Constitutionality of Regulatory Reform Legislation for Independent Agencies

Although there is no constitutional impediment to the bill’s requirement that independent regulatory agencies communicate their legislative and budgetary messages directly to the Congress without first clearing them with OMB, a uniform rule in the opposite extreme—i.e., that no communication from an independent agency may be sent to OMB unless it is simultaneously sent to the Congress—would not adequately protect important interests of the Executive Branch. The congressional access provisions of the bill would not affect the power of the President, or the agency acting on the President’s behalf, to assert executive privilege, because in the absence of express language in the bill, it must be assumed that the bill does not constitute an attempted infringement of the constitutionally based privilege, which is available with respect to those functions of independent regulatory agencies that are of an executive or quasi-executive nature.