The President's Constitutional Power to Order Cost-Benefit Analysis and Centralized Review of Independent Agency Rulemaking

Abstract

Since 1981, executive orders have required federal agencies to submit a cost-benefit analysis to the White House before promulgating any major rule. These orders have exempted independent agencies as a matter of political expediency, but the president possesses the constitutional power to require independent agency rules to undergo cost-benefit analysis and centralized review. As the sole head of the executive branch, vested with all of “[t]he executive Power,” the president rightly exercises supervisory control over independent agencies. And, as the Supreme Court recently explained, “[t]he President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them.” In addition, the Opinions Clause gives the president the specific power to demand a written analysis from federal agencies. Prohibiting presidential supervision of independent agencies would violate the Constitution’s tripartite structure. The President’s supervisory power over independent agencies is supported by a long line of opinions from the Department of Justice’s Office of Legal Counsel. Including independent agencies in the cost-benefit executive order would promote cost-effective rulemaking and better regulatory coordination within the executive branch.