One of the important legs of the unitary executive theory involves the president's influence over the regulatory process. Unitarians have long believed the president's role extends beyond simple oversight and is actually one where the president is involved in the decision making process (the promulgation of rules).
Since Reagan, each president has implicated itself into more areas of the bureaucracy than the preceding president. Reagan issued two key executive orders that made the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) the "big kid on the block" when it comes to influence. OIRA became the eyes and ears of the White House, and no executive branch administrator issued rules without first consulting with it--even at times rejecting the influence of Congress, which is supposed to have shared responsibilities over the bureaucracy.
Clinton built upon the Reagan orders with an order of his own--Executive Order 12,866 continued to allow OIRA to influence the regulatory process and it extended the president's influence into the independent regulatory agencies--something Reagan and Bush had been rejected from doing. Clinton's order was issued in 1993, months after his inauguration, and with a Congress controlled by Democrats. Clinton was able to fall back on his order when the Republicans seized control of the Congress in 1995, using it as a fall back when his policies were rebuffed in the Congress (and to the chagrin of the Republicans). The Republicans attempted to blunt the influence of the president's order by adding the "Congressional Review Act of 1996" to a small business regulatory relief bill. The CRA is designed to allow the Congress to override a final regulation issued by an executive branch agency, but in reality is ineffective because it must be signed off by the president himself. In fact, the only override of a Clinton order that the Republicans pulled off happened with a midnight regulation issued when Clinton was leaving office, and was signed, enthusiastically, by President Bush.
As a demonstration of just how effective the Clinton order was, President Bush did not change it until 2007, when the Democrats regained control of the Congress following the 2006 midterms. On January 18, 2007, Bush signed Executive Order 13,422, titled "Further Amendment to Executive Order 12,866 on Regulatory Planning and Review." Technically this was an amendment to 12,866 and not a revocation. Most importantly, Bush's new order allowed the White House to place "minders" in the offices of the regulators themselves. These minders, called "Regulatory Policy Officers," have been in place since the Reagan orders, but outside of the agencies themselves. These individuals, called RPOs, were used as a go between the White House and the agencies, sending communication back and forth between the two. Now the RPOs would stand over the shoulders of the regulators, making what was abstract influence real influence.
Ten days after taking office, Obama revoked Bush's order with Executive Order 13,497, which restored the Clinton order as the guiding relationship between the White House and the executive branch. It also revoked Executive Order 13,258 (.pdf) which gave the vice president individual influence in the regulatory process, which was a sore point with open government groups who felt that the vice president--and in particular his chief of staff David Addington--were using the regulatory process as a fiefdom by which to make their own law (see this fine series of reporting by the "Washington Post").
Now here is where the unitary executive's future--at least this leg of it (since we know that the constitutional signing statement isn't going anywhere)--is in question. Obama's new order didn't just return the Clinton order and that was it--it temporarily puts the Clinton order into effect until a new regulatory order can be hammered out. And unlike the previous orders, Obama has asked for public comment on what this new order should look like.
The comments come from a variety of sources, although it appears that the deck is stacked in favor of those pushing for more transparency and for an end to the cost-benefit rationale built into the previous orders. There are a number of interesting comments and a few that are not worth a damn. If you are interested in this subject, I would encourage you to browse through the comments.
The question that remains centers on what role these comments will have in the final regulation. It could be that Obama invited public comments but will issue an order that does what he wants it to do anyway. Thus the public comments are a way to demonstrate his faithfulness to transparency without giving up the significant power the president has over the regulatory process. Or it could be a new era of transparency, where Obama synthesizes the best of the comments and builds them into an order that allows the public to monitor any influence over the development of final regulations--something that to date has remained in the shadows.
We sit and wait and wonder what future does the unitary executive have?
