Lecture 15: Executive Control of Administrative Agencies
ADMINISTRATIVE LAW
• Like Congress, the President has a variety of
powers and techniques he can use to
oversee and influence the operations of
administrative agencies.
• No specific provision of the Constitution for
executive authority over administrative
agencies.
– Presidents have cited the following
provisions of Article II:
oSection 1 – invests the president with
executive power;
oSection 2 – provides that the president
is the commander-in-chief of the armed
forces;
oSection 2 – gives the president the
appointment power;
oSection 3 – obligates the president to
take care that laws be faithfully
executed; and
oSection 2 – authorizes the president to
require the opinions in writing of the
heads of the executive departments.
Appointment Power
• Article II, Section 2, Clause 2
– Vests power in the President to appoint
officials to the federal government. These
appointees normally share the President’s
policy preferences and feel some
commitment to advancing his policies.
• One of the most important instruments of
executive control.
Principal Officers:
• High-level officers of the government that
serve directly under the President (e.g.,
Secretary of State).
• Must be approved by the Senate.
Buckley v. Valeo
• Congress tested the limits of the
Appointments Clause in 1974 when it
passed a statute creating the Federal
Election Commission.
• The statute required that four of the FEC’s
six voting members would be appointed by
the Speaker of the House and the President
pro tempore of the Senate.
• The Supreme Court struck down the
legislation.
• The court explained that the constitutional
term “Officers of the United States,”
identifying those officeholders who must be
chosen pursuant to the Appointments
Clause, includes all appointees exercise
significant authority pursuant to the laws of
the United States, such as rulemaking,
adjudication, or enforcement functions.
Thus, the FEC, a typical agency wielding all
of those powers, was clearly covered by the
clause.
Executive Order
• An executive order is a directive issued by
the president or a governor that implements
a policy but need not be passed by a
legislature.
• Example: President George H.W. Bush and
Bill Clinton each issued orders instructing
agencies to minimize litigation by making
liberal use of settlement and alternative
dispute resolution.
Office of Management and
Budget(OMB)
• OMB has primary responsibility for
formulating the annual executive budget
which the President transmits to Congress.
In performing this task, the OMB receives
budget requests from the individual
agencies and modifies them in accordance
with the Administration’s policies.
• OMB also reviews agencies’ requests for
substantive legislation.
Paperwork Reduction Act
• Provides that OMB must approve any new
information demand that an agency wishes
to impose on the private sector.
Power Over Litigation
• Department of Justice (DOJ) is headed by the
U.S. Attorney General, who is appointed by the
President with Senate approval.
• Presidential administration can exert influence
over administrative agencies in the selection of
the regulation it chooses to defend and the
enthusiasm with which it defends them.
– If the President does not enforce a law, it
does not “exist.”