Who's in Charge - Does the President Have Directive Authority over Agency Regulatory Decisions
![handle is hein.journals/flr79 and id is 2503 raw text is: WHO'S IN CHARGE? DOES THE PRESIDENT
HAVE DIRECTIVE AUTHORITY OVER AGENCY
REGULATORY DECISIONS?
Robert V. Percival*
Most regulatory statutes specify that agency heads rather than the
President shall make regulatory decisions .1 Yet for more than four decades
every President has established some program to require pre-decisional
review and clearance of agency regulatory decisions, usually conducted by
the Office of Management and Budget (OMB).2 On January 18, 2011,
President Barack Obama joined his seven predecessors in expressly
endorsing regulatory review when he signed Executive Order 13,563.3
President Obama's regulatory review program generally emulates those
of his two most recent predecessors, relying on OMB's Office of
Information and Regulatory Affairs (OIRA) to review only the most
significant agency rulemaking actions.4 Although this form of presidential
oversight of rulemaking is now well established, an important, unresolved
question is whether the President has the authority to dictate the substance
of regulatory decisions entrusted by statute to agency heads. While
proponents of a unitary executive argue in favor of presidential directive
authority,5 this article demonstrates that each President's regulatory review
program has disclaimed such authority, even though OIRA at times has
tried to displace agency decisionmaking.
* Robert Stanton Professor of Law and the Director of the Environmental Law Program,
University of Maryland School of Law. The author would like to express his appreciation to
Peter Hogge, Esther Houseman, Megan Marzec, Molly Madden, and Helena Mastrogianis
for their outstanding research assistance with this Article.
1. See, e.g., Clean Air Act § 109, 42 U.S.C. § 7409 (2006) (specifying that the
Administrator of EPA shall promulgate and regularly review and revise national ambient air
quality standards for air pollutants).
2. The history of presidential review of rulemaking is comprehensively reviewed in
Robert V. Percival, Checks Without Balance: Executive Office Oversight of the
Environmental Protection Agency, 54 LAW & CONTEMP. PROBS. 127 (1991) [hereinafter
Percival, Checks Without Balance], and Robert V. Percival, Presidential Management of the
Administrative State: The Not-So-Unitary Executive, 51 DuKE L.J. 963 (2001) [hereinafter
Percival, Presidential Management].
3. Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011).
4. See id. § 1(b), 76 Fed. Reg. at 3821. President Obama's executive order
supplements and reaffirms the existing regulatory review program established by President
Bill Clinton under Executive Order 12,866, 3 C.F.R. 638 (1994), and continued by President
George W. Bush. See Exec. Order No. 13,422, 3 C.F.R. 191 (2008); Exec. Order No. 13,258,
3 C.F.R. 204 (2003).
5. See, e.g., STEVEN G. CALABRESI & CHRISTOPHER S. Yoo, THE UNITARY EXECUTIVE:
PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008).
2487](ViewImageLocal?handle=hein.journals/flr79&div=86&collection=&method=preview&ext=.png&size=3)
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Who's in Charge - Does the President Have Directive Authority over Agency Regulatory Decisions
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