Bush Directive on Regulatory Authority in a Broader Context

I was reading the article that is currently was on the Buzz in Scienceblogs. It is about President Bush issuing an executive order to the bureaucracy curtailing the use of guidance statements and insisting that political appointees evaluate the costs and benefits of these statements. The story was in 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.

The White House said the executive order was not meant to rein in any one agency. But business executives and consumer advocates said the administration was particularly concerned about rules and guidance issued by the Environmental Protection Agency and the Occupational Safety and Health Administration.

In an interview on Monday, Jeffrey A. Rosen, general counsel at the White House Office of Management and Budget, said, "This is a classic good-government measure that will make federal agencies more open and accountable."

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.

The Office of Management and Budget already has an elaborate process for the review of proposed rules. But in recent years, many agencies have circumvented this process by issuing guidance documents, which explain how they will enforce federal laws and contractual requirements.

Peter L. Strauss, a professor at Columbia Law School, said the executive order "achieves a major increase in White House control over domestic government."

"Having lost control of Congress," Mr. Strauss said, "the president is doing what he can to increase his control of the executive branch."

At first glance this is a bald-faced power grab, but something about this story makes me think there is more to it. So I looked to see if other people were talking about it, and Jack Balkin at the Balkinization blog has an excellent post on the legal background to this executive order:

The New York Times features a story about the President's January 18th, 2007 Executive Order, which gives the White House greater control over the guidance documents that agencies produce. These guidance documents, while not themselves binding law, nevertheless strongly influence the way businesses comply with federal regulations. The new executive order imposes greater restrictions on when and for what purposes the agencies can write these documents; and it requires that they clear these advisory documents with regulatory policy offices staffed by political appointees of the Administration. The purpose is to ensure that the guidance documents are consistent with the Administration's policy views.

The new Executive Order amends a previous order promulgated in 1993 by the Clinton Administration, which also sought to bring the bureaucracy more under the control of the White House. In fact, the Clinton Adminstration introduced a number of changes designed to ensure that federal agencies better reflected the President's policy (and political) agenda. And Clinton's innovations, in turn, built on decisions made in the Reagan Administration.

It is true that the Bush Administration's new rule will give political appointees more say over the guidance documents that are produced by scientists and other experts in the civil service. It will increase the control that the White House and its political concerns have over the bureaucracy. But this development is best understood as the continuation of a trend that goes back through several administrations, both Republican and Democratic.

...

Critics may assume that the use of political appointees as gatekeepers is consistent with the Administration's "war on science." There may be something to that, but here is a better way to look at it. Scientific expertise is a source of authority for the bureaucracy; it justifies its independent judgment. Such independent judgment is precisely what Presidents seek to curb in asserting control over the bureaucracy.

Read the whole thing. He makes it sound as if this is part of a much larger trend towards executive power that exceeds the Bush administration.

Now my suspicion is that knowledge comforts very few of you because most people who read this blog do not trust the Bush administration as far as they can throw a reasonably sized sheep. (Frankly, neither do I.)

However, I would before you leap to conclusions about this issue consider the following:

  • 1) Someday Bush will no longer be President. My suspicion is that someone you like more will be. Do you want that person to have their policies confounded by a horde of bureaucrats?
  • 2) I am not comfortable with strong executives making law by fiat (read: Presidential signing statements) but I am even less comfortable with strong bureaucrats making law by fiat. Petty tyrants ruling their departments at their whim is not something I particularly like either. The benefit of consolidation of control over the bureaucracy by the President is that someone elected is in charge. Congress can always de-fund whatever he is doing that they don't like.
  • 3) I think the comparison between President signing statements and guidance documents is a good one. Someone who knows more about the law should correct me if I am wrong, but both seem to involve the executive explaining how they intend to enforce a vaguely worded law.

    The Bush administration has abused Presidential signing statements to ignore parts of bills they don't like (they also think they are unconstitutional but I don't want to get into that argument). Guidance documents seem to be doing something similar, and they could be abused just as much. Both involve taking legislative power away from Congress. The difference is only where you address the nasty note.

  • 4) I am happy to hear people beatifying civil servants and scientists, but lets be realistic. Many experts understand their field well, but in my experience they do not understand what is politically possible -- important if you want to actually get something done -- and they rarely think in terms of cost and benefit. Being a scientist and administrator is a great way to have tunnel vision. Outside points of view, even if they are ones that I disagree with will probably improve this process.

    Again, if you reject that statement, think about what will happen when Bush is gone. How would you run an abstract bureaucracy -- not this one? What I am saying is let's not throw the baby out with the bath water.

Given the choice I would like a limited government, but I would also like a coherent government. The idea of everyone doing their own thing is just not a serviceable way to run a bureaucracy.

I am not so much defending this decision as trying to think of it in terms of a longer context. There may be a bright side to this that isn't obvious on the surface.

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The "regulatory policy office run by a political appointee" reminds me of the old Russian zampolit.

By MiddleO'Nowhere (not verified) on 02 Feb 2007 #permalink

As much as I hate to defend the USSR, the usage of the zampolit appointments actually made sense in context - they were there to assure civilian control over a military where a coup d'etat or defections to rival powers were serious concerns. While the whole totalitarian communism thing meant that civilian control resulted in unelected authoritarians making the government agencies operate as instruments of oppression, the core principle of having government agencies be accountable to political officials is a sound one.

This goes beyond who is president.

Administrative oversight is all well and good, but this amendment clearly makes academic Economics ("market failure," cost-benefit analysis) a guiding principle in what the government should and should not be regulating.

Did you ever see "Fight Club," when Edward Norton is explaining how his automobile manufacturer compares the cost of a recall versus the cost of out-of-court settlements to the relatives of the deceased? If the cash payments are cheaper no recall. Straight up CBA. But is that how we want our government making regulatory decisions?

CBA can be a useful analysis tool, but it is inherently biased. It should not be a sole consideration for regulatory action.