A recent Post editorial "The Lawyers and the Agencies" suggests that a proposal of the American Bar Association would have the twin benefits of reducing the role of lawyers in the administrative process and brining sense and coherence to regulatory decisions. Nothing could be farther from the truth.
That porposal, which was drafted by Washington lawyer and now White House counsel Lloyd Cutler, would permit the president to step in after regulatory decisions have been reached and to modify or reverse any major decision that he did not like. The lawyers would still do all of their work before all of the administrative agencies, except that if their clients didn't like the result, the lawyers would have a lucrative new business called "lobbying the White House," before they took the agency to courrt. Far from speeding up and simplifying the regulatory process, the ABA's proposal would add the very kind of "other layer of bureaucracy" that The Post and so many others have railed against.
One justification The Post offers in support of the proposal is that the president should have "the final say in such decisions." If the president himself were to spend the time necessary to study the relevant evidence and arguments and to reach his own conclusions, as administrative agency heads do, the ABA proposal might provoke less concern. In all probability, he will receive no more than a two-page memo, summarizing the summaries, and more likely he will delegate the decision to his staff since at least the current president believes he should be listening and speaking to the people, not managing the government. Thus, the question is, should Hamilton Jordan, a self-avowed non-policy person -- or, if you prefer, H. R. Haldeman -- be allowed to overrule Cabinet officers and regulatory commissioners who are chosen by the president and confirmed by the Senate because of their expertise? In short, should these decisions be based on the politics of reelection or on the merits?
One portion of The Post's editorial leaves the reader with the impression that the president could not interfere with "most of the noneconomic regulations issued by many other agencies." It is true, as the editorial notes, that the ABA recommends that "critical monetary matters handled by the Federal Reserve Board" be excluded, but the only other rules that would not be subject to a presidential veto are those of the Federal Election Commission and the FCC's equal-time regulations for candidates for public office, both of which were excluded because of their obvious political impact. With those exceptions, no other areas would be excluded, so the president could interfere in matters so diverse as food safety, equal employment, energy and unfair trade practices.
One advantage of the ABA's proposal that should have been noted is that, if enacted, it would become the exclusive means by which the president could intervene in regulatory matters. Under the current practice, the White House staff secretly, and after the record has been closed, has lobbied the agencies on issues of such importance as the protection of workers from deadly cotton dust and the rules designed to implement the 1977 strip-mining legislation.The ABA would require the president to go on the record and to publicly state his reasons rather than allow him to influence the agency's decision in a way that denies other interested parties the chance to reply. It remains to be seen whether White House counsel Cutler will be able to convince his future colleagues on the president's staff that all of their attempts to influence the outcome of rulemaking proceedings should be conducted in the open, instead of by the back door.
If, as the ABA suggests, the problem is that Congress has sometimes assigned the same job to more than one agency or has given mandates that can be reconciled only with great difficulty or that are too narrow in their approach, the president's intervention can do nothing to help, since the ABA's own proposal would give him no added authority to reconcile or overrule conflicting or unworkable statutes. Unless Congress begins enacting legislation that sorts out priorities and resolves inconsistencies, even the ABA acknowledges that the president will not be able to solve these difficulties.