21

legislative veto intensified and, finally, reached the United States Supreme Court. In 1983, the Court decided Immigration and Naturalization Service v. Chadha' on grounds that appear to nullify, as unconstitutional, virtually all forms of the legislative veto. Of course, there may be other forms of legislative review that will not offend the Constitution's system of checks and balances.

Other types of Congressional action that have been used to influence agency rulemaking include placing time limits on agency completion of rulemaking proceedings; including in enabling legislation factual findings the agency must make before starting rulemaking or before adopting final rules; conducting oversight hearings, and attaching riders to agency appropriations bills that bar or limit rulemaking in certain areas.

D. The President and Rulemaking Procedure.

The creation of new federal agencies with broad authority to protect public health and safety, and the environment, has led to increased concern about the need for Presidential coordination of agency action. The last four Presidents have instituted interagency review procedures designed to reconcile health, safety, and environmental regulations with their broader economic goals for the nation.

President Nixon instituted a "quality of life" review of environmental, consumer protection, and other health and safety

tive Regulations, 1 C.F.R. S 305.77-1 (1983); the recommendation is based on Bruff and Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 Harv. L. Rev. 1369 (1977).

21/ 51 U.S.L.W. 4907 (U.S. June 23, 1983), aff'g 634 F.2d 408 (9th Cir. 1980). Chadha was followed by Supreme Court decisions, without opinion, affirming lower court rulings striking down the one-house legislative veto in the Natural Gas Policy Act of 1978 and a two-house legislative veto in the Federal Trade Commission Improvements Act of 1980. See, respectively, Process Gas Consumers Group v. Consumer Energy Council of America, 51 U.S.L.W. 3935 (U.S. July 6, 1983), aff'g 673 F.2d 425 (D.C. Cir. 1982), and United States Senate v. Federal Trade Commission, 51 U.S.L.W. 3935 (U.S. July 6, 1983), aff'g 691 F.2d 575 (D.C. Cir. 1982).

regulations. 22 This review required submission of proposed rules to

the Office of Management and Budget (OMB) and other interested agencies for analysis and comment, as well as OMB review before a final rule could be published. 23 OMB's review of the Environmental Protection Agency's final rules, following the public comment period, consumed an average of 104 days."

24

On November 27, 1974, President Ford issued an executive order requiring executive branch agencies to prepare an "inflation impact statement" for each "major" federal action. The order empowered the Director of OMB to administer the program, with authority to delegate functions to other agencies, including the Council on Wage and Price Stability. When the executive order was extended, the name "inflation impact statement" was replaced by "economic impact statement" to better reflect the required analysis, which could be characterized as a loose cost-benefit analysis. 27

26

Under the Inflation Impact Statement program, agencies were required to prepare an IIS for "major" rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to the Council on Wage and Price

22/ Agency Regulations, Standards and Guidelines Pertaining to Environmental Quality, Consumer Protection, Occupational and Public Health and Safety, Memorandum to Heads of Department and Agencies from George P. Schultz, Director, OMB (Oct. 5, 1971) (cited in Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 52 n. 61 (1975).

23/ See Pedersen, Formal Records and Informal Rulemaking, id., at 55 (and authority cited at n. 73).

24/7 Env't Rep. (BNA) 693 (cited in Tomlinson, Report on the Experience of Various Agencies with Statutory Time Limits Applicable to Licensing or Clearance Functions and to Rulemaking, 1978 ACUS Reports and Recommendations 119, 229.

25/ Exec. Order No. 11,821, 3 C.F.R. 203 (1975), reprinted in 12 U.S.C. S 1904 (1976) (extended by Exec. Order No. 11,949, 3 C.F.R. 161 (1977)).

26/ See Note, The Inflation Impact Statement Program: An Assessment of the First Two Years, 26 Am. U. L. Rev. 1138, 1140 (1977).

27/ See OMB Circular No. A-107, § 4(d) (Jan. 28, 1975) (cited in Note, The Inflation Impact Statement Program, id. at 1141, n. 28).

6.

"regulatory analysis" that examined th effectiveness of

approaches.

alternative regu

Agencies were directed to review e: regulations, though no time limit was pla completion of the review process.

Agencies were directed to prepare pla implementing E.O. 12044, and the plans subject to OMB review and approval.

n August 16, 1978, President Carter issued anoth rder, this time requiring executive agencies to prepa ommunity impact analyses for "major policy initiativ ase of regulations, OMB instructed agencies to inc rban impact analysis in the analysis required by Exe 2044.35

President Carter also established a Regulat eview Group (RARG) to review the regulatory analy or a limited number of proposed "major" rules ar omments on the proposed rules during the public com

4/ Exec. Order No. 12, 074, 3 C.F.R. 217 (1978). 5/ OMB Circular No. A-116, § 6 (Aug. 16, 1978) (pu 'ed. Reg. 37,779 (1978)).

11

period.

36

RARG's activities were similar to those of the Council on Wage and Price Stablity under the Inflation Impact Statement program, but it had more influence since its reports came directly 37 from the Office of the President.

38

President Carter created another rulemaking review body, named the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. The Regulatory Council included the heads of all executive branch agencies and the heads of any independent agencies who chose to participate on a voluntary basis.

rulemaking lawsuits. 39

we re

The Carter Administration's efforts to coordinate agency controversial and challenged in several The controversy prompted both the Administrative Conference and the American Bar Association to study the problem. Both bodies produced recommendations generally sympathetic to the need for Presidential coordination of agency rulemaking. 40

36/ 43 Fed. Reg. 12,668 (1978).

37/ See Baram, Cost-Benefit Analysis: An Inadequate Basis for Health, Safety, and Environmental Regulatory Decisionmaking, supra note 31 at 509-513 (for discussion of RARG's activities). 387 Memorandum from President Carter to Executive Departments and Agencies, entitled "Strengthening Regulatory Management" (Oct. 13, 1978).

39/ See Baram, supra note 31 at 512-514 and Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943, 944-947 (1980) for accounts of the controversy.

40/ The ABA's House of Delegates, at its meeting in August 1979, approved two recommendations on this subject that were developed by a special ABA Commission on Law and the Economy. One recommendation urged enactment of a statute specifically authorizing the President to direct certain agencies to consider or reconsider the issuance of critical regulations and, thereafter, to modify or reverse their rulemaking decisions. The recommendation contained numerous limitations and safeguards, including a recommended "sunset" provision for the statute. A separate recommendation called for issuance of a Presidential executive order directing agencies to prepare and make public regulatory analyses of proposed major regulations, and providing for inter-agency review of (Continued)