Article by Joan Z. Bernstein
The last decade in the regulatory world has produced a significant, and disturbing, increase in the number of inconsistent positions taken by the federal government. During the Carter administration, for example, conflicts arose out of the effort to strengthen the nation's economy and balance of trade by reducing dependence on foreign oil and increasing domestic coal production. The decision to encourage the use of domestic coal created mixed signals and problems. On the one hand, encouraging the development of eastern coal, with its high sulphur content, meant the potential increase of a serious pollutant. On the other hand, mining low sulphur western coal posed a serious threat to that area's water supply and agricultural base and arguably would have disadvantaged eastern coal markets. The need for a coordinating policymaker to balance the tradeoffs is obvious.
The last four Presidents, Reagan, Carter, Ford and Nixon, have been plagued with the task of resolving and unifying or, as a last resort, explaining and justifying such inconsistent positions. Each of these Presidents has attempted to control or avoid these conflicts by participating in the regulatory process, albeit in varying ways and with varying persistence. This participation has fueled the longstanding administrative law debate on the propriety and desirability of White House involvement in the agency rulemaking process.
White House staff members, congressmen, Washington lawyers, legal scholars, and even journalists have much of value to contribute to this debate. The views here expressed, however, are based on this writer's experience as General Counsel of the Environmental Protection Agency (EPA) and the Department of Health and Human Services (DHHS) during the Carter administration. Because, as Professor Davis states, the President "is politically accountable to the electorate and the agency is not," it is the President's responsibility to ensure consistent application of his policies by participating in the regulatory process. To this end, consultation and communication between the White House and the agencies are both desirable and necessary.
About the Author
Joan Z. Bernstein. B.A. 1948, University of Wisconsin; LL.B. 1951, Yale University. General Counsel, Environmental Protection Agency, 1977-1979; Department of Health and Human Services, 1979-1981. Member, District of Columbia Bar.
Citation
56 Tul. L. Rev. 818 (1982)