Disclosing the President's Role in Rulemaking: A Critique of the Reform Proposals

43 Pages Posted: 2 Feb 2011 Last revised: 26 Jun 2023

Date Written: February 2, 2011

Abstract

While the President often exerts significant influence over agencies as they make decisions that are delegated to them by law, that influence is rarely disclosed. Recently, several academics have proposed reforms that would encourage the President to play an active role in agency rulemaking, but would make that role more transparent. Some, including recently appointed Supreme Court Justice Elena Kagan and Professor Kathryn Watts, have suggested that courts should accord more deference to agency decisions that are based on Presidential influence, as long as the influence is disclosed by agencies. Others, including Professor Nina Mendelson, have proposed legislation or executive orders that would mandate disclosure of Presidential influence in agency decision-making.

Although the goal of increasing transparency in agency rulemaking is admirable, the proposals could have some unintended consequences, such as contributing to ossification of the rulemaking process and encouraging further partisan judicial decision-making. In addition, the reforms could encourage agencies to change their policies more frequently, in response to changing Presidential administrations, which could reduce consistency and certainty for regulated entities regarding their obligations under the law. Although those may be acceptable trade-offs for increased transparency and greater participation by the President, there are some obstacles to each of the reform proposals that may limit their effectiveness in achieving those goals.

Keywords: Presidential Influence, Rulemaking, Watts, Mendelson, Ossification, Transparency

JEL Classification: K23

Suggested Citation

Johnson, Stephen Martin, Disclosing the President's Role in Rulemaking: A Critique of the Reform Proposals (February 2, 2011). 60 CATH. U. L. REV. 1 (2011), Available at SSRN: https://ssrn.com/abstract=1753873

Stephen Martin Johnson (Contact Author)

Mercer University Law School ( email )

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