Balkinization  

Tuesday, January 30, 2007

Tightening Control over the Federal Bureaucracy

JB

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.

As the federal bureaucracy has grown larger and its orders and advice more frequent and pervasive, the bureaucracy has also become increasingly independent of the political will of the White House. Presidents, realizing this, have sought to bring the bureaucracy under their control in various ways. The Reagan Administration tried to slow down bureaucratic initiatives it did not like. The Clinton Administration tried to harmonize regulations and require additional justifications. The difference in strategies makes some sense: The Reagan Administration ran against government regulation, and so tried to control it by impeding it. The Clinton Administration, by contrast, tried to impose various good government reforms on regulation, and, perhaps more important, tried to take credit for the work that the bureaucracy was doing, particularly after the Democrats lost Congress following the 1994 elections. Thus, the President would often make public statements and hold press conferences to announce decisions made in the bureaucracy, declaring them to be initiatives (and successes) of his Administration. Where Reagan sought to rain on regulation's parade and slow it down, Clinton sought to run ahead of the parade so that he could lead it. (For those who are interested, Dean Elena Kagan of the Harvard Law School wrote an important study in the Harvard Law Review in 2001 comparing the Reagan and Clinton Administrations' attempts to control the federal bureaucracy, and this post draws on her analysis.)

Interestingly, the Bush Administration has built on the Clinton model more than the Reagan model. Instead of trying to halt regulation, it has sought greater political control over advisory documents and required a greater showing that regulation addresses a genuine market failure. It seeks to use political appointees to act as gatekeepers for the content of advisory documents before they are published.

The reasons why Bush has followed Clinton more than Reagan flow from the rise of Bush's big government conservatism, a conservatism that happily uses all the levers of federal power to benefit his political allies, including most particularly business interests, who remain central to the Republican political coalition. The Bush Administration does not so much seek to stop regulation as to mold it in a decidedly business-friendly way.

It no accident that these revisions occur following the Republican loss of Congress in 2006; both Congress and the President have varying degrees of influence over the bureaucracy; the Administration, faced with a Congress of the opposite party, is trying to ensure that its influence remains stronger. But it is likely that these changes would have occurred even if the Republicans retained Congress, because these changes are part of a longer trend of Presidents finding ever new ways of asserting control over the federal bureaucracy, and, more to the point, they mesh well with Bush's big government conservatism.

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. There is no one way to do this, of course. The Clinton Administration sought to require greater justification for bureaucratic policy initiatives with the idea of ultimately taking credit for the bureaucracy's best ideas. The Bush Administration has built on the Clinton model to some extent, but also tried a different approach, seeking to hew bureaucratic judgment more closely to the White House's political judgment. While both models assert political control over bureaucracy, the Bush strategy treats expertise more like a threat to Presidential authority than the Clinton model did. That should not be surprising. The "permanent campaign" of the Clinton Presidency has morphed and metastasized into the basic operations of governance in the Bush Administration. Critics often charge that the Bush Administration does not care much about policy debate, only about politics. The Bush Administration's distinctive solution to the conflict between the President and the bureaucracy reflects this larger tendency.


Comments:

Professor Balkin:

The Bush Administration has built on the Clinton model to some extent, but also tried a different approach, seeking to hew bureaucratic judgment more closely to the White House's political judgment.

I enjoyed your review of this story. What I found interesting was the way you and most other commentators on this executive order treated the executive and the bureaucracy as if they were different entities in our system of government, as if there was something strange about subsuming "bureaucratic judgment" to the President's "political judgement."

The last time I read the Constitution, the President was the sole executive and the executive departments were his or her subordinates. There is no provision of the Constitution which creates a fourth branch of the government made up of an independent unelected bureaucracy.

Therefore, the very fact that our elected Presidents need to issue executive orders in an often vain attempt to control the actions of the unelected bureaucracy should be more than a little disturbing to those who believe in the democratic republic created by the Constitution. Perhaps, Professor Levinson might like to add a section on this subject to his next book calling for wholesale revisions to the Constitution to make the government more democratic.
 

Unfortunately, the bureaucracy does act as a fourth branch of government, simply due to its size and inertia. Especially at the higher levels, when appointees move back and forth from consulting/lobbying to high level posts, depending on the political administration in control of the White House. I recall a business aphorism "the work will expand to fit the budget alloted to it" that particularly fits here.

However, I do question the use of the term "big government conservatism". From my recollection, conservatism is usually tied to small government proponents. What is being pushed here is better termed "business-friendly bureaucratism." A smaller bureaucracy would also be easier to control.
 

bart depalma writes: "Perhaps, Professor Levinson might like to add a section on this subject to his next book calling for wholesale revisions to the Constitution to make the government more democratic."

As a matter of fact, I think this is an important issue well worth discussing at the constitutional convention that I endorse. Whatever one's politics, it is clear that we have not worked out a truly compelling theory by which we balance off the benefits of "expert" bureaucratic decisionmaking with the legitimate demands of "politics" that includes, among other things, making hard choices about which values to prefer. The original proponents of the administrative state, such as Felix Frankfurter, had an exaggerated faith in "scientific administration"; one can well argue that the Bush Administratioin has too little respect for science, but that's neither here nor there. The importance of Jack's posting (and of my own addendum, I believe) is that even dedicated Bush-bashers can scarcely see this as a brand new development. The Kagan article that Jack cites is indeed extremely important. One doesn't have to buy into exaggerated theories of a "unitary executive" (which, among other things, would require a literally God-like omniescient president capable of making his/her own judgments about all sorts of issues about which
(s)he has no professional training, such as the probability of significant changes in the climate or the epidemeological consequences of adopting certain kinds of health policies, etc. Even if George W. Bush had Nobel Prizes in Economics and Physics, that would still not give him the professional knowledge to determine whether a particular mode of bridge building is actually safe or whether stem-cell research is likely to provide breakthroughs in the treatment of Parkinson's disease. That, I think, is the basic dilemma of contemporary politics, and democratic theorists (and constitutional designers) should indeed be working on it. The US Constitution, drafted in 1787, says absolutely nothing about the administrative state. A 21st century Constitution should, but I confess I don't have strong views on what exact it should say. That's exactly why I want to encourage a conversation about the weaknesses (and, to be sure, strengths) of our present constitutional order.
 

Professor Levinson:

Thank you for your thoughtful reply. I never thought much of the argument in favor of an autonomous bureaucracy that only "experts" and "scientists" can make policy in complicated areas. Rather, these bureaucracy's role should be to advise the elected branches and then the elected representatives should make the policy.

For example, the bureaucracy should suggest rules to Congress and advise why it thinks the rules are necessary, then Congress should decide whether to enact the rules as suggested, amend them or reject them entirely just like any other legislation.

Likewise, the bureaucracy has no business acting as a quasi Article III court. Instead, Congress could enact a specialty Article III with the expertise in each area of law like environmental law which would be independent of the bureaucracy.

Finally, it is the President's job to enforce the law. To the extent that it enforces the law, the bureaucracy needs to be subservient to the President.
 

Its an interesting task - one man micromanaging each and every person working in all administrative offices everywhere.

Hiding political agendas behind the bravado of 'he must enforce the law' holds great promise for ignorant action. Suppose that somebody - left or right legislative or executive - presumes to legislate or dictate scientific truths, and prohibit building bridges using irrational constants or some such crazy thing. Not all truth is consensus. Some physical truths really don't care what people think of them.
 

Prof. Balkin [from the post]:

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.

This, coupled with the cronyism of the Dubya maladministration, is a recipe for disaster. Consider, e.g. the estimable Mr. Deutsch, the infamous Mr. "You're doing a heck of a job" Brown, and the hacks that contributed to the Iraq debacle.... It's not just "politicisation", it's crony welfare for incompetent (but loaded) Republican loyalists. Not even ideological, just craven power-grabbing for the Republican party cadres. Cadres? Yeah, this really is like the "political officers" in the old Soviet Union.

Cheers,
 

"Bart" DePalma says:

Therefore, the very fact that our elected Presidents need to issue executive orders in an often vain attempt to control the actions of the unelected bureaucracy should be more than a little disturbing to those who believe in the democratic republic created by the Constitution. Perhaps, Professor Levinson might like to add a section on this subject to his next book calling for wholesale revisions to the Constitution to make the government more democratic.

And if Dubya orders those scientists to get down on all fours and bark like a dog, they'd better do it ... or their a$$es are grass. The Friday Night Massacre comes to mind. There was an eventual response to that event; one that the Republicans have managed to kill off again. Perhaps time for another reappraisal....

Cheers,
 

Needless to say, I agree entirely with Broken Blogger that "this is no way to run a country." But this is an essentially (and altogether proper) political judgment about the judgment of the people running the country, and, to return to my broken-record theme, it is a terrible blot on our Constitution that it leaves us no way of getting rid of people who are "merely" misrunning the country. George W. Bush has 721 days remaining in office; he is not going to be impeached, nor will high-theory arguments about the proper allocation of power between civil servants and the President make any difference in what will happen over the next two years. Nor will Congress make a particular difference, as it musters its courage to pass "non-binding resolutions" and Mr. Banana-for-a-backbone, Arlen Specter, now says that decision-making power must be shared with Congress without committing himself to proposed legislation (that has no practical chance of passing, given filibusters and the presidential veto) that would indeed clip the president's expansive wings. That is the very meaning of being stuck in an "iron cage," alas.

Incidentally, just to try to foreclose another forty postings of more-or-less irrelevant debate, I will stipulate that there are people who don't share my view of the Bush presidency and who believe that the President's plan, which receives a heartfelt defense in today's Wall Street Journal, is indeed the best of an admittedly bad set of alternatives. The question for you is whether you would be complacent about keeping a president in office if you believed that his/her policies were indeed disastrous (but, by stipulation, not "criminal").
 

broken blogger:

The Bush administration's response has consistently been not to respect the expertise of its own apolitical organs, but to silence them and attempt to subsume them into its political structure as much as possible. Policy becomes strictly the slave of politics.

Perhaps part of the cure is not to deny the (mal)administration the ability to set policy, for better or for worse, but rather to strengthen the free-speech rights of those in the bureaucratic arms of the gummint. I don't think these two different objectives are irreconcilable. Just as no external criticism of administration policy doesn't unconstitutionally hamstring the gummint, criticism from inside doesn't prevent the gummint from doing what it decides to do, and there is definitely a case to be made for the Constitutional right to freedom of speech of gummint employees.

Cheers,
 

Mr depalma: The last time I read the Constitution, the President was the sole executive and the executive departments were his or her subordinates

This is a simplistic view of the way the government works. Congress has an interest in seeing that the laws it passes are executed well, according to the language of the laws. Most members of the executive also want to execute the laws in conformity with how they are written. In a presidential system, however, there is a built in divided loyalty for the members of the executive. The bureaucracy wants to do what the legislature directs it to do, but they are hired and fired by the president, not the legislature. Theoretically the president has no interest in what the laws are, only to see that they are faithfully executed. In reality, however, the president does have an interest, and these often conflict with what the legislature intended, even when the two are of the same party. This has been a perennial problem for our presidential system. In a parliamentary system there is no such conflict: the executive is clearly and only answerable to the legislature.

Efforts of the president to tighten his grip on the bureaucracy only serves to exacerbate the inherent problem of the bureaucracy's divided loyalty.

GYL
 

The Friday Night Massacre comes to mind.

I assume you mean the Saturday Night Massacre. I remember it well -- the day I took the LSAT.
 

"Bart" DePalma says:

I never thought much of the argument in favor of an autonomous bureaucracy that only "experts" and "scientists" can make policy in complicated areas.

"Straw man".

Of course, what we have is a balance between political and bureaucratic (and hopefully less political) interests. Most rational people would say that there ought to be some sort of a balance; "Bart" seems to think that the Constitution mandates no balance at all. Perhaps, but some people have argued that "the Constitution is not a suicide pact" either.

In point of fact, there are grounds for outside control on the government bureaucracy, and it is not exclusively the prvince of the executive. Regulations must (as the Constitution demands) simply carry out or effectuate legislative acts. The administration is not free to propagate any rules it wants; rule-making is subject to both Congressional oversight and the requirements of the APA (or whatever other legislation is passed to enable a regulatory process). If Congress were to adopt new procedures for rule-making that specifies specifically that Dubya's executive order regarding such "political appointees" is improper and invalid, that would be the new law, and Dubya would have to follow. For that matter, if Congress were to remove all regulatory authority from the executive, that would be its prerogative as well.

Cheers,
 

Mark Field:

[Arne]: The Friday Night Massacre comes to mind.

I assume you mean the Saturday Night Massacre. I remember it well -- the day I took the LSAT.


You're quite right. Brain spasm ... or senescence seems to have seeped in. Mea culpa and thanks.

Cheers,
 

Gary Larsen,

That is true, but is one reason why there were various civil service laws passed, to prevent the bureaucracy from being completely beholden to the president. I don't think it has much effect at the top (which are direct appointees--although confirmed by the Senate), although there are many cases of non-cabinet level posts not changed out immediately or thoroughly (Tenet comes to recent mind).

The bureaucracy is large (bloated?), however, and perhaps the best solution (conservative, liberal, libertarian, or any stripe) is to reduce it, to make it more responsive to both the executive and legislative branches, and hopefully the citizenry. This does not require a constitutional revision, mainly political will and consensus.
 

gary:

The bureaucracy wants to do what the legislature directs it to do...

When the direction is as broad as most of the enabling statutes passed by Congress, then Congress has delegated most of its policy making authority to the bureaucracy.

...but they are hired and fired by the president, not the legislature

Under the civil service rules, the President neither hires nor fires the vast majority of those who work in the bureaucracy.

In a parliamentary system there is no such conflict: the executive is clearly and only answerable to the legislature.

Actually, the most fundamental problem with the bureaucracy would not be eliminated in a parliamentary system. That problem is the legislature's delegation of its legislative authority to the bureaucracy.
 

Bart,

I agree on the legislative abandonment of their duties. When they continually write laws which basically tell the bureaucracy to write the rules, they avoid their own duty to do the same.

I see this all the time on financial legislation, and am then amused (not) when you see congresspeople sending in comments to the Fed (irony writ large) on how they would like them to interpret the rules that Congress asked them to create.
 

bart:

If you believe that the fundamental problem of the bureaucracy is the delegation of legislative authority, then I agree that a parliamentary system does not solve that. But such delegation is inevitable in any complex government: it began with the first session of Congress. To me the fundamental problem is rather the confusion and inefficiency that results when there is divided loyalty, uncertain responsibility. Such confusion is only an invitation to corruption. At least in a parliamentary system the lines of ultimate responsibility are clear.

GYL
 

Fraud Guy:

I agree on the legislative abandonment of their duties. When they continually write laws which basically tell the bureaucracy to write the rules, they avoid their own duty to do the same.

Legislating is a plenary, nondelegable power of Congress. Congress cannot "abandon" their duties to write laws, nor may they assign law-making power to anyone else. Courts have held that: 1). Congress must pass laws specifically enabling regulations to implement them, and 2). the regulations that are implemented must fall within the ambit of the enabling legislation, must carry out the laws as passed by Congress, and cannot exceed the bounds of those laws to achieve other purposes. Of course, words (and intentions) being slippery, regulations have in many cases expanded to fit all space available, and sometimes arguably slipped over the line, with the courts being less than rigourous in enforcing the line against transgressions ... but in theory the boundary is still there, and is a Constitutional one. But courts have never held (TTBOMK) that Congress may not pass general legislation and leave to the executive the instittion of regulations needed to implement the specifics of such. As such, the executive is not free, legally or even Constitutionally to run the regulatory apparatus any way it likes (and more than it is free to decide which laws it wants to enforce).

Same goes for declarations of war, FWIW. While the recent sentiment is that both the details of specific regulation and the exigencies of combat in a time of undeclared and ill-defined (and proxy) wars, not to mention supersonic missiles and nuclear weapons, militate for according more authority to the executive in today's modern world, if in fact this be the case, it should be done by changing the Constitution, not ignoring it or honouring it mostly in the breach.

Cheers,
 

The underlying problem here is that the executive (and I consider the bureaucracy to be part of the executive) has gotten much bigger and more powerful much faster than the legislature. This trend is not limited to the US federal government; it exists at all levels of government and world-wide.

The legislative power of the federal government has grown a great deal since 1787. But the legislative power of government in general has not. Extremely intrusive and meddlesome legislation is very old indeed. (Try reading the Pentateuch for the law code of the ancient Hebrews). But the power of government in general to execute its laws has grown immensely since the Constitution was written.

I do not think we can prevent or reverse this immense growth in executive power; it is the result of modern society's commercialization, specialization and expansion in technical fields of knowledge. The question is what to do about it.

Parliamentary governments dispense with an independent executive altogether. Many states of the US divide the executive by having different executive heads elected separately. The US federal government is in a difficult bind. Subordinate all executive agencies to the President, and his power is alarming. Encourage the independence of different agencies, and the bureaucracy becomes unaccountable.

I agree both with the people who say Congress is abdicating its responsibilities and with the ones who say that some such delegation is necessary and inevitable. What we need is some clear line making clear that Congress is not allowed to delegate policy decisions, but only the technical details. A very difficult line to draw, I realize.
 

Keith: I agree that the best solution would be to limit the choices the president has in determining agency heads, but I would rather have Congress itself limit those choices than the Civil Service, which is not really designed to make political appointments. This would go a long way to reducing the conflict between Congress and the executive.

GYL
 

So many books, so little time.
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