Academic journal article Case Western Reserve Law Review

The President and the Constitution

Academic journal article Case Western Reserve Law Review

The President and the Constitution

Article excerpt

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.... The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.... With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. (1)

CONTENTS

I.   THE UNMEDIATED AND MEDIATED PRESIDENCIES
II.  OBSTACLES TO RECLAIMING ACCOUNTABILITY
CONCLUSION

In the immediate wake of the November 2014 by-elections, the New York Times quoted an e-mail characterizing their results as "the final chapter in making the president small." (2) As a political assessment, perhaps, but the results leave President Obama in precisely the position George Bush occupied following the by-election of 2006, and President Bush's actions in the following two years hardly suggest presidential shrinkage. January 10 saw his initiation of a troop surge in Iran, 20,000 additional American military committed to that campaign, while the war in Afghanistan continued unabated. Eight days later, on the day before the new Congress convened, he published an executive order amending Executive Order 12,866. (3) Executive Order 12,866 is the executive order under which, since the Clinton administration, the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs (OIRA) had been supervising agency analyses of important proposed regulations' expected impacts, costs, and benefits. (4) President Clinton's order had required each agency to appoint an internal Regulatory Policy Officer (RPO) to coordinate interactions with OIRA. But the agency head, not the RPO, was to take personal responsibility for agency rulemaking. (5) The agency head appointed the RPO, and the order required that the RPO report to her. (6) The new Bush amendments deleted both "report to the agency head" and the agency head's need personally to approve rulemaking activity; now, instead, RPOs must be presidential appointees--that is, formally answerable to him--and "[u]nless specifically authorized by the head of the agency, no rulemaking shall commence nor be included on the Plan" without the RPO's approval. (7) The White House had effectively wrested control over agency rulemaking from the hands into which Congress had placed it. (8) The following two years were marked by continuing perceptions that White House politics were distorting or suppressing regulators' scientific judgments; in one example Professor Heidi Kitrosser notes in the new book that is one subject of this essay, (9) President Bush's OIRA suppressed greenhouse gas rulemaking, simply by refusing to receive the extensive scientific analysis and regulatory proposals the Environmental Protection Agency (EPA) had developed in the wake of the Supreme Court's decision in Massachusetts v. EPA. (10)

Perceptions of President Bush's politicization of administrative processes helped fuel President Obama's successful first campaign. Restoring the integrity of government science was among his first promises to the American people on assuming office. (11) Yet similar uses of White House offices to suppress regulatory efforts in the service of political ends marked the run-up to his reelection in 2012 (12) and perhaps the 2014 by-elections as well. President Obama's efforts to act on his own in the face of a dysfunctional Congress have been widely remarked upon, (13) and he used his first press conference following the 2014 by-elections to make clear that he expected to continue efforts to govern with the authority he has. (14) With loss of control over the Senate as well as the House, the coming two years seem likely to see for him, as they did for Presidents Clinton and Bush, further steps toward tight political control of government regulatory effort. …

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