Disclosing 'political' oversight of agency decision making.

• Author: Mendelson, Nina A.

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action.

The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated with high levels of changes in agency rules. Further, this Article documents the comparative silence regarding the effect of that supervision. The Office of Management and Budget and the agencies generally do not report the content of supervision by presidential offices. They also do not report whether a particular agency decision is consistent with presidential preferences. Silence about content, this Article suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state.

This Article then argues for greater transparency. Agencies should be required to summarize executive influence on significant rulemaking decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to political reasons in reviewing a particular agency action. Finally, this Article suggests that while some, but not all, political reasons for agency action are legitimate, only a more transparent system--one that facilitates public dialogue and accountability to Congress--can fully resolve the question of which reasons are legitimate and which are not.

TABLE OF CONTENTS INTRODUCTION I. THE PRESIDENT AND EXECUTIVE BRANCH AGENCIES II. THE LACK OF MENTION OF POLITICS IN AGENCY DECISIONS III. INCREASING THE TRANSPARENCY OF EXECUTIVE REVIEW A. The Costs of an Opaque Process B. Making Presidential Influence More Transparent 1. Increasing Political Accountability Through Requiring Disclosure 2. Process and Enforcement Concerns 3. Judicial Review C. Political Reasons CONCLUSION INTRODUCTION

In the last few decades, scholars and judges have relied heavily on the presence of presidential supervision to lend legitimacy to executive branch agency action. (1) Executive branch agencies now possess considerable discretion to decide questions of value, such as how much risk government action should aim to address and how to balance economic costs against, say, safety or environmental protection. These aspects of agency decision making are generally not closely constrained by statute. And since they are not closely constrained by statute, they also may not be readily subject to other tools of accountability, such as rigorous judicial review. (2) In theory, presidential supervision can partially fill this gap by supplying political accountability. Further, anecdotal information suggests that executive supervision can have discernible effects on this type of agency decision.

Despite the claim of President-centered theories that such supervision can be an important source of agency accountability, agencies rarely, if ever, mention what might be termed political reasons in their decisions, particularly their rulemaking decisions. (3)

By "political reasons," I mean reasons communicated from a particular source (rather than reasons with a particular content). "Political reasons" in this Article are those contributed by or adhered to by the President and the politically-appointed executive officials who oversee the administrative process and who answer most closely to the President. While views of members of Congress could also count as "political reasons," I plan to focus on executive views. And in so doing, I am assuming that the views of White House officials entrusted with regulatory oversight, although they are not elected, and although the views may not be perfectly refined or channeled, are highly likely to reflect the President s positions. (4) So, for example, a agency deciding that the environment should get the edge over economic costs or that more immediate motor vehicle safety should yield to a desire for greater manufacturing flexibility, will not generally mention whether, or to what extent, its decision reflects or has been influenced by presidential views. Nor will the decision generally describe the content of those views, even though presidential preferences and the weighing of the relevant considerations by presidential advisors may frequently figure into the decision, particularly through the regulatory review process.

There are two strains in the literature regarding executive influence on agency decision making. Consistent with President-centered theories, many academics and judges argue that agency decisions are normatively better due to this influence, and indeed, that some sort of presidential supervision is necessary to the legitimacy of executive branch agencies because it represents a mechanism of electoral accountability. (5)

In some tension with this position, others have argued that an agency policy choice at the President's direction may not be particularly defensible and may even be outright tainted--a "source of danger rather than of accountability." (6) Jody Freeman and Adrian Vermeule recently argued that the Supreme Court may be increasingly concerned with "protect[ing] administrative expertise from political intrusion," at least at times of alleged "widespread tampering" with an agency decision-making process. (7) Some, including Thomas McGarity, have argued that agency decision making should be carefully insulated from presidential supervision, which might cause agencies to make decisions that are inappropriate, or worse. (8)

As a means of encouraging agencies to rely more explicitly on political reasons, including those coming from executive supervision, three scholars have suggested that judges should be more receptive to "politics" as they review agency decisions under the Administrative Procedure Act's "arbitrary and capricious" standard. (9) Christopher Edley, Dean of the University of California at Berkeley School of Law (Boalt Hall), has suggested that, in practice, courts "credit politics as an acceptable and even desirable element of decision making." (10) Former Harvard Law School Dean Elena Kagan has suggested that courts "relax the rigors of hard look review" if there is demonstrable evidence of presidential involvement in the administrative decision at hand. (11) Most recently, Kathryn Watts has also advocated for judicial acceptance of political reasons if such reasons reinforce "accountability, public participation, and representativeness." (12) Among other things, these commentators hope that greater judicial willingness to credit political considerations as legitimate will eliminate an obstacle to an agency's disclosure of those considerations and prompt greater (or more visible) presidential supervision of agency action.

This Article seeks to make some fairly simple points against the backdrop of the literature on presidential control of agencies. I first suggest that presidential, or executive, influence on an agency decision is not clearly good or bad. It can potentially be seen as either increasing or decreasing the legitimacy of an agency's decision depending on the content of the influence.

Second, I offer some current evidence both of an apparently significant level of White House influence on agency rules and of silence regarding the content of that influence, from both agencies and the Office of Management and Budget ("OMB"). Silence about content, I suggest, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state.

Third, rather than addressing the issue indirectly through judicial review, I suggest that we proceed directly to regulating procedure. We should require that a significant agency rule include at least a summary of the substance of executive supervision. Requiring greater transparency in the agency decision-making process may not only increase accountability for agency action, but also help to deter inappropriate presidential influence and prompt Congress to refine statutory requirements if appropriate. Judges could enforce disclosure requirements. In reviewing the decision under an arbitrary and capricious review standard, however, judges could be deferential regarding political reasons offered by the agency. Again, that would depend on the content of the reasons. A Department of Transportation ("DOT") automotive fuel economy rulemaking finalized in March 2009 may be a potential model. (13)

Fourth, requiring disclosure is superior to proposals solely aimed at modifying judicial review. Because expertise-focused judicial review is not the only obstacle to disclosing political supervision, adjusting judicial review is unlikely to significantly increase the transparency of agency decision making. Moreover, a number of such proposals place an inappropriate burden on the judiciary to distinguish good and bad political reasons. Requiring disclosure would instead be aimed at engaging the public and Congress regarding the appropriateness of particular reasons and of executive supervision in agency decisions.

Finally, I offer some preliminary thoughts on political reasons and discuss the sorts of political reasons that might taint or improve the quality of an agency decision. I conclude that any discussion of political reasons cannot be finally resolved without improving the transparency of the decision-making process. Such an enhanced process is likely to be our best method to realize the promise of accountability for agency action and for identifying and distinguishing good political reasons from bad ones.

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