On April 4, President George W. Bush used a recess appointment to make Susan Dudley the head of the White House's regulatory policy office. Dudley's new position will afford her great power over the federal regulatory process. The appointment comes despite strident opposition from public interest groups concerned about her views on regulation. The recess appointment of Dudley, along with that of other controversial officials, has also provoked anger in the Senate and raised questions about the constitutionality of the method.

Dudley is now the administrator of the Office of Information and Regulatory Affairs (OIRA), an office within the White House Office of Management and Budget (OMB). As head of OIRA, Dudley holds significant authority and responsibility. OIRA reviews the most significant regulatory or deregulatory actions the federal government proposes. The office has the power to alter or reject regulations as it sees fit. Dudley will also oversee the implementation of the Paperwork Reduction Act, which includes her approval of all information collected by the government from ten or more people, as well as establishing policy on agency information dissemination practices.

Dudley is the first OIRA administrator (other than acting administrators) not to be confirmed by the Senate. While recess appointments may occur in other parts of the government, it has never happened at OIRA. This may be because the position is so central to the operation of government that presidents have recognized the need for legitimacy through the Senate confirmation process.

Dudley will establish precedents as the first OIRA administrator to execute the White House's recent changes to the regulatory process. On Jan. 18, Bush amended Executive Order 12866 — Regulatory Planning and Review. The changes make agency guidance documents subject to OIRA review for the first time. Additionally, agencies will be required to provide to OIRA written identification of the market failure or other problem prompting regulation. OMB has not provided detailed instruction on either provision, thereby granting Dudley latitude in setting precedents.

Another of those amendments, the expanded role of agency regulatory policy officers (RPOs), raised concern over the status of Dudley's husband, Brian Mannix. The amendments to E.O. 12866 require that agency RPOs approve the commencement of all agency regulatory activity. Mannix had been serving as the RPO for the U.S. Environmental Protection Agency (EPA). The perception of a conflict of interest led Mannix to step down from his role as RPO and serve only as a senior EPA official, according to an agency memorandum obtained by the publication Inside EPA. The expanded role of the RPO would have deepened this perception of conflict with the OIRA administrator.

Notwithstanding the fact that Mannix will no longer have official capacity to communicate with OIRA on regulatory matters, EPA's memo on the matter leaves open the possibility that Mannix will be involved in internal agency decisions about regulations. EPA has not provided any public information on the role Mannix will play in this capacity. This seems like an area that Congress may want further oversight and clarification.

The primary point of contention over the Dudley appointment relates to her views on regulation. The public interest community, including OMB Watch, has scrutinized Dudley's past record and comments. A report by OMB Watch and Public Citizen finds Dudley to be ideologically opposed to government regulation. She overemphasizes the ability of the free market to self-correct. She also abuses the idea of monetizing the value of regulations, going so far as to support the senior death discount — a cost-benefit analysis calculation that devalues older individuals' lives compared to younger individuals.

Dudley's industry ties are also reason for concern. For three years, Dudley worked closely with industry executives at the Mercatus Center, an anti-regulatory think tank. According to the report, "Such ties to regulated industry suggest that Dudley…would use OIRA as corporate special interests' private backdoor for influencing policy."

OMB Director Rob Portman issued a statement defending Dudley. "She brings a balanced and comprehensive understanding of the regulatory process, and her principled approach emphasizes careful research and transparent analysis," Portman said. His statement did not address the decision to appoint Dudley during a Senate recess.

Bush's choice to use a recess appointment is controversial considering the Senate's intent to move forward on the nomination in the normal way. In December 2006, Dudley's nomination stalled in the Homeland Security and Governmental Affairs Committee as the 109th Congress came to an end. It was widely perceived that Dudley would not have been confirmed in the short lame duck session if the oversight committee had reported out the nomination. Nonetheless, Bush renominated Dudley in late January, and in late March, Sen. Joseph Lieberman (I-CT), the new oversight committee chairman, said he would begin moving forward with the nomination, indicating he had not yet taken a position on whether Dudley should be confirmed.

Preempting the Senate's constitutional role in confirming nominees prompted Lieberman to issue a statement through a spokeswoman. Lieberman aide Leslie Phillips said, "The Administration's decision to recess appoint Susan Dudley shows disrespect for the advise and consent responsibilities of the U.S. Senate and for the American people."

In addition to Dudley, Bush recess appointed three other officials, the most controversial of which was Sam Fox. Senate Democrats criticized Fox for funding attack ads aimed at Sen. John Kerry (D-MA) during the 2004 presidential campaign and appeared unlikely to confirm Fox. Bush withdrew the nomination hours before a scheduled vote, only to recess appoint him on April 4. Another appointee was Andrew Biggs, named as the new deputy commissioner of the Social Security Administration. Biggs, who has been a lower ranking official in the Social Security Administration, was at the center of Bush's past push for privatization. Sen. Max Baucus (D-MT), chair of the committee with Social Security oversight, objected to the Biggs nomination, but Bush went ahead anyway.

The batch of controversial recess appointments has raised concerns about the constitutionality of the method. Norm Ornstein, a scholar at the conservative American Enterprise Institute, questioned the legality of the Dudley appointment. In an essay in Roll Call, Ornstein argues the recess appointment provision was included in the Constitution because early Congresses met for only a few weeks a year. According to Ornstein, the explicit language of the Constitution allows the power to be used only when the vacancy occurs during the recess and necessity obliges the president fill the vacancy immediately.

Ornstein also points to the Federalist Papers in which Alexander Hamilton called for appointments to be a joint venture between the president and the Senate. He argued the recess appointment provision should be used sparingly for vacancies "which it might be necessary for the public service to fill without delay." Ornstein claims, "No one at the time — no one — argued that the recess appointment power was to be used for other, broader purposes, especially in cases where the president was simply trying to make an end run around the Senate."

Pundits now wonder whether the next congressional recess will bring similar controversy. On April 11, Bush withdrew the nominations of two controversial EPA officials, Alex A. Beehler and William Wehrum. Though environmentalists and Senate Democrats welcomed the withdrawals, concern remains as to whether Bush may be following the course of the Fox nomination — withdraw the nominee and appoint during a recess. The Los Angeles Times reports an unnamed lobbyist with ties to the Bush administration as saying "that was the plan all along" for Beehler and Wehrum. However, the article speculates the furor over the appointments of Dudley and others may stall the use of further recess appointments.