A Washington advocacy group has charged that an executive order empowering the Office of Management and Budget to review proposed agency rules is "constitutionally flawed," politically motivated, and denies Congress oversight of regulatory agencies.
OMB Watch, a private watchdog organization that monitors the OMB, said in a 25-page study released this week that the January order "is primarily a political tool for controlling agencies."
The executive order directs most government agencies to submit to the OMB an overview of their regulatory policies, goals and objectives for the following year. As in the federal budget process, the OMB director determines if the proposed rules are in line with administration policy. Disagreements between the OMB and an agency head over proposed regulations will be resolved by the president or his designate, according to the order. Following this process, the OMB compiles a final administration Regulatory Program for the year.
"Regardless of the content of the Regulatory Program, the concentration of so much power in the White House raises serious legal questions," the report by OMB Watch said. "At issue here is OMB's authority to veto virtually any agency activity, in essence to write federal policy."
"How are they Congress going to have oversight unless they know what the agency wants to do," said David Plocher, the author of the study, "OMB Control of Rulemaking: The End of Public Access."
"This is not a dictatorship where the president makes laws and enforces them too," Plocher said."
The "Regulatory Planning Process," as the executive order is titled, calls for the heads of most federal agencies -- except the departments of Defense and State and the independent agencies -- to submit to the OMB director any regulatory actions planned or under way, and "actions taken to consider whether to initiate rulemaking."
"Most shocking is that it takes place behind a veil of secrecy. OMB has been given the power to direct federal policy, without checks or balances. Accountability to the public or Congress is nonexistent," the report charged.
A staff member of a House Energy and Commerce subcommittee on oversight and investigations said that, to ensure that congressional oversight is maintained, the committee has sent letters to the Energy Department, the Environmental Protection Agency and the Transportation Department, directing them to provide a draft of proposed regulations sent to the OMB prior to the final package of proposed rules scheduled to be issued Thursday.
Also, those agencies were asked to maintain detailed records of all correspondence with the OMB regarding proposed rules. The three agencies account for a large portion of all federal regulations.
Robert P. Bedell, OMB's deputy administrator for information and regulatory affairs, said in an interview that the executive order was within the law. "We don't think there is anything unconstitutional about the process and neither does the attorney general," he said.
Responding to the criticisms about congressional oversight, Bedell said the president's regulatory program will enhance oversight. "This program is taking the most important regulatory actions of the 17 agencies . . . and is saying what they are working on" in one comprehensive package.