The President's Budget as a Source of Agency Policy Control

• Date: 01 August 2017

47 ELR 10698 ENVIRONMENTAL LAW REPORTER 8-2017

A R T I C L E

The President’s Budget as a

Source of Agency Policy Control

by Eloise Pasacho

Eloise Pasacho is a Professor of Law at Georgetown University Law Center.

I. Introduction

One of the secrets only the initiated know is that those

who labor here [at the Oce of Management and Budget]

for long do so because the numbers are the keys to the

doors of everything. Spending for the arts, the sciences,

foreign policy and defense, health and welfare, educa-

tion, agriculture , the environment, everything —and rev-

enues from every source—all are re ected, recorded, and

battled over—i n numbers. And the sums of t he numbers

produce sc al and moneta ry policy. If it matters—there

are numbers that dene it. And if you a re responsible

for advising t he president about numbers, you are—de

facto—in the strea m of every policy decision made by the

federal government.

—Paul O’Neill, Former De puty Director of OMB.1

Scholarsh ip on administrative law is replete with analysis

of presidentia l control of execut ive agencies t hrough cen-

trali zed review of regulations in t he O ce of Informa-

tion and Regulatory Aairs (OIRA), part of the White

House’s Oc e of Management and Budge t (OMB).

While t he literature is sharply divided as to whether

OIRA’s control is salutary or da ngerous, the literature

largely shares an underlying framework within wh ich the

subject matter is d iscussed: it tends to focus on regula-

tions as the primary lever through which OMB aects

agencies’ policy choices.

is portrayal of OMB as an institution for a sserting

presidential control over the administrative state is incom-

plete. Reviewing regulations is not t he only policy lever

OMB has to control executive agencies’ policy choices. In

fact, it may not even be the main one. e budget itself—

the core reason for OMB’s existence—is a key tool for con-

trolling agencies.

1. Bernard H. Martin, Oce of Management and Budget, in G I

D: A G  G E 72 (Mark A. Abramson et

al. eds., 2013).

is Ar ticle expa nds the view of centra lized control of

the ad ministrative state by describi ng, categoriz ing, a nd

analyzing the processes by whic h OMB u ses the bud-

get to get “ in the stream of eve ry policy decision made

by the federal government.”2 e Artic le then assesses

OMB’s budget work a gainst administ rative law values

and oers recommenda tions f or how this work can bet-

ter foster accou ntabilit y.

II. OMB’s Control of Agency Policymaking

Through the Budget Process

At the core of OMB’s budget work are ve Resource Man-

agement Oces (RMOs). Together, the RMOs oversee the

entire administrative state— cabinet departments, other

executive agencies, and independent agencies—in groups

organized by subject matter: Natural Resource Programs;

Education, Income Maintenance, and Labor Programs;

Health Programs; General Government Programs; and

National Security Programs.3

Almost half of OMB’s 435 employees work in the

RMOs.4 At the helm of each RMO is a political appoin-

tee—not Senate conrmed—called a Program Associate

Director or PAD.5 e RMOs are f urther orga nized into

distinct divisions, each run by a career member of the

Senior Executive Service, called a Deputy Associate Direc-

tor, or DAD.6 Each division is then split into branches run

by a career ocial called a branch chief.7 e remainder of

the sta members within each branch are called program

examiners, with primary oversight responsibility over part

of a large agency, several smaller agencies, or some com-

bination thereof.8 In keeping with the high expectations

for RMO sta in general, program examiners tend to be

2. See id.

3. Oce of Management and Budget Organizational Chart, U.S. G’ M-

, http://perma.cc/YWL6-LBT9.

4. See S L T, I OMB: P  P  

P’ B 12 (1998).

5. See id.

6. See id. at 12–13.

7. See id. at 13.

8. See id.

is Article is adapted from Eloise Pasacho, e President’s Budget

as a Source of Agency Policy Control, 125 Y L.J. 2182 (2016),

and is reprinted with permission.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.