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. 

Congressional Meddling

Vast and used to show they have influence.

• Excessive detail in statutes

• Riders

• Intrusive & frequent investigations

• Independent commissions

• Personnel restrictions

• Committee directives

• Legislative vetoes

• Casework demands

What do some people think about congressional meddling? 

Some people think they should stop. But, Fisher says Congress shouldn’t confine itself strictly to legislative duties. 

Constitutional Debate about congressional meddling

Little was said at Philadelphia Convention, founders were critical of meddling. Framers never clearly distinguished distinct legislative and executive powers. 

Today, constitutional meddling…

Many actors.

• Interest groups: formally invited to participate in agency policymaking

• Courts: review agency decisions

• So, it makes sense that Congress would also be included. 

Congressional powers

Can direct administrative matters using express and implied powers.

Express congressional powers used to direct administrative matters

• Power of the purse

• Presidential appointment confirmation

• Creating offices

Implied congressional powers used to direct administrative matters

• advisory participation

• Investigations

• Oversight

Ex ante powers

During/before grant of authority to executive branch.

• Delegation: granting agency legal authority to act

• Discretion: define boundaries where agency can exercise its authority

• both authorize the executive branch’s involvement in policy making

Ex post powers

After grant of authority to executive branch. Allows congress to manage power after.

• Re-authorization: revisit initial delegation of authority and revise it

• Appropriation: control $ to agencies

• Investigation: hold hearings, subpoenas, initiate GAO investigations

• Confirmation: influence selection of agency heads

Appropriations process

1. Federal agencies create budget request and submit them to OMB. OMB creates proposal for president.

2. President budget proposal to congress

3. 12 subcommittees hold hearings and work on funding gov’t functions

4. House and Senate both pass own budget resolutions. Negotiations, merges, and they pass a single version

5. Congress sends approved funding bills to president to sign or veto

Oversight hearings and investigations

Routine and specialized one-off investigations

• Hearings: personnel testify, political transitions can speed oversight activity

Rule making

Support based on public’s appetite for new public initiatives/programs

• Ie Clean Air Act federal statute, each provision required rules to clarify and refine Congress’ intent (new EPA rules)

• many would take years to write

• not an outlier, 1970 clean air act was a complex regulatory statute

Administrative Procedure act 1946

Rule: whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe a law or policy.

• rules can address any area of public policy

• rules constrained by existing law (authority-granting statute, procedural laws, judicial opinions)

• rules implement statutes passed by congress, which can require agencies to

1. interpret statutory terms (statutes are ambiguous, new tech and business practices)

2. prescribe how statutory goals should be used in practice (how to regulate public interest, OSHA)

Is rulemaking impossible?

Environmental statutes want rulemaking to be at the edge of knowledge and capability

Rulemaking Process

Specific, agencies must, according to APA process,

1. Establish a legal authority

2. Issue a notice of proposed rulemaking (NPRM)

3. Solicit public comments for 60/90 days

4. Respond to public comments

5. Publish a final rule

+ Requirement for regulatory review (Reagan EO 12291)

History of federal rulemaking

1. Early days: treaties with Native Americans, tariffs

2. 20th Century politics creates demand for more rulemaking (Progressive era, new deal to great society)

3. Rulemaking expansion: during 70s, 130 laws expanded authority for rulemaking

   1. New statutes mandated rules (agencies cannot avoid/delay them)

   2. Rulemaking authority is broad (not specific industries and activities, broader efforts to eliminate poverty, pollution, injury, discrimination, etc.)

Case Study, Valujet Crash 1997

Fire in baggage compartment, there had been 19 since 1977

FAA policy process 

Introduced new regulations: 

1. Established legal authority to regulate (from federal aviation act of 1958, delegated discretion to FAA, FAA empowered to adjust airline safety protocols)

2. Published a proposed rule (NPRM)

3. Solicited comments from the public (air transportation association, regulators, firms)

4. Published final rule in Federal Register (fire detection and suppression required in cargo holders

Policy Expertise - Facts and values

If facts are known, people’s values diminish in importance. But, do facts alway make policy choices obvious?

• Costs to society = reasonable people may disagree based on their values

Sunstein’s question

Knowledge matters for policymaking, so sunstein is interested in which branch of government is most knowledgeable/best at getting facts?

Legislative branch

Limited bandwidth

• Generalist (must vote on many policy issues)

• Focused on reelection (donors/constituent opinions)

• Limit attention to trusted others for policy info like heuristics (ie is president is for it, I’m for it)

Judicial branch

Generalists and adversarial nature of court = difficult to acquire detailed knowledge

• don’t have professional staff so can’t do independent investigations

• facts from adversarial process and lawyers present facts in a self-serving way

• good lawyers distort judge’s perception of regulatory issues and create perceptions of capture/bias

executive branch

executive officials may be biased, but branch has built in safeguards against this

• Cost-benefit analysis

• Inter-agency deliberation

• Accountability (OMB)

• outside interest commenting process

executive branch

Decision makers have direct access to info through agency experts who

• work on same policy issues for years (specialists, not generalists)

• focus on policy, not political issues. less distracted by media, public opinion, heuristics, etc.

• can acquire more info if needed through comment process

How to rank priorities?

• Congress is responsive to highly salient issues (disasters, concerns of the day, public opinion)

• executive branch = less outside pressure = sets priorities differently (problems that concern many might not pose serious risks, less susceptible to interest groups or suspicion of entities like the EPA)

Deliberative democracy

policymaking in executive branch = wide-ranging deliberation

• people with diverse perspectives and high levels of technical expertise

• horizontal deliberation: agency routines for coordinating policy and collectively reviewing policy plans

• vertical deliberation: policy decisions move up chain of command if needed (deputies committee, then principals committee)

Example of deliberative democracy

Social cost of carbon, economic cost of emitting a ton of carbon into the atmosphere

• Deliberation by representatives of OMB, Council of Economic Advisers and Environmental Quality, EPA, USDA, dept of commerce, energy, transportation, treasury

• aggregation of scientific, economic, and legal expertise (politics did not play the slightest role)

Case Study: rearview camera act from Congress

Cameron Gulbransen Kids Transportation Safety Act of 2007, directed the Secretary of Transportation to issue regulations to reduce the incidence of child injury and death occurring inside or outside of motor vehicles. 

Rulemaking Timeline

From 2009-2014, takes a long time

Tragedy of camera regulations

Deaths and fatalities from cars reversing (backover crashes)

• Children are occasionally run over by cars backing up 

• 2002, a tragic, highly-publicized accident caught the attention of the media and by extension, Congress

• In response, Congress requested the National Highway Traffics Safety Administration to investigate the matter, held hearings, and passed a statute, tasked the NHTSA to come up with a solution to the issue of limited rear visibility

• Delegated authority to Secretary to initiate rulemaking

What Congress Knew

1. Rear visibility cameras could help

2. Cameras are expensive ($350/car)

3. Members of Congress did not seem engaged in the details

National Highway Traffic Safety Administration budget

$300 million, in comparison to total $200 million in the House to congressional committees, the primary source of Congress’ policy expertise 

Questions as the people in the Department of Transportation

1. What, exactly, has Congress directed you to do

2. How much discretion do you have?

Options are numerous: 

1. Require all motor vehicles to have cameras, sensors, or additional mirrors

2. Only require some types to have cameras, and require mirrors on others

3. Could mix and match

NHTSA discretion

Congress wrote NHTSA a blank check

• No guidance about the decision-making criteria to use (should benefits outweigh the costs? Can the regulation be cost blind?)

• Note that a blank check statute can have political appeal (Congress can avoid difficult optics associated with valuing human life)

Decision Rule

1. Whatever policy yields the greatest benefit, regardless of cost

2. Same as 1, but subject to a constraint of technological feasibility

3. Same as 1, but subject to a constraint of economic and technology feasibility

4. Some form of cost-benefit balancing

5. Whatever yields the lowest costs

Regulatory Review Requirements

Even though Congress was salient on the issue, executive orders provide some guidance.

• According to Reagan EO 12291, agencies must do a cost-benefit test on regulations, picking the option that maximizes net benefits

• Sometimes, this makes deciding easy. 

NHTSA Approach

First gathered data from in-house studies and manufacturers. Basic cost structure emerged for the policy options.

Dilemma

Cost-benefit analysis was not reassuring

• Each option had negative net benefits

• Mirror was the least-bad option (but didn’t solve the problem, thus undermining agency’s mandate)

• Agency had some implicit pressure to choose highest net benefits (EO directs agencies to select these approaches that maximize net benefits)

Proposed Rule

Agency was modest in its proposed rule

• Emphasized that quantitative analysis was arguably incomplete, not incorporationg (victims of backover crashes are very young children, drivers would benefit from increased rear visibility)

• Requested comments on a wide range of possibilities (did not commit itself to only one approach, emphasized the quantifiable, yet recognized that more variables were at stake)

Final Rule

NHTSA went with the camera option, costs exceeded benefits by $200 million. Could some non0quantifiable values make up the difference? 

• Benefit from the ease of driving with cameras

• Preliminary research on the value parents place on their children’s life, not just the valuation an individual places on their own life

• These are speculative, but arguably worth considering

Did manufacturers challenge in court

But they could have

• Companies could object that it waws arbitrary for the agency to proceed in the face of a massive benefit shortfall

• What if NHTSA were taken to court over the regulation? Some might have had a genuine chance of success.

Trump Administration Recent Controversies

Routinely challenges bounds set by Congress

1. Impounded congressionally appropriated funds

2. Sweeping tariffs

3. Bombed Iran without congressional authorization

4. Deports immigrants without due process

Legislative Veto

Provision (usually statutory) that either

1. Requires Congress or some component thereof to approve an executive action or action by an independent agency before it occurs or 

2. Allows Congress or some component thereof to disapprove an executive or independent agency action

Why has Congress included legislative vetoes in statutes?

1. Congressional delegation of policymaking authority to the executive branch empowers the president. Can undermine balance of separation of powers, presidential powers have increased since the New Deal. 

2. Legislative veto allows Congress to reset the balance of power. Provides a post-hoc check on how executive power is exercised. 

One-Chamber Veto

First legislative veto was enacted by the Economy Act of 1932.

1. Authorized president to reorganize the bureaucracy by executive order. Shift agency functions from one agency to another. 

2. Either house of Congress, acting alone, could veto a proposed reorganization plan. Executive orders had to be sent immediately to Congress, did not take effect for 60 days, where Congress could pass a resolution voiding presidnet’s plan. 

Unsurprisingly, they vetoed all of Hoovers’s reorganization plans

Two-Chamber Veto

Reorganization Act of 1939

1. President authorized to consolidate and abolish whole agencies, as long as they served the purposes of the act (efficiency of gov’t operations)

2. Democratic Congress loyal to the president, but they still insisted on a legislative veto. Same as before, but Congress had 60 days to disapprove of the plan through a concurrent (2-chamber) resolution. 

Reorganization Politics after the New Deal

Reorganization authority subject to congressional vet was regularly renewed through 1973

• Democratic skepticism of Nixon in 1973 caused authority to lapse

• Congress reauthorized the Reorganization Act under Carter

• Lapsed again under Reagan

• Congress has not delegated a reorganization power to presidents since 1983 Chadha

Committee Veto

Remarkably low threshold for a veto. Congress required Navy to obtain agreement from House and Senate Naval Affairs Committees before acquiring or disposing of land.

• Advantage: Congress could pass broad authorizing statutes while committees approved or blocked individual transactions case by case.

2 faces of power to Congress in legislative veto

1. Visible power (first face): Congress formally exercises a legislative veto, can be counted and observed, appears in congressional records or agency reports

2. Invisible power (second face): agencies adjust behavior ex ante to avoid a veto. Cautions, Congress-aligned rulemaking. Preemptive consultation with committees, avoidance of politically risky actions. 

INS v. Chadha case facts

Foreign national, overstayed an expired visa. INS initiated deportation proceedings, Chadha applied for a suspension of deportation. AG overturned deportation order, House instituted a legislative veto, blocked the AG, resulted in deportation. 

Chadha’s legal challenge

Petitioned 9th Circuit for review, arguing the legislative veto was unconstitutional. INS sided with Chadha, despite being the defendant )they wanted more power). INS lost and appealed to Supreme Court, fishing for a more expansive ruling from the supreme law of the land. 

3 opinions of the SC decision in Chadha

1. Burger majority opinion: declared all legislative vetoes unconstitutional

2. Powell concurring opinion: remove only quasi-judicial veto types

3. White dissent: keep all legislative vetoes because

   1. Restore balance in separation of powers

   2. Constitutionally permissible because it involves the same actors of standard legislating

Severability of removing the legislative veto

Wide-ranging impact on all statutes with a legislative veto.

• Legislative veto provision in the Immigration and Nationality Act was severed from the statute. Executive branch, could, still make use of delegated providers. Dramatically shifted the balance of power toward the executive.

• Most other statutes that included a legislative veto faced a similar fate

• Post-Chadha, Congress didn’t actually amend many affected statutes, the legislative veto provision is just assumed to have no force

Constraining the President post-Chadha, fixing the statutes

Congress had to fix statutory schemes in the aftermath of Chadha.

• Many post-Watergate statutes that were intended to constrain executive power relied on legislative vetoes

• Many of these same statutes have become prominent again in the Trump era, so it’s important to understand what their original structure was and how it was altered in the wake of Chadha

Watergate Era Statutes (presidency-constraining)

1. War Powers Resolution 1973

2. Impoundment Control Act 1974

3. National Emergencies Act 1976

4. Arms Export Control Act 1974

5. International Emergency Economic Powers Act 1977

War Powers Resolution 1973

Passed in response to circumvention of Congress during the Vietnam War (and enacted over Nixon veto)

• Requires president to report to Congress within 48 hours of introducing US forces into hostilities

• Forces withdrawal after 60 days unless Congress authorizes continued involvement

• Allows 30 day extension for wafe withdrawal

• Originally allowed Congress to end hostilities by concurrent resolution

Impoundment Contol Act

Impoundment: refusal by president to spend appropriated funds.

• Presidents can impound funds for practical reasons (finding a more efficient way to spend money) and political reasons (undermining program that Congress funded)

• Impoundments undermine Congress’ power of the purse. 

• ICA limited president’s ability to impound funds. When a president wanted to defer spending, either chamber could pass a resolution disapproving the deferral. 

• President could rescind spending if Congress passed a joint resolution approving the recission within 45 days of receiving the president’s message. 

Agency-led Policies

While president sits atop the executive branch hierarchy,

• Many bureaucratic policies are agency-led and depend on agency expertise to work

• Policies require patience and cooperation with Congress (funding and programmatic authority in statutes)

• Agency employees are career staff, invest in long-term relationships with Congress and avoid collisions with authorizing/funding committees. 

President-led policies

Different incentives when directing policy. President may be motivated by short-term political gain. 

• Upcoming election, polling results

• Aim to highlight political differences with Congress

• Confrontations and muscle-flexing with Congress may have political advantages, especially in a divided gov’t

Did Chadha have a significant effect on agency decision-making?

Some scholars argue that Congress constrains agency behavior without a formal veto. 

1. Veto-like provisions in statutes

2. Congress has other leverage over agencies

Veto-like provisions

• Form of the veto shifted, no more 1-house or 2-house vetoes. Increase in report-and-wait provisions

• Appropriations committees became main home for post-Chadha “vetoes.” Provisions requiring committee approval before funds can be transferred. 

Congress’ leverage

1. Informal Mechanisms: agencies desire professional working relationship with Congress. Legislative “veto” sends a message to agency; Congress intended to keep a close eye on some particular delegated power. 

2. Quasi-formal mechanisms: report-and-wait provisions. 

3. Formal mechanisms: appropriations riders, statutory control, power to pass new laws and withdrawing/expanding delegated authorities. 

Statutory Control

• Delegating more narrowly

• Including sunset provisions into delegated authority

• Imposing time limits on the exercise of delegated authority (deadlines for regulations)

• Require the executive to consult with Congress before acting (like report and wait)

• Invite participation of outside actors likely to be responsive to congressional concerns (notice and comment rulemaking, standing rights for citizen suits)

Can Congress Constrain the President

Presidents have a different relationship to Congress.

• Presidents may have little incentive to follow Congress’ dictates. Executive reorganization, impoundment control. Presidents demand wide discretion. 

• Congress could substitute revise the relevant statutes (narrower delegations, less discretion. Include various forms of statutory control)

• Presidents typically fight against losing policymaking authority (any statute likely requires 2/3 majority)

Trump Post-Chadha Policymaking Challenges

Trump poses challenges for a post-Chadha Congress.

• Old assumptions about executive-legislative relations. Congress can’t assume good-faith consultation and accomodation. 

• Trump’s political brand, is, in part, to defy conventions (fired inspector generals, Congress’ eyes and ears in the executive). 

President-led Policies

With regards to president-led policies, Congress’ informal and statutory constraints appear weak. 

1. Tariffs: president can use emergency powers to issue tariffs. A veto override (2/3 in each chamber) is needed to block. 

2. Military engagements: president can deploy the military, bomb countries. A veto override is needed to block

3. Budget impoundments (an exception): presidents can impound funds (redirect or not spend) but this requires congressional approval

Trump tariff policy

International Emergency Economic Powers Act of 1977 gives broad policymaking authority to the president to declare and respond to emergencies.

• Emergency powers required a formal declaration (Congress had to be notified, original statute contained a legislative veto)

• Trump has relied on IEPPA more than any prior president. Uses the statutory authority to justify tariffs. SC is weighing the legality of this now.

• What recourse does Congress have? Revise IEEPA, but Trump would surely veto bill.