Strauss Testifies on Presidential Overreach

Strauss Testifies on Presidential Overreach
Peter Strauss Spoke This Month Before House Subcommittee
May 14, 2008 (NEW YORK) – Columbia Law School Professor Peter L. Strauss, in testimony before Congress earlier this month, said the Constitution makes it clear that the Congress, rather than the President of the United States, has power to assign duties to administrative agencies within the federal government.
Strauss made his comments in light of the rulemaking process the Environmental Protection Agency followed as it set national standards for ozone in March, collaborating with the White House.
“Our Constitution is very clear, in my judgment, in making the President the overseer of all the varied duties the Congress creates for government agencies to perform, including rulemaking,” Strauss said in his testimony. “Yet our Constitution is equally clear in permitting Congress to assign duties to administrative agencies rather than the President. When it does, our President is not ‘the decider’ of these matters, but the overseer of their decisions.”
Strauss made his comments before the House Judiciary Committee’s Subcommittee on Commercial Administrative Law on May 6.
“When agency officials treat the President as the person entitled to decide matters Congress has committed uniquely to their judgment, they too fail in their obligations to the law,” Strauss said. “Consult with him they must; but at the end of the day, they are the ones responsible for deciding any matters placed uniquely in their charge.”
Strauss noted the subcommittee’s inquiry was prompted by the EPA’s relationship with the White House as it set primary and secondary national standards for ozone. “From a variety of elements that have come to light … one can conclude that both the White House and the leadership of EPA regard the White House as having the final voice of decision on rulemakings statutorily committed to EPA’s responsibility,” Strauss noted.
“What might Congress do about the simple affront President Bush’s strong ‘unitary executive’ theory appears… to be to Congress’s authority…?” Strauss said. “Politically, you hold the power of the purse,” he told the House subcommittee. “The President, like the King of England in his battles with Parliament, must rely on Congress for the funds he desires and if you find him abusing his authority you can withhold those funds.”
“Why should Congress tolerate the expenditure of government moneys to fund politicized White House operations by which the President or the Vice President purport to divert agencies from the tasks it has given them, to substitute power politics for law?” Strauss asked. ‘This too, of course, is a political control – and it is precisely the kind of political control the framers of our Constitution put in place as a safeguard … against monarchical pretension in presidential office.”
To read Strauss’ full testimony, click here.
Strauss, Columbia Law School’s Betts Professor of Law, teaches courses in Administrative Law, Legal Methods, and Legislation. He joined the faculty in 1971. In the 1970’s Strauss was the first General Counsel of the Nuclear Regulatory Commission.
Strauss writes on separation of powers and, in particular, the President’s constitutional relationship to the agencies on which Congress has conferred regulatory authority. His most recent writing on this subject was an essay that appeared in the George Washington Law Review entitled “Overseer or ‘The Decider’– The President in Administrative Law.”