The Proposed Bulletin represents an unacceptable power grab by the White House. The principles and traditions of the American political order abhor the excessive centralization of authority that OMB would win with the Proposed Bulletin, which contravenes Congress’s role in delegating responsibility and discretion to the agencies and assumes the right to amend the Administrative Procedure Act by executive fiat:

• OMB’s Proposed Bulletin reverses important decisions about administrative law and government management that are now backed with 60 years of precedent.
• Congress has not empowered OMB to upset this delicate balance. Congress retains that power, and it has made targeted changes to this basic framework for specific cases over the years.
• OMB is writing itself a significant and unprecedented role in the rulemaking process.

Re-writing the Administrative Procedure Act

Congress already spoke to the balance of efficiency and process in the Administrative Procedure Act itself, which exempts “interpretative rules, general statements of policy, [and] rules of agency organization, procedure, or practice” from the notice and comment requirements applied to legislative rules.

Moreover, these guidance documents are not published in some completely lawless zone. Interpretive rules cannot be inconsistent with prior legislative rules, else they run the risk of not being applied. In fact, even the flexibility inherent in such documents may have its limits, as courts could reject interpretive rules that are abrupt departures from longstanding practice. The Freedom of Information Act already insists that the materials exempted from notice-and-comment rulemaking must be made public and limits their availability as precedent in enforcement actions.

Usurping Congressional Power

Congress has had 60 years to consider across-the-board, one-size-fits-all policies of the type OMB is proposing, and it has opted to leave in place the current general scheme.

It is deeply problematic for OMB to interfere with Congress’s decisions to delegate discretion to the agencies, particularly in the form of a proposal that seeks to advance good government. It is even more troubling that OMB is attempting to amend the APA by executive fiat.

OMB’s Power Play

Although OMB does not arrogate to itself the power to review agency guidance documents before they can be published, OMB is nonetheless writing itself a significant and inappropriate role in day-to-day agency functioning. The Proposed Bulletin purports to offer agencies some flexibility in implementing the rigid notice and comment requirement for “economically significant” guidance documents, but that flexibility comes with a price: agencies can only exempt specific documents or classes of documents “in consultation with” OMB.

The sixtieth anniversary of the APA may be an occasion to consider how the law is working and even how it can be improved, but it is not time to rewrite the law unconstitutionally by executive pronouncement.