In his first week in office, President Barack Obama exercised unilateral executive power to mandate significant changes in federal policy and practice.
Three executive orders and a presidential memorandum mandate the closing of the detention facility at Guantánamo Bay, Cuba, and changes in interrogation and detention practices. Two executive orders and a memorandum reflect the president’s stated commitments to greater government transparency and heightened ethical standards. Another memorandum announces a pay freeze for political appointees in the executive branch. Yet another initiates an investigation into the treatment of a terrorism suspect not held at Guantánamo Bay and thus not covered by the executive orders and memorandum on the treatment of detainees.
The executive orders and memoranda implement some of Obama’s campaign promises. They fall squarely within the scope of tools presidents ordinarily use to shape executive branch policies and practices.
However, in addition to inheriting several crises requiring immediate attention, Obama also inherited unprecedented political and policy control over federal agencies. The 111th Congress, dominated by Democrats, may be tempted to defer heavily to the new president. Still, to preserve its status as a co-equal branch of government, Congress should expressly reject President Bush’s approach to regulatory control, even if it trusts Obama to use executive authority prudently.
A welcome revocation
Obama alleviated many concerns on Jan. 30, when he revoked Bush’s most far-reaching claim of control over agency regulations. Executive Order 13422, which Bush issued in January 2007, replaced career civil servants steeped in the specific missions and subject-matter expertise of their agencies with political appointees. The order required agencies to justify proposed regulations by proving “market failure” even when Congress mandated instead the pursuit of other goals, such as public health or workplace safety.
Citing these and other features of the order, a Jan. 13, 2009, House Judiciary Committee Staff Report said that Executive Order 13422 gave the president undue control over federal agency rulemaking while circumventing legislative intent.
Obama’s revocation of E.O. 13422 will curb excessive presidential control over regulatory actions, but it does not obviate the need for Congress to assert its constitutional prerogatives. Obama will be in office for only eight years, at most. Unless Congress reclaims its authority over agency policymaking, nothing will stop a new president from reviving Bush’s view of executive power.
Still risks of improper criteria
Additionally, although Obama rejected his predecessor’s starkest abuse of executive authority over agencies by revoking E.O. 13422, the president’s appointment of Cass Sunstein, a strong proponent of cost-benefit analysis, to head the Office of Information and Regulatory Affairs, suggests that the use of cost-benefit analysis in regulatory assessment will be buttressed. Such use may cause agencies to abandon salutary regulations because of the financial burdens on the affected industries.
For example, an affected landowner can express clearly the financial impact of species habitat preservation on his corporate profits. In contrast, it is difficult, if not impossible, to quantify the benefits of saving a species in comparable terms. If Congress mandates species preservation efforts without authorizing the use of cost-benefit analysis in the regulatory process, the president may not properly insist on its use.
Congress should resist the temptation to defer broadly to Obama’s regulatory policy initiatives. The president was a U.S. senator and taught constitutional law — experiences that surely have enhanced his awareness of the delicate and nuanced relationship that exists among the three co-equal branches of government.
Historically, however, presidents have asserted their executive authority with eager energy. Congress has both the constitutional right and duty to see that federal agencies carry out only the policy goals it authorizes. To assert and preserve its legislative authority under Article I of the Constitution, Congress should express its views on regulatory policy through statutes.
For example, it can dictate the circumstances under which agencies are permitted to engage in cost-benefit analysis and define what such analysis should include.
In addition, Congress should protect itself from future presidents who would overtake its constitutional role in policy-making. The surest way to achieve this is statutory prohibition of the E.O. 13422 features that intruded on congressional prerogatives. Obama’s revocation of the order is a necessary but insufficient step toward preserving Congress’ constitutional role in regulatory policy.
Muriel Morisey is an associate professor at Temple University Beasley School of Law, where she teaches and writes on legislation and administrative law. She worked in the U.S. Justice Department’s Office of Legislative Affairs during the Carter administration and in the department’s Civil Rights Division during the transition to the Reagan presidency.