CRS-14 President and his advisers in rulemaking proceedings, the requirement should ensure that no undue weight is given to the views of interested parties with allies in the White House. Although one may consider overly broad a general disclosure requirement applicable to White House policy communications, obvious problems would arise in applying a more limited conduit communication disclosure rule. The difficulty lies in distinguishing between policy positions of private parties and those of the White House: The President and his advisers might adopt as their own the views privately urged by interested parties. Despite this ostensible classificatory dilemma, it is arguably undesirable to limit a conduit contact disclosure rule to material factual information. First, the possibility that the White House will lend its credibility to a private position due to mere favoritism exists with regard to policy and legal arguments as well as to factual information. Second, interested parties must rebut and reviewing courts must scrutinize not only the factual data presented in rulemaking proceedings, but also the policy and legal arguments that an agency has considered. Finally, a rule requiring that White House comments on proposed rules be accompanied by disclosure of private communications received by the President and his advisers during the pendency of the rulemaking proceeding will not unduly constrain expressions of White House policy to agency decision-makers: Presidential aides remain free both to communicate their own views and to endorse the views of private parties. The Administrative Conference has unequivocably endorsed the public disclosure of conduit contacts, written or oral, by OIRA: "The officer responsible for presidential review of rulemaking should not allow the process of review to serve as a conduit to the rulemaking agency for unrecorded communications from persons outside the government." ACUS Recommendation No. 88-9, February 2, 1989, 1 CFR 305.88-9, sec. 6 (1989). Professor Harold Bruff, whose study underlies the ACUS recommendations, also supports the creation of a public file which includes all written communications between OIRA and the agencies. See Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 586-88(1989). - Viewing the regulatory review process as an integral, perhaps inextricable, part of the APA's informal rulemaking mechanism would appear far from anomalous. It is, arguably, inappropriate to analogize OMB's role in the pre-publication rule development stage to that of industry, labor or other private interests that an agency may -- legitimately meet with and exchange -- in private --ideas, information and views which need not be placed in the public record. The difference lies simply in the nature of OMB's interest and the significant influence it may exercise to ensure that its views are respected. In the one case Congress foresaw and encouraged private contacts. In the other it has, as yet, not. In either event, it is the agencies to whom Congress has vested the ultimate determination of how legislative policy shall be implemented. It is presumed that those agencies can withstand the importuning of private interests. It is not so clear that this is always possible CRS-15 of the public rulemaking process arguably is not likely to diminish presidential influence; but it could well restore the perceived values of integrity and fairness of the agency policymaking process. 5. OMB, the APA, and the Constitution It is well settled that Congress in legislating pursuant to the powers granted it under Article I, section 8 of the Constitution, as well as powers granted in other parts of the Constitution, has the authority, under the Necessary and Proper Clause, Art. I, § 8, cl. 18, to create the bureaucratic infrastructure of the Executive branch and to determine the nature, scope, power and duties of the offices so created. Buckley v. Valeo, 424 U.S. 1, 138 (1976). Moreover, as a general matter, the Supreme Court has spoken very broadly of the legislative power over offices. Where Congress deals with the structure of an office -- its creation, location, abolition, powers, duties, tenure, compensation and other such incidents its power is virtually plenary. See, e.g., Crenshaw v. United States, 134 U.S. 99, 105-6 (1890); Morrison v. Olson, 108 S.Ct. 2597 (1988); Mistretta v. United States, 109 S.Ct. 647. Only where the object of the exercise of the power is clearly seen in the particular situation as an attempt to effect an unconstitutional purpose, e.g., congressional appointment or removal of an officer, have the courts felt constrained to intervene. See, Buckley v. Valeo, supra; Bowsher v. Synar, 478 U.S. 714 (1986). The power to vest authority in agencies to engage in substantive rulemaking and to establish the procedures by which it will be carried out falls well within the congressional prerogative. In exercising this authority, Congress has established the basic procedure to be followed, 5 U.S.C. 553, but has directed in certain instances that special procedures, so-called "hybrid rulemaking," be followed by certain agencies. See, e.g., 15 U.S.C. 57a (1988) (Federal Trade Commission); 15 U.S.C. 2056, 2058-60 (1988) (Consumer Product Safety Commission); 15 U.S.C. 2605, 2618 (1988) (Environmental Protection Agency). Agencies have been required to place verbatim records or summaries of ex parte contacts in the rulemaking record, 15 U.S.C. 57a(c)(5)(1988) (Federal Trade Commission), as well as establishing public dockets that contain all documents "of central relevance". 7607(d)(4)(B)(i)(1982) (Environmental Protection Agency). Indeed, the latter statute prohibits the promulgation of any rule "based (in whole or in part) on any information or data which has not been placed in the docket as of the data of such promulgation. Id. at (d)(6)(C). Also, Congress often directs that rulemaking be accomplished by a specific deadline. See, e.g., 42 U.S.C. 6924(c)(2) (1982 & Suppl. V 1987) (EPA); 42 U.S.C. 9605(b)-(c) (1982 & Suppl. V 1987) (EPA); 29 U.S.C. 655(a) (1982 & Suppl. V 1987) (Department of Labor). OMB, itself a creature of the Congress, has never been deemed constitutionally immune from congressional adjustment and tailoring of its mission, powers, or the manner in which it operates. A brief resume of a CRS-16 is instructive. Some background on the agency is useful, however. Prior to the passage of the Budget and Accounting Act of 1921, 42 Stat. 20 (1921), which established the President's authority over the agency budget process, each agency had submitted its annual budget request directly to Congress. Finding this process inefficient and unwieldy, Congress created the Bureau of the Budget (now the Office of Management and Budget) to review the morass of agency budgetary information and to approve agency budget requests. See generally, L. Fisher, Presidential Spending Power, ch. 1 (1975). In addition to authority to review and approve agency budget requests, the Bureau was subsequently authorized to clear proposals for legislation or agency comments on proposed legislation. See Reorganization Act of 1939, ch. 36, tit. II, 53 Stat. 565 (codified at 31 U.S.C. 1108 (1982)). However, Congress' voluntary relinquishment of this authority has not been unequivocal. Either House may request an agency official to submit directly to it "an appropriation estimate or request, a request for an increase in that estimate or request, or a recommendation on meeting the financial needs of the Government." 31 U.S.C. 1108(e)(1982). Also, Congress has selectively required simultaneous or unaltered submission of budget requests and legislative proposals and comments that limit review by OMB of budget requests, legislative proposals, review of proposed agency rules, and other required reports and documents. Thus, since 1973, Congress has mandated that the budget requests of the U.S. Postal Service, see Act of June 30, 1974, Pub. L. No. 93-328, § 23, 88 Stat. 287 (codified at 39 U.S.C. §2009 (1982)), and the U.S. International Trade Commission, see Trade Act of 1974, Pub. L. No. 93-618, § 175(a)(1), 88 Stat. 1978 (1975) (codified at 19 U.S.C. § 2232 (1976)), be submitted to Congress without revision, and that the budget requests and legislative proposals of other agencies be submitted concurrently to OMB and the Congress. Also, Congress has exempted the Securities and 1 See, e.g., Privacy Act of 1974, Pub. L. No. 93-579, S 5(a)(5), 88 Stat. 1896 (reprinted in 5 U.S.C. § 552a App., at 318 (1976) (Privacy Protection Study Commission); Commodity Futures Trading Commission Act of 1974, Pub. L. No. 93-463, § 101(a)(3), 88 Stat. 1389 (1974) (codified at 7 U.S.C. § 4a(h)(1)-(2)(1982)) (Commodity Futures Trading Commission); Consumer Product Safety Act, Pub. L. No. 92-573, § 27(k), 86 Stat. 1207 (1972) (codified at 15 U.S.C. § 2076(k) (1982) (Consumer Product Safety Commission); Hazardous Materials Transportation Act, Pub. L. No. 93-633, § 304(b)(7), 88 Stat. 2156 (1975) (codified at 49 U.S.C. § 1903(b)(7)(1982)) (National Transportation Safety Board); Civil Service Reform Act of 1978, Pub. L. No. 95-454, 202(a), 92 Stat. 1122 (codified at 5 U.S.C. § 1205(j)(1982) (Merit Systems Protections Board); Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. No. 94-210, § 311, 90 Stat. 60 (codified at 31 U.S.C. § 1108(f)(1982)) (Interstate Commerce Commission); Department of Energy Act, Pub. L. No. 95-91, § 401, 91 Stat. 582 (codified at 42 U.S.C. § 717(j)(1982))(Federal Energy Regulatory Commission); AMTRAK Improvement Act of 1973, Pub. L. No. 93-146, § 12, 87 Stat 553 (codified at 45 U.S.C. § CRS-17 Exchange Commission, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Federal Home Loan Bank Board, and the National Credit Union Administration from OMB clearance of their legislative proposals and comments. Act of Oct. 28, 1974, Pub. L. No. 93-495, § 111, 88 Stat. 1500 (codified at 12 U.s.C. §250 (1982)). OMB also has been precluded from imposing E.O. 12,291 review on Agricultural Marketing orders of the Department of Agriculture or regulations of the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department. Executive Office Appropriations Act, 1987, as included in Public Laws 99-500 and 99-591, section 101(m). OMB may review reports to Congress required of the Secretary of Health and Human Services but it may not revise them or delay their timely submissions. 42 U.S.C. 242m(a)(3)(1982). Reports and documents required by Congress of the Inspector General of the Department of Energy need no clearance or approval beyond the Secretary of Energy or Federal Energy Regulatory Commission. 42 U.S.C. 7138(f)(1982). And no clearance is required for reports of the Chief Counsel of the Office of Advocacy of the Small Business Administration. 15 U.S.C.A. 634 (1989 Suppl.). Moreover, when Congress concluded in 1974 that OMB had become a political instrument of the President, replacing its historical image as a bipartisan, neutral personal technical adviser on fiscal and organizational matters, it acted to subject the Director and Deputy Director to Senate confirmation. Pub. L. No. 93-250 (codified at 31 U.S.C. 502(a)-(b)(1982)). Perceived overreaching also moved Congress in 1973 to deny OMB the authority it had under the Federal Reports Act (the predecessor to the Paperwork Act) to clear information gathering requests of independent regulatory agencies. Pub. L. No. 93-153, Title IV, sec. 409 (codified at 44 U.S.C. 3512(1976)). The veto 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 (1982) 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. 3507(h) (Suppl. V. 1987). 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.1742 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, Reorganization Act of 1973, Pub. L. No. 93-236, § 2021, 87 Stat. 990 (codified 108 S.Ct. 2597 (1988) and Mistretta v. United States, 109 S.Ct. 647 (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.1742 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 fairness and integrity of agency decisionmaking through the informal rulemaking process. Finally, any argument that the administrative burden of the new requirements would be constitutionally onerous has been severely undermined by an agreement reached on November 17, 1989 between the Chairman and Ranking Minority member of the House Government Operations Committee and the Director of OMB imposing substantially similar openness requirements on OIRA conduct of the regulatory review process. See 136 Cong. Rec. E3925 (daily ed., November 17, 1989). Under that agreement OIRA will establish dockets for all its review activities under E.O.'s 12291 and 12498 which will include all written materials between OMB and the agencies as well as lists of communications and meetings between OIRA personnel and persons outside the government, and detailed explanations of actions taken by OIRA. Each docket will be available for public inspection and copying at the time of the publication in the Federal Register by the subject agency of either an advanced notice of proposed rulemaking, a notice of proposed rulemaking, or of a notice of a final rule. The agreement also imposes specific time limits on OIRA review. The agreement can be viewed as evidence of the reasonableness of the requirements proposed by S.17420 Rosenberg |