Ruling Through The Administrative State

This New York Times article on how the Bush Administration has fundamentally reshaped environmental policy shows why it matters so greatly who controls the White House.

A very large number of government policies, in areas ranging from environment, to labor, to consumer protection are shaped below the radar screen by administrative decisionmaking. Administrative agencies, called upon to carry out statutory schemes that often have fairly open-ended directives, can issue regulations that have the force of law. Presidents can staff these agencies with political appointees to carry out the President's ideological agenda. Although Congress can vote to overturn these regulations, there are simply too many for Congress to exercise effective oversight in many cases, and, in any case, the President can veto any such attempts if he likes what his political appointees are doing. In this way the President, if he is so determined, and if he stocks the administrative agencies with ideological loyalists, can have enormous impact on federal law in a relatively short period of time.

During the Reagan Administration, and later, the Clinton Administration, presidents used administrative regulations to achieve goals that could not be achieved directly because Congress was controlled by members of the opposite party. Indeed, in Clinton's case, after 1994, the President, far from working under the radar screen, actively trumpeted the work of administrative agencies as his own in a series of pronouncements in order to show that he could govern without the cooperation of the Republican-controlled Congress.

In the Bush Administration, of course, one party controls all the branches of government. And yet the Administration is still making full use of its powers to reshape law according to its ideological agenda through the administrative state. The reason is that most administrative regulation escapes public comment unless, as in this New York Times story, it is specifically mentioned and critiqued. Congress might balk at the most radical reforms, and many Republicans will not want to be on record as voting for changes that could get them into trouble with swing voters, especially when reforms can be achieved through new administrative regulations (or effective repeal of older regulations). Hence using the administrative state to change environmental law allows the President to get rid of regulations he does not like and impose his ideological vision on a wide array of areas of regulation while protecting members of the President's own party in Congress from political criticism.

In four year's time the Administration has strongly reshaped environmental law, weakening protections against pollution. One only wonders what it would do given a free hand for eight years.