Policy Process Part V: Policymaking in the Executive Branch

Egg yolk view of executive branch bureacracy

Yolk is president and WH, white part is executive offices (OMB, etc.) and outside is cabinet agencis (DoJ, etc.)

Presidential powers

1. Expressed Powers (Article II)

2. Implied and evolved powers

Expressed powers

1. Executive: appoint heads of departments, commissions, etc.

2. Legislative: veto legislation. Forces Congress to bargain with president

   1. Tit for Tat, Congress bundles bills and attaches riders

3. Judicial: appoint judges, grant pardons

4. Military: commander in chief, appoint top brass

5. Diplomatic: sign treaties, appoint ambassadors

Implied and evolved powers

Not explicitly granted in Constitution. Ambiguities in meaning (ie necessary and proper clause)

• Courts have resolved some ambiguity and granted implied powers.

  • Congress’ power to investigate (oversight of executive branch)

  • Presidential power to remove executive officials

  • SC power to review/overturn exec/legislative actions

• Take Care Clause

• Powers as legislator expanded 

• Delegated authority

• Administrative legislation

Article II, Section 3

Take care clause. The President shall take care that the laws be faithfully executed

Presidential power as a legislator expanded bc…

1. Congress’ delegation of lawmaking power to executive branch, allowing presidents to interpret what legislation means. 

2. Implied powers to issue regulations, proclamations, and EOs (administrative legislation)

3. President’s ability to lobby and recommend legislation

Origins of delegated authority

Strict Constitutional interpretation would prohibit Congress from delegating legislative power (Article 1 gives Congress power over legislation)

• Delegated power cannot be redelegated (Congress was given legislative power so they can’t redirect it)

• However, within reason, SC allows Congress to give general guidelines for policy and let the executive branch fill in the details

• Examples: 

  • Economic Stabilization Act of 1970: President can issue orders to stabilize prices, wages, rents, etc.

  • OSHA Act of 1970: executive branch ensures people have safe/healthy working conditions

Administrative legislation

Regulations, proclamations, and Eos, implement delegated authority

• Must be consistent with Constitution and statutes

• Regulation without harmony with statutes = nullity. Legal only if consistent with existing law

• Courts ensure that administrative legislation is consistent with Constitution/statutes

Centralization of presidential power

1. Congress creates OMB (1921): starts modern presidency, gives president control over budgets and a way to review/block legislative proposals from agencies

2. Reagan EO 12291 (1981): creates a new function, regulatory review, allowing presidents to centrally review/block agency regulations

Central clearance

Presidential filter between executive branch and Congress

1. OMB reviews legislative proposals from agencies, proposed EOs, proclamations, exec branch Congressional testimony, regulation

2. OMB coordinates liaison between president and agencies (recommend president to sign/veto a bill)

Regulatory review

Started in 1970s to reduce impact of regulation on businesses

• Subjects regulations to cost-benefit analyses

• OMB meets with industry groups to discuss pending regulations

Office of Information and Regulatory Affairs

regulatory review took several turns past 1980.

• Congress created OIRA in 1980 for Paperwork Reduction Act. Reviews government information requests. OIRA administrator appointed by OMB director

Reagan EO 12899

Added regulatory review to OIRA. 1986: Congress made OIRA administrator subject to Senate confirmation.