The Unitary Executive and the Modern Presidency

The Unitary Executive and Review of Agency Rulemaking

The Unitary Executive and review of agency rulemaking k melanie฀marlowe A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. —alexander฀hamilton,฀"federalist฀no.฀70" Beginning with the first administration under the Constitution of 1789, American presidents have sought to control policy formation and the actions of subordinates in the departments and agencies of the federal government. This search for control has largely been accomplished through the issuance of executive orders and presidential proclamations to individuals serving in the executive branch. The first executive order, signed by George Washington, required officials in the new government who had been in office under the Articles of Confederation to submit a report that would give him “a full, precise, and distinct general idea of the affairs of the United States” in their domain.1 The Proclamation of Neutrality,issued by Washington in 1793,instructed government officials to prosecute individuals who violated the terms of the proclamation.2 In the twentieth century, presidents attempted, through various means, to gain control over a growing bureaucratic government.Theodore Roosevelt sought to limit communication between government officers and members of Congress. He issued Executive Order 163, prohibiting employees of executive departments from attempting to influence legislation“before Congress or its committees.”3 Franklin Roosevelt, president during two of the greatest crises in the history of the United States, established new 78 : MElanIE MarlowE agencies designed to exercise some measure of control over the American economy.4 He also signed an executive order moving the Bureau of Budget from the Department of Treasury to the Executive Office of the President.5 Lyndon Johnson issued Executive Order 11,246,requiring executive agency and department heads to “establish and maintain a program of equal employment opportunity.”6 With the rise of the administrative state,and particularly with the rapid growth of federal regulatory activity since 1970, presidents have made a special effort to gain some control of the agency rulemaking process in order to develop a unified,coordinated regulatory program that is consistent with, or at least not subversive of, their policy priorities. Attempts to exercise this control have been met with varying reactions from Congress, which creates federal agencies, federal courts, and, increasingly in recent years, public interest groups. Challenges to presidential control over the federal bureaucracy have been based on assertions that such control is both unconstitutional and bad policy.7 This chapter describes the development of presidential review of regulatory policy and focuses on President Nixon and his successors. It explains the programs these presidents implemented and some of the criticisms and institutional obstacles they confronted, and it concludes with a consideration of what greater executive oversight of regulatory activity might hold for the future.While presidents have been able to exert more control over some aspects of agency rulemaking, there remain questions about the constitutional foundations of and practical purposes served by the exercise of presidential regulatory review.Constitutionally and practically, oversight of regulatory review properly belongs with the president. The Unitary Executive The text of the Constitution is clear:Article II vests“the executive Power in a President of the United States.”Unlike the authority granted to Congress in Article I and to the federal judiciary in Article III,Article II includes no qualifying provision in the vesting clause that would diminish the grant of authority or indicate that either of the other branches of government has the executive power.8 At the Constitutional Convention, the framers rejected proposals for a plural executive or an executive council in favor of one president who would hold office with the possibility of being reelected indirectly by the people.9 Hamilton argued that the unitary nature of the executive could review of agency rulemaking : 79 be “destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority, or by vesting it ostensibly in one man, subject in whole or in part to the control and cooperation of others, in the capacity of counselors to him.”10 Article I, section 8, provides Congress with the authority to create executive departments and officers necessary to assist the president in the execution of the responsibilities of office. Congress, however, may not create officers entirely isolated from presidential control; such a move...