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Thursday, May 04, 2006

OIRA Meddling - Another Reason It's Legally Iffy

On the heels of the Heinzerling article making the case against OIRA meddling from an admin law perspective, an article by Cardozo law prof Kevin Stack tackles OIRA meddling from a different starting point: statutory interpretation.

Here's a look:

In our constitutional system, the significance of the President's assertions of statutory powers should come as no surprise. The Constitution grants the President relatively few independent powers, at least in comparison to Congress. Yet presidents are held politically accountable for how the federal government as a whole functions, and in particular for how administrative agencies exercise their vast delegated powers. That combination--a dearth of independent constitutional powers and political pressure to utilize the bureaucracy effectively--provides strong incentives for presidents to claim that already-existing statutes authorize them to implement policy. Moreover, locating an existing statutory power as a basis for action saves the President the potentially costly and slow process of assembling a majority in Congress to enact legislation. . . .

With any grant of statutory authority, two different questions arise: First, what powers are given, and second, to whom? On this second question, a persisting strain of thought endorses the view that statutes granting powers to executive officials should be read to include the President as an implied recipient of those powers. . . .

This Article challenges the recurring claim that statutes conferring power on executive officials should be read to include the President as an implied recipient of authority. The initial thrust of the argument is to show that as a matter of statutory construction the President has directive authority--that is, the power to act directly under the statute or to bind the discretion of lower level officials--only when the statute expressly grants power to the President in name. It then traces the implications of this emphasis on express delegation for the treatment of the President by the courts, executive branch officials, and Congress, and defends the following claims: First, the President's constructions of delegated authority should be eligible for Chevron deference, but only when they follow from statutes that expressly grant power to the President; second, absent an independent source of constitutional authority, executive orders and other presidential directives legally bind lower level officials only when they are based on express delegations to the President; third, in view of the structural advantages the President as a unilateral actor has over Congress, these narrow constructions of the President's statutory powers provide an important constraint, internal to the executive branch, on presidential authority.