January 31, 2007

Surely There Was A Better Use for Strauss

by PG

A New York Times article quotes Peter Strauss on the topic of an executive directive issued by Bush last week, which requires agencies to have a regulatory policy office run by a political appointee; to identify “the specific market failure” that justifies intervention; to give the White House an opportunity to review “any significant guidance documents” before they are issued; to have any guidance document expected to have an economic effect of $100 million a year or more posted on the Internet and to invite public comment on it; to keep guidance documents free of legal obligations not in the statute or regs, and of “mandatory language such as ‘shall,’ ‘must,’ ‘required’ or ‘requirement.’” And regarding this thicket, here's the quote we get from someone who literally wrote the book(s) on administrative law:

Peter L. Strauss, a professor at Columbia Law School, said the executive order “achieves a major increase in White House control over domestic government.”
“Having lost control of Congress,” Mr. Strauss said, “the president is doing what he can to increase his control of the executive branch.”
Having been in Strauss's admin class, I know he's not a Bush fan, but I can't believe that he didn't have something more useful to say about the implications of this directive. How about a historical refences to Reagan's requirement for cost-benefit analysis, comparing it to the demand for a "specific market failure"? or a challenge to the $100 million point for requiring public comment -- shouldn't notice-and-comment attend every government action with the effect of a regulation, even if it goes by the name "guidance document"? If there was going to be a separation of powers shout-out, couldn't it have been for the demand that a political appointee specifically vet promulgation of rules made pursuant to Congressional statute? (As opposed to the political positions of Administrator and Deputy Administrator, which require Senate confirmation. The EPA itself was formed under Reorganization Plan No. 3, which was submitted to Congress.)

I have no problem with the substance of Strauss's comment -- I just wish it had been more, well, substantial. The superficial reader is going to look at it and think "Um, isn't the president supposed to control the executive branch? Why is this a problem?"

January 31, 2007 02:32 AM | TrackBack
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