The American Bar Association overwhelmingly endorsed a proposal today to give the president the power to overturn the decisions of virtually all federal regulatory agencies.
The proposal, approved in a voice vote by the ABA's policymaking House of Delegates, was directed at "critical" regulations, described as "those the president finds of major significance" to the national interest and to the goals of the regulatory agencies.
Under the proposal, the president would have the power to order the agencies to "consider or reconsider" certain regulations and the authority to direct the agencies to "modify or reverse" their decisions.
The ABA's resolution specifically would exclude the "money market function of the Federal Reserve Board," as well as campaign financing regulations of the Federal Election Commission and other noneconomic regulatory issues, such as the Federal Communication Commission's fairness doctrine for broadcasters.
The resolution was drawn up by the ABA's Commission on Law and the Economy and was based on a proposal by Lloyd N. Cutler of the Washington law firm of Wilmer Cutler & Pickering and one of his law partners, David R. Johnson, in a law journal article published four years ago. Cutler is chairman of the commission's accountability committee.
In a report submitted in connection with the ABA's annual meeting here, the commission described its resolution as "a minimal and necessary start" to correcting what it described as the "inconsistency and indecisiveness that have characterized the regulatory process over the past decade . . ."
The proposed legislation, the commission said, would give the president the authority to oversee a "fair and open balancing process and holding him politically accountable for the result . . ."
Former secretary of transportation William T. Coleman Jr., now in private law practice in Washington, said in a statement opposing the resolution that it "further creates a frightening specter of presidential power."
Coleman protested that the White House staff may wind up making the decisions and that the president's role would become "ministerial, at best." There is a "substantial risk" that the president would be forced to make decisions based on "overgeneralizations" and put a "disproportionate emphasis on the political implications of a decision . . ."
Many of the regulatory agencies were set up because there was concern that certain "unorganized and less powerful" segments of society were not "getting a fair hearing" on issues involving the environment, safety and equal employment opportunities, Coleman said.
If the president were allowed to intervene in decisions of those agencies, Coleman said, "there would be a feeling that the powerful, the superlawyers and the major corporate interests have special access to the White House and its staff" and that such access leads to presidential action.
In a telephone interview, Cutler said the ABA's commission has had several discussions with the White House in connection with the proposed legislation, but he declined to speculate on White House support for the ABA resolution.
Similar legislation was introduced last month by Sen. William V. Roth (R-Del.), but that bill contains direct legislative veto power over such presidential orders.
Cutler explained that the proposed legislation would give the president the power to intervene in agency decisions for a set period of time, perhaps three years, and would then have to be renewed by Congress.
Once the president issued such a directive, it would remain in Congress for a specified period, during which time the president could modify his directive or withdraw it, Cutler said.
If the president did not respond to any action by Congress on such a directive, Congress could refuse to renew the president's authority once the term of the enabling legislation expired.
Cutler said, however, that he thought it would be most unlikely that a president would refuse to modify his order in such a case. It would be political suicide not to respond to congressional reaction, he said.