Walter Olson
Walter Olson
The February 18 executive order moving to assert White House supremacy over federal regulation is momentous, but not for the reason mistakenly surmised in some early reports. In declaring a general presidential authority to pronounce on legal interpretation, in particular, the order does not aim to aggress against the role of the courts in saying what the law is. Rather, the order seeks to conquer and subdue what separate interpretive authority has resided in independent agencies, such as the Securities and Exchange Commission (SEC) and National Labor Relations Board (NLRB).
The gist of the order, as regards legal interpretation, is thus that such agencies are no longer free to speak for the Executive Branch on what the law is in their area; only the White House or Department of Justice can henceforth do that in an authoritative way.
In addition—and probably bigger news for many constituencies—the order says the (formerly) independent agencies must run proposed regulations by the Office of Management and Budget’s (OMB’s) Office of Information and Regulatory Affairs (OIRA), as ordinary agencies do. Also, it orders them to submit many aspects of agency management, including policy and many spending decisions, to White House supervision.
If the Trump administration can make all this stick, it’s momentous. For example, the president could impose interpretations of broadcast law that Federal Communications Commission executives think are wrong but that serve his political objectives. While it’s presented as a fait accompli, the claim is going to be subject to judicial review.
As I read it, it will stick only if the court agrees to embrace a robust version of the so-called unitary executive theory (UET), holding in effect that the creation of the independent agencies was a constitutional mistake and that they should be folded into the Executive Branch. If they embrace such a theory, » Read More
https://www.cato.org/blog/white-house-independent-agencies-must-submit-regulations-legal-opinions-our-review