- Press accounts concerning the changes President Bush has made to White House regulatory review procedures show that reactions have been largely partisan, and thus predictable and uninformative. We posted a three-part series analyzing the text of Executive order 13422 found here, here, and here.
One important question has not arisen in these press accounts, but should have. Historically, it has been the vice president who has been given the authority to decide matters of regulatory controversy within the Executive branch. But the veep isn’t mentioned in Executive order 13422. Where did he go?
Executive order 12291, issued by President Reagan, in 1981, established a Presidential Task Force on Regulatory Relief which was headed by the vice president. Throughout the Reagan and Bush 41 administrations, the activities of the Task Force were regarded as controversial. It was alleged that the Task Force was constitutionally illegitimate because it conferred on the vice president powers reserved for agency heads; that it usurped the authority of Congress to conduct oversight; and that its procedures and practices were opaque and thus invited arguably impermissible ex parte communication with special interests.
This opposition arose from three overlapping groups:
- Democrats, who were in partisan opposition to Republican administrations
- Interest groups whose policy agendas were contrary to those of the administration but often aligned with the bureaucratic agendas of federal regulatory agencies
- Members of Congress, who objected to what they perceived as presidential interference with their statutory directives to the heads of Executive branch agencies
There is nothing remarkable about opposition based partisan or policy differences. But the third category is more interesting because it reflects a longstanding and fundamental institutional contest between the two political branches of the government over primacy in regulatory decision making. Do agency heads work for the president or for the Congress? When Congress delegates legislative authority to an Executive branch agency, can that delegation of power circumvent the president or is the president (and not his appointees) ultimately responsible to “take care that the laws be faithfully executed” (Article II, Section 3)? These issues were debated then, as they were before and always will be, without consensus.
When President Clinton issued Executive order 12866 in 1993, not only did he retain the role of the vice president in the regulatory review process, but he expanded it. Instead of being merely the chairman of a task force, the vice president explicitly became the final decision maker on regulatory controversies. Despite this increase in explicit vice presidential authority and power, it generated little controversy. Moreover, argument about the constitutionality and political legitimacy of White House oversight did not recur. This suggests that opposition to White House oversight during the Reagan and Bush 41 administrations, however it was expressed, was almost entirely driven by partisanship and policy. Further, the arguments that had been routinely made against White House oversight were instruments to advance partisan and policy objectives. Thus it should have been no surprise that these arguments resurfaced only after the election of Bush 43 in 2000.
But what happened to the role of the vice president? There seems to be no public record of Vice President Cheney taking on the authoritative role on regulatory matters that Vice President Gore had played without great controversy. Whatever this role, it was short lived.
In 2002, President Bush issued Executive order 13258. It completely removed any formal role for the vice president as the arbiter of interagency conflicts and regulatory controversies. In place of the vice president, the authority to make these decisions was given to the Director of the Office of Management and Budget. This action generated virtually no public attention. A search of the Washington Post archive for 2002, for example, yields nothing.
In our third post on the recent changes to the White House regulatory review process, we noted that critics say the new scheme usurps congressional powers. Although not clearly stated as such, this is actually a recurrence of the (nominally) constitutional debate that arose in 1981, vanished in 1993 with the ascension of a Democrat president, and returned in 2001. We’ve seen these claims made again, as if they were new, in the context of Susan Dudley’s nomination to head OMB’s Office of Information and Regulatory Affairs. Because White House regulatory oversight is constitutionally “controversial” only during Republican administrations, it is not a genuine constitutional controversy.
Critics also say that the new regulatory planning provisions make it harder for Congress to perform its constitutionally prescribed oversight function. In our third post we showed that these claims can’t be supported by the text. Regulatory Policy Officers are an artifact of the Cllnton era Executive order, and their creation then caused no controversy. Yet they could not be called to testify before Congress if they were civil servants.
Executive order 13422 requires that Regulatory Policy Officers be Presidential Appointees, which makes them more accountable to Congress rather than less. (If there’s an issue, it’s moot if all Regulatory Policy Officers appointed since 1993 have been Presidential Appointees. In that case, the change in text means no change at all in practice.)
Finally, critics who say the new scheme makes the administration less accountable to Congress have ignored Executive order 13258. Congress has no way to hold vice presidents accountable short of impeachment. By removing the vice president from this oversight role and delegating it to the OMB director, President Bush made White House review and oversight much more accountable to Congress than it was during the Clinton administration. Unlike the vice president, the director of OMB is subject to Senate confirmation and can be called to testify.