Testimony before the
Commercial and Administrative Law
House Judiciary Committee
May 6, 2008
James L. Gattuso
Senior Research Fellow in Regulatory Policy
Thomas A. Roe Institute for Economic Policy Studies
The Heritage Foundation
Madam Chairman and Members of the Subcommittee: thank you
for inviting me here today to discuss this important topic.
"I agree with you, but I don't know if the government will,"
President John Kennedy is said to have once told a visitor.
Kennedy's lament encapsulates in many ways the questions being
discussed today. To what extent can - or should -- a
president be able to ensure that his views and priorities are
reflected throughout the executive branch?
It's not just a matter of constitutional principle.
Perhaps the greatest challenge faced by presidents in this regard
is a practical one. Charged by the constitution with
"tak[ing] care that the laws be faithfully executed," they often
find their efforts frustrated by the machinery of the executive
branch which they head. Reflecting this frustration, Harry Truman
predicted difficulties for his successor, the former general Dwight
Eisenhower: "[H]e'll say, 'Do this! Do That!' And nothing will
Nowhere is the challenge been greater than in the area of
regulation. More than 50 agencies, ranging from the Animal
and Plant Inspection Service to the Bureau of Customs and Border
Protection, have a hand in federal regulatory policy. With
nearly 250,000 employees, they produce over 4,000 new rules - and
some 70,000 pages in the Federal Register - each year.
Managing this regulatory machinery in a way that not only
reflects the president's priorities but faithfully executes the
will of Congress and the mandates of the courts is no easy
task. That is why, starting a generation ago, presidents
began to establish systematic review processes for the promulgation
The first such process was created in 1971, when President
Richard Nixon required regulatory agencies to perform "quality of
life" analyses of significant new regulations. Supervised by
the Office of Management of Budget, the analyses were to outline
regulatory analyses and their costs.
Gerald Ford expanded on this process, making control of
regulatory growth part of his war on inflation, requiring agencies
to prepare "Inflation Impact Statements," which were reviewed by
the White House Council on Wage and Price Stability. Ford also set
up a cabinet-level group to focus on other initiatives to control
the cost of regulation.
Despite a different party affiliation, Jimmy Carter continued -
and even expanded - regulatory review mechanisms during his
Administration, continuing the practice of conducting economic
analyses of proposed regulations and setting up a cabinet-level
Regulatory Analysis Review Group to review proposed new
Upon taking office, Reagan established a "Task Force on
Regulatory Relief," chaired by Vice President George Bush, to
oversee review of the regulatory process. In addition, he
issued an executive order - E.O. 12291 - detailing the review
system. And perhaps most importantly from an institutional
point of view, he charged the newly created Office of Information
and Regulatory Affairs with oversight of that process.
The Reagan executive order on regulation continued in place
during President George Bush's term, with a cabinet-level Council
on Competitiveness headed by the Vice President taking the place of
the Task Force on Regulatory Relief. OIRA continued to manage
the review process, although no permanent OIRA chief was ever
In 1993, President Bill Clinton replaced the Reagan-era
Executive Order on regulatory review procedures with one of his
own, E.O. 12866. Among the changes in the Clinton order were
greater transparency requirements and a limitation of review
requirements to "significant" rules. But the basic structure
of the review system was kept in place.
Further reflecting the continuing stability of the review
system, President George W. Bush has kept the Clinton executive
order in place. During his tenure, however, OIRA has issued a
series of guidance documents for agencies - rather from a "best
practices" guide for regulatory impact analyses, to expanded
requirements for peer review -- to improve the consistency and
quality of reviews under the executive order. Most recently,
the Administration amended the executive order in several,
relatively minor, ways ---- including expanding the role of agency
"regulatory policy officers."
Today - 37 years after the first requirements were imposed, and
28 years after the creation of OIRA - centralized regulatory review
is an almost universally accepted part of regulatory
landscape. Since the first review processes were established,
seven Administrations - five Republican and two Democratic - have
built upon them. Each changed the system in various ways,
most improving upon that of its predecessor, but none has
challenged its basic utility or legitimacy.
As six former OIRA Administrators - including Sally Katzen, the
administrator under Bill Clinton -- wrote in a 2006 joint
letter: "All of us…recognize the importance of OIRA in
ensuring that federal rules provide the greatest value to the
American people. In our view, objective evaluation of
regulatory benefits and costs, and open, transparent, and
responsive regulatory procedures, are necessary to avert policy
mistakes and undue influence of narrow groups."
And, despite early questions by some, the constitutionality of
the idea of centralized White House review of rulemaking is today
not seriously challenged. As early as 1981, in fact, the D.C.
circuit recognized "the basic need of the President and his White
House staff to monitor the consistency of agency regulations with
Moreover, it could be argued that some type of review is
constitutionally required in order for the president to reasonably
meet his constitutional duty to "take care that the laws are
To the extent there is any debate over the constitutional
legitimacy of the process, it is when it conflicts with
congressional assignments of responsibility or discretion to
inferior officers within the executive branch. In such cases,
some have argued, the president may not substitute his judgment for
the judgment of the officer selected by Congress to perform a
particular duty. As argued by Peter Strauss of Columbia Law
School in previous testimony, the president is not "the decider,"
but merely the "overseer of decisions by others." While
the chief executive oversees the performance of other executive
branch officers, it is argued, he may not assume the decisional
responsibility granted to them by Congress. Thus, in this
view, the executive order's provision that disagreements between a
regulatory agency head and the OIRA administrator be decided by the
president is unconstitutional.
The problem is that this theory flies in the face of the
principle that executive power under the constitution is not shared
-- the concept of a "unitary executive." Article II of the
constitution flatly states that, "[t]he executive power shall be
vested in a President of the United States of America." Not
in plural "presidents", or "a president and other officers
designated by Congress," but in "a President".
The unitary executive concept is not an exotic theory, but one
of the most commonly-held tenets of our constitutional
system. As Steven Calabresi and Saikrishna Prakash have
observed: "[T]hat the President must be able to control the
execution of federal laws is easily understood and resonates
strongly with the very earliest lessons we learn about our
constitutional system." And, consistent with those
lessons, the framers of the constitution clearly rejected the idea
of a shared executive - rejecting proposals for a multiple
presidency and for a decision-sharing council.
In modern America, there are of course many examples of
non-unitary executives. Most states, for example, have one or
more elected statewide executive officers besides the governor,
ranging from attorneys general to insurance
commissioners. Christopher Berry and Jacob Gerson of
the University of Chicago, in a forthcoming article, write in favor
of a similar system for the federal government, suggesting the
possibility of a "directly elected War Executive, Education
Executive, or Agriculture Executive." However, even to
outline the idea of an "unbundled executives" underscores the fact
that that is not the system we currently have.
Of course, the differences between the sides in the current
debate over the president's powers are not that stark. The
unitary executive concept does not deny to Congress the assignment
of duties to individual officers within the executive branch, as
long as the president is able to exercise ultimate
Conversely, few advocate a fully unbundled executive for the
federal government. For the most part, even critics of the
unitary executive concept recognize the president's power to
articulate priorities and views, request adherence to them, and to
dismiss those who do not help carry out his agenda.
This is important, since in practice the president almost never
needs to issue an "order" to a regulatory officer make a particular
decision. Even in cases where the president serves as the
final arbiter in a dispute under regulatory review process, the
officers involved - being appointees of the president -- almost
always accept the articulated priorities of the president.
And when they do not, resignation or dismissal is the next likely
In this sense, the theoretical differences in the debate over
the unitary executive may not come down to much in practical
application. Under most any view, the president can
legitimately exercise control over the rulemaking process.
And this is as it should be, for many reasons. The most
important of these -- perhaps counter-intuitively - is the check
that clear responsibility provides over presidential power.
Were authority shared among multiple persons in the executive
branch, it would be relatively easy for the chief executive to
avoid accountability for his actions. He would always be able
to point his finger to some other officer, and mumble "my hands
were tied." But with ultimate authority vested in the
president, he is held to account for decisions, enabling voters -
as well as other policymakers - to assign blame or credit.
It should also be noted that a strong, system of centralized
regulatory review, anchored in presidential authority, does not
necessarily imply either more or less regulation. It simply
means that the president's priorities -- whatever they are -- will
be more accurately represented in decision making.
Lastly, none of this means that Congress has no role - or indeed
does not have the primary role - in the regulatory
policy. Just as the constitution provides the president
with executive power, Congress has ultimate legislative
authority. If Congress disagrees with how the terms of a
statute are applied in rules promulgated by the executive branch,
it can simply make the statute more explicit (or even better, make
its intent clear in the first instance).
Moreover, under the Congressional Review Act of 1996, a
particular regulatory decision may be specifically "disapproved" by
Congress. The statute - though so far rarely used --
provides for expedited consideration by both Houses of a resolution
of disapproval of a specific rulemaking. If approved by
Congress, the resolution can take effect, even over a presidential
veto, given sufficient support in Congress.
More generally, Congress's influence over regulatory policy
could also be expanded through institutional changes within
Congress, including the creation of a "Congressional Regulation
Office." While Congress today receives detailed information
from the Congressional Budget Office on the state of the budget and
on proposals that would affect the budget, it has no similar source
of information on regulatory programs. A Congressional
Regulation Office would help to fill this gap. Such an office could
review the regulatory impact of legislative proposals and report on
the effects of rules adopted by agencies. In this way, it
could act as both a complement to and a check on OIRA.
Lastly, to minimize the need for White House intervention in
agency decision-making, policymakers should strengthen the ability
of agencies themselves to evaluate the effects of their own
regulations. Review and analysis need not be an adversarial
process. Ideally, critical examination of the purpose
and effects of proposed rules begins within the agency
itself. To facilitate this, policymakers should ensure
that each agency has sufficient analytical resources, and well as
well-designed internal review office to ensure that those resources
are used meaningfully.
Systematic and centralized regulatory review of federal
regulations is not only a legitimate use of presidential power, but
- given the vast scope of rulemaking - virtually essential to
taking care that the laws are faithfully executed.
Congress nevertheless retains a primary role in regulatory policy -
which can be exercised through more explicit legislation, review of
specific rulemakings, and by expanding its own institutional
capability to review and analyze the effects of rules.
Thank you for your time. I would be glad to answer any
L. Gattuso is Senior Research Fellow in Regulatory
Policy in the Thomas A. Roe Institute for Economic Policy Studies
at The Heritage Foundation.
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