Presidential Rulemaking

Peter L. Strauss, Columbia Law School


Taking as its starting point President Clinton's open professions of responsibility for a number of recent, prominent rulemakings, this essay examines the tension among the conventional separation of powers observation that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker," our increasingly political understandings of the rulemaking process, and current arguments respecting the unitary presidency. It concludes that the latter arguments insufficiently respect the Constitution's ambivalence between Congress's power to create the instruments of government and allocate authority among them, and the fact of a single chief executive at the head of the agencies thus created, with intended and inevitable political relationships with all. If we can no longer see administrative action as wholly the product of scientific expertise, we dare not view it as solely the product of politics - at the risk of losing entirely our culture of law. The importance, in this respect, that the heads of agencies regard themselves as having independent duties answerable to legal constraint makes the President's recent professions of direct responsibility for rulemaking outcomes inadvisable, however politically attractive. For the President to make the bureaucrats believe that they are his is precisely to tear down the structures of law and regularity Congress has built up in relation to the presidency.