Two thoughts regarding the post below and the insightful analysis by Mr. Sussman:
First, certain defenders of the President argue that the Clean Air Act is flawed insofar as it precludes cost considerations in the setting of ozone standards. Even the Washington Post, which seems to recognize that it was unlawful for the President (reportedly) to inject cost considerations into the decision-making process, praises the President in a recent editorial by saying: “Mr. Bush's intervention may touch off a useful debate.” This is rather like congratulating Baby Face Nelson for touching off a useful debate on federal monetary policy. In a unanimous opinion written by Justice Scalia in Whitman v. American Trucking Assns. (2001), the Supreme Court held that the Clean Air Act "unambiguously bars cost considerations" from the process of setting air-quality standards, and ruled that costs may be considered only in deciding how to achieve those standards. A President should initiate a debate on the wisdom existing statutory mandates by drafting appropriate amendments and sending them to the Hill for thoughtful consideration, not by flouting those mandates.
Second, certain criticisms of the President’s intervention have focused on the Act’s assignment of standard-setting authority to EPA (as opposed to the President), and have suggested that in these circumstances the President’s role should be, at most, merely advisory. This criticism seems wide of the mark. Where a statute affords an agency discretion, the President may order the agency to exercise that discretion in accordance with the President’s policies, and fire the agency head for refusing to do so, so long as those Administration policies do not conflict with the statute. As Mr. Sussman and the post below make clear, the fundamental flaw in the Administration’s actions is not that the President intervened, but rather that he ordered a particular outcome (reportedly) based on impermissible considerations of cost. Those who question whether the President should have played any role at all in the matter usually fail to note that it was President Carter who systematized White House (OMB) review of agency regulations.
The bottom line is that the President gets to run the Executive Branch, but he must do so within the bounds of the law.
Comments