Including ‘Political’ Reasons in Agency Decision Making

“Including ‘Political’ Reasons in Agency Decision Making”

Michigan State University Law Review, Forthcoming
U of Michigan Public Law Working Paper No. 145

NINA A. MENDELSON, University of Michigan Law School

Presidential supervision has been central to arguments for the legitimacy of executive branch agency action, including on difficult questions of value. Yet very little about that supervision is transparent. Meanwhile, some scholars have argued that political reasons may serve to taint, rather than to legitimize, an agency decision. Agencies generally report neither whether their significant decisions are consistent with presidential preferences nor the content of supervision by presidential offices such as the Office of Management and Budget’s Office of Information and Regulatory Affairs. This paper presents some current evidence on silence regarding White House influence on agency rulemaking. It then recommends greater transparency through requiring agencies to summarize presidential office influence on significant rulemaking decisions. Finally, it suggests that some, but not all, political reasons for agency action are legitimate, but that only a more transparent system can fully resolve the question of which reasons are legitimate and which are not.

Source: LSN: University of Michigan Law School, Public Law & Legal Theory
 Vol. 9 No. 2,  03/24/2009

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