May 2010 Vol. 108 No. 7 THE REVIEW

Disclosing "Political" Oversight of Agency Decision Making

Nina A. Mendelson

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action.

The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated with high levels of changes in agency rules. Further, this Article documents the comparative silence regarding the effect of that supervision. The Office of Management and Budget and the agencies generally do not report the content of supervision by presidential offices. They also do not report whether a particular agency decision is consistent with presidential preferences. Silence about content, this Article suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state.

This Article then argues for greater transparency. Agencies should be required to summarize executive influence on significant rulemaking decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to political reasons in reviewing a particular agency action. Finally, this Article suggests that while some, but not all, political reasons for agency action are legitimate, only a more transparent system-one that facilitates public dialogue and accountability to Congress-can fully resolve the question of which reasons are legitimate and which are not.

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