One kind of issue about presidential control over executive government with proven implications for “science-bending” concerns presidential control over executive branch communications with Congress. Transparency, and all the contributions to “honest brokering” and effective democracy through the “marketplace of ideas” that go with it, is impaired if the President takes the position that communications with Congress or the public must be pre-cleared politically. One notorious example during the Bush administration was the suppression of projections concerning the cost of certain health-care measures. Some such controls are of long-standing, however. Thirty-two years ago, when the author was General Counsel of the US Nuclear Regulatory Commission, the Office of Management and Budget was “coordinating” (i.e., pre-clearing) communications and testimony to Congress about legislative proposals and budgetary matters. The Commission’s nominal independence (it was of course an element of the executive branch, but its statutes provided explicitly for direct communication) softened these controls; but within the Commission itself, its Bureau “executives” sometimes exercised rather rigorous control over what they would permit their staff members to tell the Commission about perceived nuclear power risks – a rather unfortunate situation.
The legal basis for such discipline, if not its political reality, can be questioned. To the extent the American Constitution speaks to the matter at all, it merely permits the President to recommend to the Congress such legislation as he regards as expedient. Citizens of parliamentary democracies, inured to the powers of their prime minister over legislative business, will easily grasp the weakness of this provision, which addresses only presidential initiative and does not even suggest that a presidential suggestion must become legislative business. For that to happen, some member of Congress must introduce a bill, whose language the President cannot legally control. There is nothing here about keeping others from making any recommendations they might like. Nonetheless, as indicated, Presidents have long asserted the right to sit astride any such communications, at least outside the “independent regulatory commission” context.
The strong Bush (and Reagan) administration theories of the “unitary executive” can be found in a memorandum entitled “Authority of Agency Officials to Prohibit Employees from Providing Information to Congress,” explaining the withholding of projections of health program costs from Congress, following a discussion properly reciting the Clinton, etc., invocation of executive privilege in more conventional contexts:
The foregoing discussion does not mean that an agency’s right to supervise its employees’ disclosures to Congress is limited to privileged information. The discussion establishes only that the CRS interpretation that the “right of disclosure” statutes prohibit Executive Branch supervision of employee disclosures unconstitutionally limits the ability of the President and his appointees to supervise and control the dissemination of privileged government information. However, the CRS position also unconstitutionally limits the President’s ability to supervise and control the work of subordinate officers and employees of the Executive Branch more generally. See Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 633 (1982) (statutory “requirement that subordinate officials within the Executive Branch submit reports directly to Congress, without any prior review by their superiors, would greatly impair the right of the President to exercise his constitutionally based right to control the Executive Branch”; provision would be unconstitutional if so construed); Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984) (“Congress may not grant [Special Counsel] the authority to submit legislative proposals directly to Congress without prior review and clearance by the President, or other appropriate authority, without raising serious separation of powers concerns”).
This second, “unitary Executive” position is based on the following rationale:
The [judicial] decisions and the long practical history concerning the right of the President to protect his control over the Executive Branch are based on the fundamental principle that the President’s relationship with his subordinates must be free from certain types of interference from the coordinate branches of government in order to permit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President, and he is obligated to “take care that the laws are faithfully executed.” In order to fulfill those responsibilities, the President must be able to rely upon the faithful service of subordinate officials. To the extent that Congress or the courts interfere with the President’s right to control or receive effective service from his subordinates within the Executive Branch, those other branches limit the ability of the President to perform his constitutional function.
6 Op. O.L.C. at 638-39. Based on this rationale, we do not believe that the statutes relied upon by CRS could constitutionally be applied, as CRS would apply them, to the circumstance where a government official instructs a subordinate government employee not to provide an Administration’s cost estimates to Congress, whether or not the estimates are viewed as privileged.
On this issue, the Obama administration appears to be sending somewhat mixed signals. The recent memorandum on scientific integrity is explicit that
(3) … (b)Nothing in this memorandum shall be construed to impair or otherwise affect…:
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
This seems to keep existing controls over direct agency communications in place. On the other hand, in a recent statement accompanying his signing of a piece of complex legislation, explaining his reservations about limited elements of the bill he was permitting to become law,President Obama wrote:
Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.
Note that in this statement President Obama, unlike his predecessors, limits his reservation to “cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” This is a much more limited, and readily accepted, claim. Although this language leaves soom room to maneuver, it seems so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. (There is of course a larger discussion over signing statements, to which Ronald Cass and I have contributed, here. A fuller treatment of the issues can be found in Cass and Strauss, The Presidential Signing Statements Controversy, 16 Wm & Mary Bill of Rights J. 11 (2007))
