Editor’s Note: See also Proper and Desirable Intervention by the President in Agency Rulemaking.

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Jeffrey Lubbers


As to the ex parte communications, in a key passage, Judge Wald, after ruling that the EPA had met its obligations to defend its rule based on the public rulemaking record, defended presidential involvement in rulemaking as desirable. She wrote:

The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered.***

Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex regulatory problems. An overworked administrator exposed on a 24-hour basis to a dedicated but zealous staff needs to know the arguments and ideas of policymakers in other agencies as well as in the White House. 657 F.2d at 405,406.

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