exercising his supervisory authority, the court said: "Yet, the use of EO 12291 to create delays and to impose Concerns about displacement of EPA decisionmaking have been given new force by the activities of the Competitiveness Council. The Council's effective veto of EPA's 25 percent recylcing requirement for incinerators illustrates these concerns. Going into the meeting of the Council on December 19, 1990, EPA Administrator William Reilly strongly supported the requirement, which he had touted as an indication of EPA's commitment to stimulating greater recycling efforts. Following the Council meeting, however, Reilly stated that he would not proceed with the proposal because of objections from the Council.61 Under these circumstances it is clear that but for the actions of OMB and the Council on Competitiveness, EPA would have promulgated the recycling requirement. Thus, regulatory review clearly affected the substance of an EPA regulation in a significant manner. Whether this illustrates illegal displacement of EPA 60 Environmental Defense Fund v. Thomas, 627 F. Supp. 566 (D.D.C. 1986). 61 Michael Weisskopf, "EPA Proposal on Recycling Is Trashed," Washington Post, Dec. 20, 1990, p. A17. decisionmaking is less clear. Executive Orders 12291 and 12498 attempt to avoid serious legal and constitutional difficulties by tempering the expansive scope of the review authority granted to OMB. Both orders provide that OMB is authorized to take action only "to the extent permitted by law, "62 and they exempt from OMB review regulations for which such review would conflict with statutory or judicial deadlines.63 Executive Order 12291 also specifies that nothing in the order "shall be construed as displacing the agencies' responsibilities delegated by law. 164 These provisions repeatedly are cited whenever the legality of OMB's actions is challenged. The Department of Justice has acknowledged the importance of interpreting the executive orders in a manner that avoids a collision with constitutional principles of separation of powers. In its opinion supporting the legality of EO 12291, the Department emphasized that "the President's exercise of supervisory powers must conform to legislation enacted by Congress." Therefore, "[i]n issuing directives to govern the Executive Branch, the President may not, as a general proposition, require or permit agencies to transgress boundaries set by Congress. 165 To prevent the 62 EO 12291, §§ 2, 3(a), 6(a), 7(e); EO 12498 § 4. 63 EO 12291, § 8(a) (2); EO 12498, § 3 (c). 64 EO 12291, § 3 (f) (3). 65 Memorandum from U.S. Department of Justice, Office of Legal Counsel, Proposed Executive Order Entitled "Federal Regulation" (Feb. 13, 1981), reprinted in Role of OMB in Regula President from usurping authority delegated to EPA, the executive orders are founded on the theory that OMB's role is an "advisory and consultative" one that does not include authority to reject an agency's ultimate judgment on matters delegated to it by law. OMB officials have recognized the importance of this distinction for preserving the legality of the regulatory review program. OIRA has been sensitive to charges that it has violated the law. Fear that OMB would be subject to legal action or an adverse judgment in court occasionally has resulted in rapid clearance for regulatory packages. Dictum in Judge Wald's majority opinion in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) provides the clearest judicial support for regulatory review. In Sierra Club v. Costle, EPA officials had met with the President to discuss a regulation EPA was about to promulgate. The court held that EPA's failure to mention this meeting in the rulemaking docket did not invalidate the regulations because they were not based on information arising from the meeting. In dictum oft-cited by supporters of the Reagan administration regulatory review program, Judge Wald recognized not only the constitutional authority of the President to supervise executive policymaking, but also the desirability of such Presidential oversight. Judge Wald's opinion, however, also recognizes limits on the President's supervisory authority. Her discussion of the relationship between the President and the EPA Administrator appears to assume that the Administrator retains ultimate responsibility for the regulatory decision. Judge Wald notes that the Administrator "needs to know the arguments" of White House staff, not that he must ultimately adopt them. She recognizes that the President may be successful in "prodding" the Administrator into adopting a different regulation, but she does not imply that the President has the authority to dictate the result.66 As a practical matter, the President's ability to fire the EPA Administrator gives him enormous power to influence EPA decisions. Moreover, Judge Wald's opinion suggests that if the President is successful in persuading the EPA Administrator to change his decision, the regulations would still be upheld unless they lacked adequate support in the rulemaking record. But this does not necessarily imply that the President has the authority to make the decision for EPA. In Morrison v. Olson, 108 S.Ct. 2597 (1988) the Supreme Court explicitly rejected the notion that 66 Sierra Club v. Costle, 657 F.2d at 408. 67 67 "After all, any rule issued here with or without White House assistance must have the requisite factual support in the rulemaking record, and under this particular statute the Administrator may not base the rule in whole or in part on any information or data which is not in the record, no matter what the source." Sierra Club v. Costle, 657 F.2d at 408. But cf. Public Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1507 (D.C. Cir. 1986) (declining to reach issue of OMB's authority because agency action taken at OMB's behest was without support in the record, but noting that OMB's role in the decision "presents difficult constitutional questions concerning the executive's proper role in administrative proceedings and the appropriate scope of delegated power from Congress to certain executive agencies"). Congress could not limit or condition the President's constitutional authority to supervise the actions of executive branch officials. Historical understandings and the text of Article II support the notion that "the President is not authorized either to make particular decisions statutorily vested in at least some subordinate officials, or to direct those officials to make particular decisions except insofar as the prospect of removal operates as such a direction."68 Under this view, if the EPA Administrator refuses to make a particular decision that the President wishes him to make, the President's only recourse is to discharge him and appoint a new Administrator who shares the President's views. As a practical matter, few agency heads would defy the President at the risk of losing their job. However, this does not imply that the President has the authority to make the decisions for them. Political constraints on the President's removal power, as illustrated not only by the history of the Watergate controversy but also by the history of regulatory review of agency decisionmaking, 69 dictate that it will be used sparingly. An even clearer limitation on the President's supervisory authority is that it may not be used to produce decisions that 68 Peter L. Strauss & Cass R. Sunstein, "The Role of the President and OMB in Informal Rulemaking," 38 Admin. L. Rev. 181, 201 (1986). 69 see text accompanying notes 19, 20 & 31, supra. |