Article by Alan B. Morrison
This article examines the proper role of the President in informal rulemaking proceedings conducted under the Administrative Procedure Act (APA). While brief consideration will be given to the current law on contacts with administrative agencies, the article deals primarily with various approaches to the issue of presidential intervention, not viewed from the perspective of what the law is, but what it should be. As a preface to that discussion, it is important to mention a few preliminary matters.
First, there are few if any constitutional limitations on the power of Congress to circumscribe the role of the President in informal rulemaking. If Congress attempted to control the President's authority to meet with Cabinet officers or give them general policy directions intended to guide them in supervising their agencies, a constitutional issue might arise. Short of that, however, where the only question is to what extent Congress may establish procedures with which the President must also comply, the issue is not one of constitutional law, but of striking the appropriate legislative balance.
Second, there seems to be no clearly right or wrong answer to this problem. The question is, where does the appropriate balance lie with regard to the competing considerations? Since the issue is basically a policy question, the answer is one that the President and the Congress, rather than the courts, should decide. In other words, "there ought to be a law."
Third, there ought to be one law. The recent decision in Sierra Club v. Costle illustrates the need for Congress to step in now. The analysis of the issue of presidential intervention in that case, whatever its merits may be, demonstrates how a careful court will pour over a detailed statute and extract from it whatever help it can in trying to decide a question which has been basically left unanswered by Congress. The result in that case, which turned on the specific statute before the court, will only produce increased litigation. Each agency will defend its actions by citing segments of its organic statute, which were undoubtedly not directed at this particular problem, but which may provide some handle for the court, lest it be required to confront directly the much broader policy issue. Such litigation not only is counterproductive but also clearly fails to remedy the most critical aspect of the problem: the agency should know the rules in advance and not simply be told after the fact that it has made a mistake.
If there is a law, it should include independent regulatory agencies, such as the Interstate Commerce Commission and the Federal Trade Commission, as well as the executive departments such as Commerce, Transportation and Labor, and independent agencies within the executive branch, such as the Environmental Protection Agency (EPA). If it is desirable for the President to intervene in rulemaking proceedings, it should make no difference whether the proceeding is conducted by a person who is clearly part of the executive branch, or by members of an independent regulatory commission. It makes no sense to change the role of the President in, for example, the safety of consumer products, simply because the product is a television set, which is under the jurisdiction of the independent Consumer Product Safety Commission, rather than an automobile, which is regulated by the Department of Transportation, a purely executive agency. Similarly, the desirability of presidential intervention in rulemaking concerning the problem of controlling radiation exposure to workers in nuclear power plants should not turn on whether the issue is decided by the Nuclear Regulatory Commission, EPA, or the Department of Labor.
Additionally, Congress should spell out the role of the President at all stages of the rulemaking proceeding, either in the statute itself, or at least in its legislative history. Thus, the rules for White House involvement may, and probably should, vary at the pre-notice stage, during the public comment period, and after the close of the period for public participation. Not only is a clear mandate from Congress needed to eliminate uncertainty, but also the process of defining the President's role at each stage will help focus the attention of Congress more precisely on the different aspects of the problem. Moreover, there should be clear guidelines on what must be done with written communications and, to the extent that oral communications are permitted, whether they may take place freely, whether there must be verbatim transcripts prepared whenever possible, or whether summaries will be adequate. Similarly, Congress should decide whether any special rules that apply to the President himself extend to members of his staffs at the White House (and if so which staffs), or to officials in other federal agencies, and if so, how far down the hierarchy any such privilege would reach.
Finally, Congress should also consider whether the norms that it establishes, to the extent that they treat the President differently from other persons outside an agency, should be limited to informal rulemaking proceedings. While most of the discussion to date has related to proceedings under section 553, many of the reasons given to support the concept of presidential involvement would apply to formal rulemakings and formal adjudications. While those activities are prohibited by the ex parte restrictions in 5 U.S.C. § 557(d), Congress could revise those limitations if presidential control were deemed appropriate for those proceedings as well. Examination of the application of the rationale for presidential involvement to other, more formal kinds of proceedings should also serve to give Congress a better perspective in making its policy judgments in the area of informal rulemaking.
About the Author
Alan B. Morrison. Director, Public Citizen Litigation Group.
Citation
56 Tul. L. Rev. 879 (1982)