 313 (2010).
474. See Percival, Presidential Management, supra note 2, at 975-76 (discussing how the first Congress "even while acknowledging the President's broad executive powers,... entrusted agency heads with certain decisionmaking responsibilities, and... sought to preserve some independence for agency heads in their performance of those responsibilities").
475. See id. at 1005-06.
476. See text accompanying note 81 supra.
477. See supra notes 228-66 and accompanying text.
478. See the discussion of the "Saturday Night Massacre" in Percival, Presidential Management, supra note 2, at 1004.
479. See text accompanying notes 295-330, supra.
480. KESSLER, supra note 168, at 69.
481. 796 F.2d 1479, 1481, 1483 (D. C. Cir. 1986) (reversing and remanding decision by OSHA's head to carry out OMB's last-minute directive to delete short-term exposure limit for ethylene oxide without any support or explanation in the administrative record).
482. 969 F.2d 1147, 1148-50 (D. C. Cir. 1992) (remanding to EPA).
483. KESSLER, supra note 168, at 68.
484. Moreover, as Kevin Stack has ably argued, decisions that can be shown to be the product of presidential prodding should be less likely to qualify for Chevron deference from a reviewing court. Stack, supra note 20, at 307.
485. But cf. Kagan, supra note 7, at 2376 (arguing for linking deference to presidential involvement given the President's more direct electoral accountability);
486. see also Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53 (2008) (questioning whether insulating an agency from the influence of elected officials reduces the agency's responsiveness to preferences of political majorities).
487. President's Council on Competitiveness Fact Sheet, supra note 149.
488. The Council on Competitiveness's fact sheet cited three reasons for its decision: (1) the recycling requirement was not a performance standard, (2) the regulation interfered with local government decision making, and (3) it was not cost-beneficial under Executive Order 12, 291.
489. Id.
490. see David Littell, Note, The Omission of Materials Separation Requirements from Air Standards for Municipal Waste Incinerators: EPA's Commitment to Recycling Up in Flames, 15 HARV. ENVTL. L. REV. 601 (1991);
491. Michael Weisskopf, EPA Proposal on Recycling Is Trashed, WASH. POST, Dec. 20, 1990, at A17.
492. New York v. Reilly, 969 F.2d 1147, 1149 (D. C. Cir. 1992). The court did note that the fact that EPA went along with the Competitiveness Council's decision "does not mean that EPA failed to exercise its own expertise in promulgating the final rules."
493. Id. at 1152. As Michael Herz notes: "Although the general understanding, and my own belief, is that EPA Administrator William Reilly was forced to cave in to White House commands on the incinerator issue, officially the agency and the Council reached consensus, with the latter convincing Reilly of the error of his views."
494. Michael Herz, Imposing Unified Executive Branch Statutory Interpretation, 15 CARDOZO L. REV. 219, 224 n. 28 (1993);
495. see also Standards of Performance for New Stationary Sources; Municipal Waste Combustors, 56 Fed. Reg. 5488, 5497 (Feb. 11, 1991). Herz notes that EPA General Counsel Don Elliott later testified: "The final decision [regarding the incinerator new source performance standard] was very clearly made by Bill Reilly, rather than by the Council on Competitiveness."
496. Herz, supra, at 225 n. 28 (alteration in original).
497. Tummino v. Torti, 603 F. Supp. 2d 519, 544-47 (E. D. N. Y. 2009).
498. Stack, supra note 20, at 307.
499. See HENRY J. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER DEFINITION OF STANDARDS 150 (1962) ("Everyone, including the presidential activists, seems to agree that 'the outcome of any particular adjudicatory matter is... as much beyond his [the President's] concern... as the outcome of any cause pending in the courts...." (alterations in original)
500. (quoting JAMES M. LANDIS, REPORT ON REGULATORY AGENCIES TO THE PRESIDENT-ELECT 33 (1960)));
501. Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 YALE L. J. 451, 454 n. 11 (1979) (noting "White House efforts to forbid staff interference with agency adjudication"); @ @ Kagan, supra note 7, at 2306;
502. Emmette S. Redford, The President and the Regulatory Commissions, 44 TEX. L. REV. 288 (1965). ("The President and all other executive officials should avoid any ex parte statement or communication concerning the application of law or policy by commissions to particular concerns or individuals." (emphasis omitted));
503. Peter M. Flanigan, Memorandum, Contacts Between the White House and the Independent Regulatory Agencies (May 21, 1969)
504. reprinted in In re ITT Continental Baking Co., 82 F. T. C. 1188, 1191(1973)). Although Calabresi and Yoo do not focus on agency adjudications, they note that during the Nixon Administration the Ash Council proposed abolishing most independent agencies and transferring adjudicative functions previously performed by them to an Administrative Court of the United States. CALABRESI & YOO, supra note 5, at 351.
505. Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1536 (9th Cir. 1993);
506. see also text accompanying notes 154-66, supra.
507. Portland Audubon, 984 F.2d at 1547-48.
508. 657 F.2d 298 (D. C. Cir. 1981).
509. Portland Audubon, 984 F.2d at 1545 ("In fact, while the Costle court recognized that political pressure from the President may not be inappropriate in informal rulemaking proceedings, it acknowledged that the contrary is true in formal adjudications.").
510. Id. at 407 n. 527 (D. C. Cir. 1981). Judge Wald noted that statement from Myers that '"there may be duties of a quasi-judicial character imposed on... executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.'"
511. Id. (quoting Myers v. United States, 272 U. S. 52, 135(1926)).
512. Kagan, supra note 7, at 2306.
513. Id.
514. Id. at 2362.
515. Id. at 2363.
516. Id.
517. NLRB v. Bell Aerospace Co, 416 U. S. 267, 294(1974) ("[T]he Board is not precluded from announcing new principles in an adjudicative proceeding and... the choice between rulemaking and adjudication lies in the first instance within the Board's discretion. ");
518. SEC v. Chenery Corp, 332 U. S. 194, 203(1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.").
519. WILLIAM F. FUNK ET AL., ADMINISTRATIVE PROCEDURE AND PRACTICE 323 (3d ed. 2006);
520. Mark H. Grunewald, The NLRB's First Rulemaking: An Exercise in Pragmatism, 41 DUKE L. J. 274, 274-75 (1991).
521. But cf. Exec. Order No. 13, 422, § 5 (a), 3 C. F. R. 191, 193(2008)
522. (stating that agencies, "[i]n consultation with OIRA may also consider whether to utilize formal rulemaking procedures under 5 U. S. C. [§§] 556 and 557 [the provisions of the APA governing formal adjudicatory proceedings] for the resolution of complex determinations");
523. U. S. Chamber of Commerce Calls for Trial of Climate Science, ENV'T NEWS SERVICE (Aug. 26, 2009) http://www.ens-newswire.com/ens/aug2009/2009-08-26-091. asp (reporting on petition to EPA by the U. S. Chamber of Commerce for formal adjudicatory hearing to determine whether emissions of greenhouse gases endanger public health or welfare under the Clean Air Act).
524. See, e.g., Pierce, Jr., supra note 372, at 596-98;
525. Strauss, supra note 372, at 759-60.
526. See Pierce, Jr., supra note 372, at 600 ("The transparent systematic control mechanisms used by OIRA to control the bureaucracy, however, are not now, and never have been, the most important means through which Presidents, and presidential subordinates who purport to be acting on behalf of the President, exercise control over the bureaucracy. Largely invisible ad hoc White House jawboning is now, and always has been, far more important in its impact on agency policy decisions.");
527. see also Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47 (2006) (an empirical study finding that EPA is lobbied by myriad White House staffers outside of the OMB review process).
528. Cary Coglianese, Presidential Control of Administrative Agencies: A Debate over Law or Politics?, 12 U. PA. J. CONST. L. 637, 643-44 (2010).
529. Id. at 644.
530. Percival, Checks Without Balance, supra note 2, at 148.
531. Id.
532. Binyamin Appelbaum, G. O. P. Asks Businesses Which Rules To Rewrite, N. Y. TIMES, Jan. 5, 2011, at Bl.
533. Percival, Checks Without Balance, supra note 2, at 187-89.
534. George F. Will, The Poison Poor Children Breathe, reprinted in LAW AND THE ENVIRONMENT: A MULTIDISCIPLINARY READER 109 (Robert V. Percival & Dorothy C. Alevizatos eds., 1997).
535. For a discussion of additional contemporary examples of the political costs of removals, including President George W. Bush's decision to remove seven U. S. attorneys
536. see Pierce, Jr., supra note 372, at 607-10.