CRS-17 authority was restored to OMB in the 1980 Paperwork Act, but only in modified form: an OMB veto may now be overridden by a majority vote of the subject commission. 44 U.S.C. 3507(e)(1982). Finally, it may be noted that Congress has directed OMB to promulgate rules pursuant to the public participatory procedures of the APA under the Paperwork Act, 44 U.S.C. 3516 (1988) and the Privacy Act, 5 U.S.C. 552a(f)(1988), and to make publicly available any communications from or to OIRA employees from either non-governmental persons or agencies respecting a proposed information collection request. 44 U.S.C. 3807(h) (1988). The most recent pronouncements of the Supreme Court respecting Congress' authority to structure the administrative bureaucracy would appear to strongly support the constitutional validity of the public disclosure and accountability provisions proposed under S. 1942 against a claim of encroachment on or interference with the President's ability to carry out his constitutional functions. Under the Court's decisions in Morrison v. Olson, 487 U.S. 654 (1988) and Mistretta v. United States, 488 U.S. 361 (1989), the burden is now on the executive to demonstrate that the complained of congressional action has either reassigned one of his core functions to another branch or is an exercise of the function by Congress itself. Proof of encroachment or aggrandizement, normally shown as an incursion on a textually committed power, ends the inquiry without more. But if the matter involves the congressional ordering of arrangements between agencies of shared responsibility, the Executive must demonstrate that the challenged arrangement, first, prevents him from carrying out his constitutionally assigned functions and then, if it does, that the congressional action is not justified by an overriding need to accomplish some legitimate legislative goal. Application of this standard to the imposition on OIRA of the proposed disclosure and accountability requirements of S. 1942 would appear to raise no constitutional doubts as to its validity. There can be no question of congressional "aggrandizement" of executive powers or functions. Congress has retained for itself no powers of supervision or control over the regulatory review activities of the OMB Director or OIRA Administrator. Moreover, the functions of OIRA are unlikely to be found to undermine impermissibly the powers of the Executive branch or to disrupt the proper balance between the coordinate branches by preventing the Executive branch from accomplishing its constitutionally assigned duties. The President's ability to communicate with and influence executive departments and agencies, either directly or through OIRA, is in no measure significantly diminished. His authority to dismiss all agency officers covered by E.O. 12291 is totally unaffected. Establishing and maintaining up-to-date and accurate dockets will certainly add to OIRA's administrative burden, but we are aware of no pertinent case precedent in which such a burden has been deemed to have constitutional significance. In any event, the rather substantial record of abuse of the regulatory review that has been established is likely to be seen as evidence of Congress' overriding need to accomplish the legitimate goal of safeguarding the CRS-18 fairness and integrity of agency decisionmaking through the informal rulemaking process. Finally, any argument that application of S. 1942's sunshine procedures to such entities as the Council on Competitiveness chaired by the Vice President is constitutionally suspect would appear to have been substantially muted by the decision in Meyer v. Bush, Civil Action No. 88-3112, D. D.C., Sept. 30, 1991. That case concerned a request for documents under the Freedom of Information Act (FOIA) from the Presidential Task Force on Regulatory Relief chaired by then Vice President George Bush. The Task Force refused to allow disclosure on the ground, inter alia, that it was not covered by FOIA. The court disagreed. It noted that "[i]n determining whether an entity is an agency, courts have focused on the duties of the entity." Reviewing the relevant case law, it concluded that where an entity's functions include both the duties to advise and assist the President and to oversee and/or coordinate the activities of Federal agencies, or perform other operational functions, it has been deemed to be covered by FOIA. See, e.g., Energy Research Foundation v. Defense Nuclear Safety Board, 917 F.2d 581, 584-85 (D.C. Cir. 1990); Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C. Cir. 1980); Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980); Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971). Thus, "the fact that the Task Force was created by the President is irrelevant to the inquiry of whether it merely existed to assist and advise the President. In addition, defendants' characterization of the Task Force as an 'internal managerial tool to coordinate regulatory policy in the executive branch' does not alter either the authority vested in the Task Force under E.O. 12291 or the actions of the Task Force pursuant to that authority." Slip Opinion at 12-13. After reviewing the authority of the Task Force under E.O. 12291, and the manner in which it had exercised that authority, the court noted that "Executive Order 12291 indicates that the Task Force had substantial, independent, directorial authority" and had exercised it. Id. at 13-16. The court concluded that "In light of the current state of the law and in consideration of the sweeping role the Task Force controlled in bringing agencies, in effect, to a halt, it is evident that the Task Force is an agency subject to FOIA." Id. at 16. It is indisputable that the Council on Competitiveness is the legal successor to the powers, functions and duties of the Task Force, see Office of Management and Budget, "Regulatory Program of the United States Government, April 1, 1991-March 31, 1992" at p. 3, and has been exercising those powers, duties and functions, see e.g., OMB Watch and Public Citizen's Congress Watch, "All The Vice President's Men: How The Quayle Council on Competitiveness Socially Undermines Health, Safety, and Environmental Programs (September 1991). It is therefore likely that a court reviewing the issue would find that the Competitiveness Council is an agency for FOIA purposes. Since there have never been claims in any of the foregoing cases that Congress could CRS-19 not constitutionally subject an operational presidential agency to FOIA requirements, it is doubtful that it would be in the present instance. If it were to be made, it is likely to fail for reasons more fully elaborated above. Ив Ресив Morton Rosenberg Specialist in American Public Law CRS Congressional Research Service The Library of Congress Washington, D.C. 20540 You have asked that we supplement our memorandum of November 14, 1991, dealing with the legal and historical precedents supporting public disclosure and accountability provisions in S.1942, the Regulatory Review Sunshine Act of 1991, by providing a compilation and review of major congressional enactments that have addressed the issue of constraining and regularizing the exercise of agency discretion. In response, we submit the following. INTRODUCTION Despite the recurrent criticism of the breadth of many Congressional delegations of power in agency organic statutes, and the apparent unavailability of the legislative veto as a mechanism for legislative control, it would surely be a mistake, and wholly inaccurate, to view federal agencies as essentially free from legislative direction. In reality, the substance, and especially the procedures of administrative decisions, are subject to multiple sets of Congressionally specified instructions. An agency's organic act is only the starting point for determining the nature and extent of legislative control of administrative actions. Moreover, the numerous general laws that establish the current framework for federal administration illustrate many of the dominant themes of modern American administrative law, most prominently those of procedural regularity, accountability of agency officers, and administrative openness. At the beginning of this century, there was no extensive body of federal administrative law, either judicial or statutory, apart from a few court decisions enunciating and enforcing principles establishing legal accountability of federal officers and a small number of statutes establishing genuine regulatory programs such as the Interstate Commerce Act of 1887, the 1906 Pure Food and Drugs Act, and the Meat Inspection Act. See, e.g., Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1 (1983); Rabin, Federal Regulation in CRS-2 Historical Perspective, 38 Stan. L.Rev. 1189 (1986). However, the legal landscape was barren of general legislation limiting the powers or defining the procedures guiding federal administrators and, with one exception, continued to be so even in the face of the Congressional creation of an increasing number of new federal programs to cope with the economic dislocations of the 1930's. By the time World War II broke out, the U.S. Code was replete with authorizing legislation but sparse in the number of laws addressed to administrators generally. By the 1980's the shape of this legal terrain had changed dramatically. The proliferation of new government programs had not abated. Indeed, the 1970's produced a substantial number of new statutes addressed to health, environmental, and public welfare concerns, which substantially reoriented the federal approach to social regulation. See Rabin, supra. Aware of the increasingly pervasive and intrusive nature of federal regulations, Congress during this period of governmental expansion enacted a series of general statutes that speak to, and attempt to limit and control, the discretionary power of most federal agencies. Commencing with the Federal Register Act in 1935, Congress sought to make the operations of federal agencies more visible, their decisionmaking procedures more uniform, and their officials more accountable. Accordingly, if one attempts to describe the legal context in which any federal agency operates, one must take into account a lengthy list of statutes that make no reference to a particular agency or program, but by their terms embrace and limit it. As will be seen, the procedural safeguards sought to be imposed by S.1942 appear to be consistent with, and a concomitant addition to, this trend of Congressional legislation. FEDERAL REGISTER ACT Until 1935 there was no uniform requirement for publication of agency administrative rules or decisions. Presidential executive orders were required to be filed with the Secretary of State and published each year with the statutesat-large, but it was apparently not uncommon for the White House to retain orders which it preferred to keep from public view. In some instances copies of such orders were not even at the White House. Such was the case of many presidential orders establishing industry codes under the National Industrial Recovery Act (NIRA) of 1933, the centerpiece of early New Deal recovery strategy. The first cases challenging the constitutionality of the NIRA involved the code governing the petroleum industry which included criminal penalties for producers violating state production limitations. The industry used an unofficial copy of the code published by the so-called Code Authority, a body set up under each code to assist the National Recovery Administration (NRA) in its administration of the Act. But the Petroleum Code had been amended in late 1933, and when the time came for writing the brief in the Supreme Court in 1934 an attorney for the Solicitor General sought out the original documents, which were found after some difficulty in the offices of the NRA. To his horror, the attorney discovered that when the Code was amended, the provision that |