Agencies possess enormous regulatory discretion. This discretion allows executive branch agencies in particular to insulate their decisions from presidential review by raising the costs of such review. They can do so, for example, through variations in policymaking form, cost-benefit analysis quality, timing strategies, and institutional coalition-building. This Article seeks to help shift the literature’s focus on court-centered agency behavior to consider instead the role of the President under current executive orders. Specifically, the Article marshals public-choice insights to offer an analytic framework for what it calls agency self-insulation under presidential review, illustrates the phenomenon, and assesses some normative implications. The framework generates several empirically testable hypotheses regarding how presidential transitions and policy shifts will influence agency behavior. It also challenges the doctrinal focus on removal restrictions and highlights instead a more functional understanding of agency independence. Finally, these dynamics suggest a role for courts to help enforce separation of powers principles within the executive branch and also, along with Congress, to facilitate political monitoring by encouraging information from sources external to the presidential review process.
Agency Self-Insulation Under Presidential Review
Many agencies face not only judicial review but also presidential review, and have self-insulated their decisions in unexplored ways.
- Volume 126
- Issue 7
- May 2013
Topic:
May 20, 2013
More from this Issue
-
The Office of Information and Regulatory Affairs: Myths and Realities
Vol. 126 No. 7 Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget, has become a well-established institution within the Executive Office of the President. This Commentary, based on public documents and the author’s experience as OIRA Administrator from 2009 to 2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role. -
Introduction: Privacy Self-Management and the Consent Dilemma
Vol. 126 No. 7 During the past decade, the problems involving information privacy – the ascendance of Big Data and fusion centers, the tsunami of data security breaches, the rise of Web 2.0, the growth of behavioral marketing, and the proliferation of tracking technologies – have become thornier. Policymakers have proposed and passed significant new regulation in the United States and abroad, yet the basic approach to protecting privacy has remained largely unchanged since the 1970s. Under the current approach, the law provides people with a set of rights to enable them to make decisions about how to manage their data. These rights consist primarily of rights to notice, access, and consent regarding the collection, use, and disclosure of personal data. The goal of this bundle of rights is to provide people with control over their personal data, and through this control people can decide for themselves how to weigh the costs and benefits of the collection, use, or disclosure of their information. I will refer to this approach to privacy regulation as “privacy self-management.” -
What Privacy is For
Vol. 126 No. 7 Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst – antiprogressive, overly costly, and inimical to the welfare of the body politic. Privacy advocates resist this framing but seem unable either to displace it or to articulate a comparably urgent description of privacy’s importance. No single meme or formulation of privacy’s purpose has emerged around which privacy advocacy might coalesce. Pleas to “balance” the harms of privacy invasion against the asserted gains lack visceral force.