A Reality Check on an Empirical Study: Comments on “Inside the Administrative State”

Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to “render such decision- making accountable and effective.” Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control – those at the White House or the Office of Information and Regulatory Affairs (“OIRA”). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh (“the authors”) decided to study presidential control from the perspective of those who experience it-those inside the agencies. They undertook a significant empirical study, interviewing top political appointees who served at the Environmental Protection Agency (“EPA”) during the George H.W. Bush and William J. Clinton Administrations. The authors find, based on their data, that presidential control “is more complex and less positive than previous accounts acknowledge” and that presidential involvement in rule-making “may not sufficiently enhance political accountability” and “may not achieve regulatory efficacy.” Because they acknowledge that the president “has a role to play in controlling agency decision-making,” they conclude that the model “requires reworking” and identify “next steps in that direction.” I served as the Administrator of OIRA during the Clinton Administration, I am unabashedly a proponent of centralized review of rule-making, and I have a very different take on some of the data presented in Bressman & Vandenbergh’s article. Nonetheless, I value continued productive dialogue, rather than an adversarial contest, on the issues. My comments in this Article, therefore, are presented as just that-comments, as in the thoughts, observations, or reactions of someone who has been involved in the process-with the hope that they may be useful to those doing follow-on work in this field.