Bush Admin increasing WH oversight over federal regulation-making process

[BrainGlutton]

Brought to my attention in this thread, thanx to Mapache.

From The New York Times:

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president’s priorities.

This strengthens the hand of the White House in shaping rules that have, in the past, often been generated by civil servants and scientific experts. It suggests that the administration still has ways to exert its power after the takeover of Congress by the Democrats.

<snip>

Business groups welcomed the executive order, saying it had the potential to reduce what they saw as the burden of federal regulations. This burden is of great concern to many groups, including small businesses, that have given strong political and financial backing to Mr. Bush.

Consumer, labor and environmental groups denounced the executive order, saying it gave too much control to the White House and would hinder agencies’ efforts to protect the public.

Typically, agencies issue regulations under authority granted to them in laws enacted by Congress. In many cases, the statute does not say precisely what agencies should do, giving them considerable latitude in interpreting the law and developing regulations.

The directive issued by Mr. Bush says that, in deciding whether to issue regulations, federal agencies must identify “the specific market failure” or problem that justifies government intervention.

Besides placing political appointees in charge of rule making, Mr. Bush said agencies must give the White House an opportunity to review “any significant guidance documents” before they are issued.

There’s nothing unconstitutional or illegal about any of this, AFAICT. It’s merely a degree of micromanagement no previous administration (AFAIK) has thought of, or, if it did think of it, thought desirable.

But it obviously opens a lot of issues for debate:

1. Why did no previous administration (AFAIK) do something like this?

2. Who should be making the regulations that implement Congress’ legislation – professional experts and career civil servants, or political apparatchiks? The federal bureaucracy is not supposed to be insulated from the politics of the day the way the judicial branch is – but it is supposed to have some independence – isn’t it? I mean, isn’t that one reason why we have a civil-service system instead of a patronage system? OTOH, as John Mace points out, it is arguably more “democratic” to have oversight of these “unaccountable” bureaucrats’ doings by one of the elected branches of government. (Or would be if Bush were elected . . . Sorry, couldn’t resist . . .)

3. Is it wise, just, or good policy to put the burden on the agencies to identify some “specific market failure” to justify each and every regulation? Considering that they’re presumably just fine-tuning what Congress has already decided through the political process?

4. Cui bono?

5. In practical terms, how will this change affect the economy, the environment, etc.?

6. What implications will it have for future administrations?

[JohnT]

3. Is it wise, just, or good policy to put the burden on the agencies to identify some “specific market failure” to justify each and every regulation? Considering that they’re presumably just fine-tuning what Congress has already decided through the political process?

They’re already doing much of that already. What the BA wants is for them to put an aggregate total on a batch of regulations and then advertise it to the public:

Under the executive order, each federal agency must estimate “the combined aggregate costs and benefits of all its regulations” each year. Until now, agencies often tallied the costs and the benefits of major rules one by one, without measuring the cumulative effects.

…

Under the new White House policy, any guidance document expected to have an economic effect of $100 million a year or more must be posted on the Internet, and agencies must invite public comment, except in emergencies in which the White House grants an exemption.

There’s also the issue that regulatory agencies can no longer use guiding documents as de facto regulation/law:

The White House told agencies that in writing guidance documents, they could not impose new legal obligations on anyone and could not use “mandatory language such as ‘shall,’ ‘must,’ ‘required’ or ‘requirement.’”

Like I mentioned in the other thread, this is one of the things that 1994 was about - ending governance by regulatory fiat. I’m glad to see that Bush is finally getting on the wagon. :rolleyes:

6. What implications will it have for future administrations?

Well, they can issue another executive order overriding this one if they don’t like it, right?

[mlees]

It seems t me to be (among the other concerns you have listed) a new way to appoint buddies and cronies to a cushy taxpayer funded job.

“I’m the new Secretary of Domestic Milk and Cheese. You folks here in the Wisconsin office are doing great! Keep at it. See ya next fall.”

Sigh.

[Oakminster]

I think there are some grounds for legal concern on a separation of powers theory. Administrative agencies get their authority from Congress, generally through something called an enabling statute that creates the agenciy and defines its purpose. In a sense, it’s a delegation of legislative power. I’m not aware of any independent legal authority to support executive branch “oversight” of the rulemaking process…not saying it doesn’t exist, just that if it does, I’m not familiar with it.

[Dinsdale]

It is a frequently recurring debate within the federal gov’t as to whether or not more or fewer political appointees would be a “good thing.”
But independent of this issue are questions of the adequacy of the appointment process itself. Each admin must presently fill about 1000 positions requiring Senate confirmation, and 2000 that do not. Presidential appointments have been getting progressively slower in every admin over the past 40 years. Currently average appointment takes 8 months, and the average tenure of presidential appointees is 24 months. Many people question the costs and benefits of the current appointment process.
So there are two issues: is there a problem in how federal bureaucracies are run, and if so, is the presidential appointment process the way to correct it.

[Bricker]

@Oakminster

I think there are some grounds for legal concern on a separation of powers theory. Administrative agencies get their authority from Congress, generally through something called an enabling statute that creates the agenciy and defines its purpose. In a sense, it’s a delegation of legislative power. I’m not aware of any independent legal authority to support executive branch “oversight” of the rulemaking process…not saying it doesn’t exist, just that if it does, I’m not familiar with it.

Pardon my blunt analysis of that argument, but it’s bullshit.

Administrative agencies are part of the Executive Branch. When the legislature creates an agency or function, it delegates its power to the Executive Branch, in the form of that specific agency. The agencies heads are appointed by the President and report to him. He is absolutely free to intervene in greater or lesser measure with their operation, as he sees fit.

[Dinsdale]

@Bricker

When the legislature creates an agency or function, it delegates its power to the Executive Branch, in the form of that specific agency.

Does not the Congress retain an oversight function, at the very least to ensure that the agency is acting consistent with the delegation? And, there’s the matter of the budget.

While I certainly agree that administrative agencies exist within the executive branch and that the President enjoys tremendous authority to influence/direct their actions, I am not entirely certain that the distinction is quite as absolute as your brief post suggests.

[Captain_Amazing]

@Bricker

Administrative agencies are part of the Executive Branch. When the legislature creates an agency or function, it delegates its power to the Executive Branch, in the form of that specific agency. The agencies heads are appointed by the President and report to him. He is absolutely free to intervene in greater or lesser measure with their operation, as he sees fit.

Only to the extent that the law does, though. So, in some agencies, the governing body sits for a fixed term, for instance. The President can’t request the resignation of the Chairman of the FCC the way he can the Secretary of Defense, for example. And while I’m not an attorney, it seems to be an open question as to what power the President has to compel the independent agencies through executive order.

For instance, if you look at the wording of Executive Order 13175 (65 Fed. Reg. 67249-67252), you see:

“Sec. 8. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.”

and you see the same in Executive Order 13132

“Sec. 9. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.”

While those were both Clinton era executive orders, if you look at a Bush executive order (I don’t have a number on this one, but it was issued on July 31, 2001), you see similar language:

“Sec. 2. Independent Agencies. Independent agencies are encouraged to comply with the provisions of this order”

So this seems to suggest that the President can’t compel the independent agencies, just encourage them.

[Oakminster]

@Bricker

Pardon my blunt analysis of that argument, but it’s bullshit.

Administrative agencies are part of the Executive Branch. When the legislature creates an agency or function, it delegates its power to the Executive Branch, in the form of that specific agency. The agencies heads are appointed by the President and report to him. He is absolutely free to intervene in greater or lesser measure with their operation, as he sees fit.

What are you saying is bullshit in my post? You agree that that an agency is delegated power by the legislature. The authority to appoint a department head is not the same as the authority to review proposed regulations outside of the normal rulemaking process…which, among other things, is what this executive order purports to do.

[Voyager]

This is nothing new. In the Soviet Union, these guys were called Commissars. They helped the efficiency of the system a lot. I’m sure Comrade Bush has the best interests of the [del]Party[/del] country.