Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291

This Article addresses the substantial legal problems posed by Executive Order 12,291. Part I argues that the Order, taken as a whole or separated into its procedural and substantive components, violates the constitutional separation of powers. Drawing on the analytic framework outlined by Justice Jackson in the Steel Seizure case, Part I maintains that courts should demand clear congressional support for the Order’s requirements. The available evidence, however, conclusively demonstrates Congress’s intent to deny the President formalized, substantive control over administrative policymaking. As interpreted by the Supreme Court, moreover, the informal rulemaking provisions of the Administrative Procedure Act (AP A) repose authority to require additional procedures solely with the agency, not with the President or his advisers.

Part II addresses the legitimacy of ex parte communications between White House and agency officials, a problem that is exacerbated by the Order’s oversight provisions. Because agencies typically attribute great weight to the views of the President and his closest advisers, such unrecorded and unreviewable communications threaten to deprive individuals of due process and to distort the AP A’s provisions for judicial review and public participation. Accordingly, Part II argues that significant oral or written communications between the White House and an agency should be disclosed in the rulemaking docket and that courts should invalidate agency action where this disclosure requirement has not been fulfilled.