PCAP - Presidential Climate Action Project

• The President shall not substitute his judgment for that of an agency regardingthe discharge of a duty assigned by statute directly to the agency. “Thecongressionally specified decision maker, where she is not the President,operates at the head of a professionally staffed agency, charged with decision(and explanation of decision) in accordance with stated and generallytransparent procedures and a particular statutory framework.” 28 Agencieshave technical expertise that should be applied to determinations or findingsand, to the extent possible, these determinations and findings should be basedon expertise rather than politics. 29 Agencies, however, do not operate in avacuum. They operate under the guidance and policy established by thePresident and Congress. Thus, under this approach the President cannotdictate regulatory outcomes; however, the President can recommend theconsideration of certain regulatory alternatives or place priority on certainprograms or regulations through authority he has in planning or establishingpolicy. Further, the President has the authority to demand that an agencyperform its congressionally delegated duties, that is, move forward on makinga determination or finding, but cannot dictate what the determination orfinding will be (see Proposal B-7 regarding regulation of pollutants under theClean Air Act).• The President’s supervisory and oversight authority is much more limited overindependent agencies.• The President’s supervisory and oversight authority is much broader overagencies placed directly under his control (e.g., established in the ExecutiveOffice of the President, or with the statutory duty to operate under thedirection or supervision of the President).The selection of the above-described approach is not a judgment as to the legality of the otherapproaches. As previously stated, there is no legal precedent mandating this position andpresidents have taken different approaches. The application of a different philosophy wouldaffect the conclusions in this report. For example, under the directive or unitary approach inmost cases the conclusion would come out stronger in favor of presidential authority. However,executive authority is more firmly established if it falls at the moderate end of the spectrum.of their replacement) when their performance of their duties persuades him that he must do so implicitly. . . .[T]he heads of departments the President appoints and the Senate confirms have the responsibility to decide theissues Congress has committed to their care—after appropriate consultation, to be sure—and not simply to obey.”).28 Id. at 713.29 Id. (The rationale of the administrative state is to obtain reasoned decision making and application of expertjudgment.)CEES 7 | P age