Congratulations! The president nominated you, the Senate gave you a hearing—not a foregone conclusion these days—and you’re now confirmed to your post in the Biden administration. Whether you are to serve in the president’s cabinet, head up an agency within a larger department, or lead a division within an agency, you do have a significant leadership role.
This is your four to eight—likely less—years at the helm. One thing is certain: you’re not content to passively execute your current programs. You’re disgusted with the prior administration’s policies. You have your own ideas. And you need more resources.
One way to make policy is to promulgate a regulation—an action you might be able to take unilaterally without the help of Congress. Or, you may draft a piece of legislation and lobby Congress to enact a new law. Finally, the easiest path may be to testify before Congress, express your needs, and hope that the national legislature will head your advice and craft policy.
Unfortunately for the entrepreneurial government official, policymaking within the federal government is not so straightforward. The Office of Management and Budget (OMB) stands between the new leaders of executive branch agencies and policy transformation.
Sometimes described as the most powerful office that nobody has ever heard of, the OMB is a White House office composed mostly of career civil servants who have deep policy expertise. The office is most well-known for formulating the president’s budget. Beyond its more visible role in proposing a federal budget, OMB ensures that the administration speaks with one voice before Congress. This mission, which helps the president oversee the sprawling bureaucracy, will almost certainly affect you as a new official.
In terms of unliteral action, you might consider issuing a regulation (also known as a rule) without the aid of Congress. Many agencies have so called “rulemaking authority,” which allows you to fill in the blanks of a legislative mandate. For example, the Clean Air Act authorizes you to regulate pollutants. But you, as EPA administrator, have a hand in determining what exactly qualifies as a pollutant. That is a lot of power, and your authority does come with constraints. Most notably, you are under a legal obligation to submit your proposed regulation for public comment—a process that can take many months.
But, additionally, under executive orders that every president since Reagan has implemented, your agency must submit major rules to OMB for review, accompanied by a detailed cost-benefit analysis weighing the pros and cons of your new policy. A new EPA administrator seeking to curb climate change must therefore draft the rule, perform this complex analysis, submit it for public comment, convince OMB of its utility, and make edits to the rule as commanded by OMB. With OMB review added to the mix, your draft proposal may take years until it’s ready for implementation and may look vastly different from how you originally conceived it.
OMB’s role in influencing regulatory drafting is taught in law schools across the country and is the subject of intense scholarship. While the American public may not be familiar with the White House’s role in executive branch rule drafting, most agency officials with a legal background will have at least heard of OMB’s regulatory review process.
Far less known is OMB’s control over your agency’s communication with Congress. Those beginning their political appointments may anticipate interacting with OMB to some extent in the context of proposed rulemaking, but they are likely ignorant about OMB’s “legislative clearance” process. In fact, it may come as a shock that the vast majority of your interactions with OMB will be through legislative clearance.
For instance, after working at your agency for some time—or perhaps from studying the agency prior to seeking an appointment—you may come to find that rulemaking just isn’t enough. You believe that you need additional legislative authorities to affect necessary change.
In order to transmit your draft legislation to Congress, you must first submit that proposal to OMB, which will conduct an interagency review.
During that process, every executive branch agency implicated by your proposal—as well as interested White House offices—will have a chance to comment and suggest changes. The Department of Justice (DOJ) will be looped in for every proposal, to offer OMB its advice about the constitutionality of the draft measure. A simple draft Coast Guard proposal related to personnel may receive input from DOJ, the Department of Defense, the Office of Personnel Management, various White House offices, and many others. Ultimately, OMB is the entity that adjudicates any differences of opinion and must sign off on the final draft.
Finally, even regular communications with Congress must be vetted through legislative clearance. When an agency official is invited to testify before Congress, the official must first produce a written copy of his or her remarks and submit them to OMB for review. This review is not limited to legislation-oriented testimony, but covers any and all statements that an executive branch official plans to make to Congress. Deviation from this process during testimony could be met with swift punishment from the White House, including losing your job. OMB expects that reports to Congress—often statutorily required to be issued by your agency—be submitted for legislative clearance as well.
The modern legislative clearance process traces its origin to Franklin Roosevelt, who was shocked to learn that agencies were requesting authorities from Congress without his knowledge. OMB helps coordinate executive branch action. As a new official with a mission to fulfill, you may find yourself frustrated with constraints imposed from above. Though the president is not directly involved, OMB—the arm of the White House charged with implementing his policy across the Executive Branch—will be your first hurdle before implementing your policy vision. Best of luck during your tenure!
Christian Bale is a former OMB career official who served in the Legislative Reference Division, the National Security Division, and Office of General Counsel. He is the current the Editor-in-Chief of the Duke Law Journal.