Optimizing OMB: Response to The President's Budget as a Source of Agency Policy Control

• Date: 01 August 2017
• Author: Ali A. Zaidi

47 ELR 10708 ENVIRONMENTAL LAW REPORTER 8-2017

C O M M E N T

Optimizing OMB: Response

to The President’s Budget as a

Source of Agency Policy Control

by Ali A. Zaidi

Ali A. Zaidi is a Senior Advisor to Morrison & Foerster, a Precourt Energy Scholar at Stanford University, and a non-

resident Fellow at Columbia University. Mr. Zaidi formerly served in the Obama Administration, and President Obama

appointed Mr. Zaidi to be the Associate Director for Natural Resources, Energy, and Science at the White House Oce

of Management and Budget in 2014. e views expressed in this Comment are exclusively the author’s own.

No single va lue denes a budget. Rather, a bud-

get is many values, competing and clashing over

common currency, suspended for a moment to

showcase a normative expression of where we intend to go

as a nation—and how. In our government, the budget is

also a proposal, the President’s pitch deck to the holders

of the purse strings. A nd until Congress acts, there is no

billing to the budget. ‘We the People’ use this annual pro-

cess to determine how we tax ourselves, pay o our debts,

and invest in our future—how we come together as a one

people around shared challenges and opportunities. In a ll

of this, we have help: the Oce of Management and Bud-

get (OMB).

Despite t he budget’s existential tie to the administra-

tive state and OMB’s central role in the annual process

surrounding the budget—from development to execu-

tion, legal literature devotes little attention to either. In

her art icle, Prof. Eloise Pasacho attempts to reverse this

inattentiveness. e treatment is trenchant a nd t hought-

ful. Yet, perhaps borne of epistemological reasons rooted

in the OMB-opacity her article bemoans, the treatment—

at times—attens context and complexity. With aim at

adding more completeness by acknowledging context a nd

complexity that the article either misses or minimizes, I

oer three global comments regarding: (I) atomization,

(II) accountability, and (III) agenda setting. e rst

focuses primarily on OMB’s budget execution role, the last

focuses on OMB’s budget development role, and the com-

ment on accountability has application across both.

I. In the Atomized Administrative State,

OMB Must Orchestrate Harmony

Today’s administrative state is a bottom-up development;

each new bill adds or subtracts, often with ambivalence

about implementation impacts on the overall enterprise.

e result is clear—an atomization of authorities. Yet, why

this comes to be remains unclear. Explanations range from

cynical to optimistic to unintentional: perhaps, atomiza-

tion exists bec ause Congress seek s to inhibit rapid cha nge

or limit any one president’s inuence.1 Maybe, Congress is

motivated by the complexity of systemwide change and, as

a result, is assembling—not atomizing—all hands on deck

for our biggest problems.2 Or possibly, the atomization is

“mostly accidental,” the fallout from “a legislative process

that occurs on a rolling basis over time, producing incon-

sistencies, ineciencies, and unintended consequences.”3

Whatever the genesis story for our atomized adminis-

trative state, OMB must orchestrate ha rmony. e task is

not easy, but it is increasingly important. e eects of the

atomized administrative state are accentuated by the world

we live in—one growingly dened by the ubiquity of data

and connecting technology, decentralization of power and

governance, and unpredictability of threats. If it were not

enough that the administrative state developed in an atom-

ized fa shion, the world in which it operates is dominated

by a centrifugal force, pulling each atom away from the

center and making the problem worse.

To be sure, the full frenzy that furrows the OMB brow

cannot be within scope for Professor Pasacho’s treatment.

However, the atomized nature of our administrative state,

the centrifugal force accentuating the eects of atomiza-

tion, and the increasingly demanding task of harmoniza-

tion a ll belong in a complete conversation about OMB’s

budget execution function for three reasons.

First, with similar or conicting authorities placed at

dierent agencies across government, OMB must—dur-

ing the kinetic process of budget execution—attempt to

orchestrate real-time harmonization. Second, OMB must

complete its ha rmonization task in the fac e of non-linear

1. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space,

125 H. L. R. 1131 (2012) 1138-43.

2. Id.

3. Id. at 1143.

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