Inside the administrative state: a critical look at the practice of presidential control.

• Author: Bressman, Lisa Schultz

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the "presidential control" model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the president, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions--for example, that the president represents public preferences and resists parochial pressures--that do not hold up as a factual matter. Although recent empirical analyses purport to validate the model, they fall short because they examine how the White House exercises control without considering how agencies experience control. This Article is the first to study the practice of presidential control from inside the administrative state. We interviewed the top political officials at the Environmental Protection Agency from the George H. W. Bush and William J. Clinton administrations during 1989-2001. Our data, which do not vary substantially between respondents of different presidential administrations, suggest that White House involvement is more complex and less positive than previous accounts acknowledge. But we do not conclude that the presidential control model lacks merit. Indeed, our respondents recognize that the president has a role to play in controlling agency decision-making. We therefore conclude that the presidential control model requires reworking to remain valid in practice as well as in theory. We identify next steps in that direction.

TABLE OF CONTENTS INTRODUCTION I. THE PRESIDENTIAL CONTROL MODEL A. The Theoretical Debate B. The White House Experience 1. OIRA Review 2. General White House Involvement 3. Limitations II. THE AGENCY EXPERIENCE: SURVEY METHODOLOGY A. The Respondents B. The Survey Instrument III. THE AGENCY EXPERIENCE: SURVEY RESULTS AND CONCLUSIONS A. Sources of Presidential Control B. Regulatory Efficacy C. Other White House Involvement D. Political Accountability E. Faction Resistance IV. INSTITUTIONAL REFORM A. Transparency B. Lines of Responsibility C. Selectivity D. Timing of Review E. Focus on Costs F. Entrenchment of Career Staff CONCLUSION INTRODUCTION

Theories of agency decision-making necessarily depend on propositions about how the government works. If the propositions are inaccurate or incomplete, the theory is vulnerable. In this Article, we show that the currently dominant "presidential control" model of agency decision-making suffers from exactly that problem.

The presidential control model posits that the president sets national regulatory policy for agencies to follow. (1) But the presidential control model oversimplifies at the critical juncture, the point at which the agencies receive their directions from the White House. Like previous models, it offers abstractions--for example, that the president represents public preferences and resists parochial pressures--that founder on the facts. Although recent empirical analyses claim to validate aspects of the theory, they largely reproduce the generalities. Those empirical analyses seek to verify the model by examining White House sources, either the president's advisors or his regulatory review arm, the Office of Information and Regulatory Affairs ("OIRA"). But the studies are influenced by the theory. They consider how the White House exercises the control function without considering how agencies experience that control function.

This Article uses empirical methods to engage the theory in a more satisfactory way. It is the first to investigate the practice of presidential control from inside the administrative state. We interviewed the top political officials at the Environmental Protection Agency ("EPA") from the George H.W. Bush ("Bush I") and William J. Clinton administrations during 1989-2001. (2) We thus studied the agency with more high-cost rules than any other, across administrations of different political parties. (3) From this vantage point, we were able to observe whether the EPA experiences White House intervention in the way that the presidential control model supposes.

Our claim is not that agency insiders have any epistemic advantage in ascertaining whether the presidential control model is correct. Rather, we claim that agency officials are the right people to ask about the messages that they receive from the White House--and more particularly, whether those messages are rational and transparent and responsive and balanced, as proponents of the presidential control model contend. They are experts as to these facts.

EPA respondents suggest that the presidential control model paints too superficial a picture. Such respondents did not view White House involvement in EPA rule-making as working as well as it might. Furthermore, the Bush I and Clinton respondents did not reflect substantial differences in their views, suggesting that our results are not simply the product of one presidential administration or one political party. (4) In light of our evidence, we suggest that scholars should rethink the conventional wisdom that has prevailed in regulatory circles since the Reagan Era.

At the outset, we demonstrate that scholars may have underestimated the complexity of White House involvement. Presidential control is a "they," not an "it." (5) But EPA respondents did not merely confirm that both OIRA and other White House offices are involved in EPA rule-making. Rather, they indicated that OIRA is not the primary source of influence on many major rule-makings, as scholars typically assume. OIRA often takes a back seat to other White House offices when both are involved. Although OIRA exerts influence on many day-to-day issues, other White House offices often wield more influence on high-profile or high-stakes matters. EPA respondents also highlighted an ill-appreciated dynamic: White House offices form coalitions for or against the EPA. These coalitions frequently enlist OIRA to batter or shield the EPA rather than to avail themselves of the independent value of its regulatory review.

Conversely, we reveal that scholars may have overestimated the regularity of presidential control. According to EPA respondents, OIRA review and other White House involvement are unsystematic. Furthermore, both appear to be triggered in many cases not just by the need for centralized oversight of particular regulatory matters but also by the interest of the particular officials involved. Such selective intervention is not particularly surprising; realistically, the White House cannot--and perhaps should not--get involved in all regulatory matters. Furthermore, such selective intervention is not all bad. It may comport with political priorities and even facilitate political accountability where it happens to exist. The difficulty is that it may not serve to rationalize agency decision-making in the sense that a model of administrative law should.

We next show, contrary to widespread belief, that OIRA review may not achieve regulatory efficacy. OIRA staffers appear to have adequate institutional resources to perform cost-benefit analyses. And OIRA review appears to advance inter-agency coordination somewhat, minimizing overlaps and conflicts between or among the regulations of different federal agencies. But OIRA review does not achieve what might be called "intra-agency coherence," which includes reducing redundancies, avoiding inconsistencies, and eliminating unintended consequences between or among the regulations of a particular agency. (6) Thus, OIRA review fails to discharge one of the central purposes for which President Reagan created it and all subsequent presidents have maintained it. Furthermore, OIRA review regularly skews rulemaking in a deregulatory direction, even when doing so may be inconsistent with presidential priorities. We conclude that OIRA review is better thought of as serving a regulatory cost-reduction function rather than a more "neutral" role. (7)

We also cast doubt on the extent to which broader White House involvement promotes regulatory effectiveness, at least as to the EPA. EPA respondents confirmed what scholars already knew, that President Clinton issued few official directives to the EPA of the sort that he had issued to other agencies to energize them and induce them to take action. If White House involvement nonetheless prompted EPA respondents to take action, it was often by causing them to better defend existing regulatory proposals rather than to create new ones. Although valuable, this function is not what scholars envision when arguing that White House involvement improves regulatory effectiveness.

Perhaps even more noteworthy, we question whether presidential control facilitates political accountability. EPA respondents believed that they were more transparent and responsive than the White House. When asked to identify the aspects of the EPA process that provided greater public view and representation, respondents emphasized the notice-and-comment rulemaking procedures of the Administrative Procedure Act ("APA"), (8) various stakeholder and regional meetings, and Federal Advisory Committee Act ("FACA") requirements. (9) Respondents also indicated that the general media and trade press reported far less often on White House involvement in EPA rule-making. We conclude, somewhat paradoxically, that agencies, though not comprising elected officials, may better promote political accountability than the White House. Of course, political accountability may be defined in a variety of ways. If it turns solely on whether an elected official supervises agency decision-making, (10) then presidential control may fit the bill. But to the extent that political accountability encompasses more than formal or reflexive...