Rethink Executive Authority and Congressional Oversight

Proposals to reestablish Congress’ role in setting policy

As the regulatory state has grown, Congress’ interest in and ability to provide meaningful oversight has shriveled. The majority of policy today isn’t made on Capitol Hill, but rather in the offices of dozens of federal agencies. So, how do we ensure regulatory agencies are subject to proper oversight, particularly when it comes to making policy? Here are several proposals from the “Drain the Swamp?” forum. What do you think of these ideas? What’s missing from the conversation? Tell us your thoughts on these and other solutions in the comments.

Enact a Responsibility for Regulation Act, David Schoenbrod, Trustee Professor of Law, New York Law School

To make members of Congress and the President responsible for major regulations, enact a Responsibility for Regulation Act.[1] Its main elements would be as follows:

1. A “major regulation” (defined as including regulations that either increase or decrease the regulatory protection available to the public) shall not take effect until approved through the Constitution’s legislative process.
2. The House and Senate shall each hold roll call votes on whether to approve major regulations on a fast-track, no-amendment, no-filibuster basis. To ensure that Congress does not kill major regulations by failing to hold roll call votes by the statute’s deadline, such failure should automatically cut off appropriations for members of either house that do not meet the deadline (including appropriations for their salaries, travel expenses, staff, and office expenses) until such time as that house cures the failure.
3. A petition signed by a majority in either house would add an extra thirty days to the deadline for a final roll call vote in order to allow time for a hearing on the promulgated rule. (A hearing would not usually be necessary, however, because the Responsibility for Regulation Act would come with the expectation that both houses hold hearings when an agency proposes a rule that would trigger votes in Congress. At these hearings, the time should be devoted to committee counsel carefully questioning witnesses.)
4. Despite the first point, a major regulation may take effect pending decision by Congress if the president finds need, but shall cease to take effect if the vote to approve the regulation fails in either the House or the Senate.
5. Courts shall not read approvals of regulations as changing the agency’s underlying statutory authority. Approved regulations shall be subject to judicial review.

Legislative and Executive Reforms to Improve Regulatory Outcomes, Susan Dudley, Director of the George Washington University Regulatory Studies Center

Regulatory outcomes would benefit from reforms in both the legislative and executive branches.

Legislative Reforms:

With respect to the legislature, others on this panel have spoken about the Regulations from the Executive in Need of Scrutiny (REINS) Act and similar proposals to limit the ability of executive-branch agencies to adopt major regulatory initiatives without congressional approval. In brief, those proposals would make regulations more like legislation — for better (Congress would be politically accountable for regulatory outcomes) or for worse (the regulatory process would likely be less transparent than it is today). But Congress, as currently configured, does not have the expertise to review the detailed and complex rules developed by executive branch agencies. It needs its own expertise on regulatory matters — a Congressional Regulatory Office (CRO) — especially if it is going to implement something like REINS.

Just as the Congressional Budget Office provides independent estimates of the on-budget costs of legislation and federal programs, a CRO could provide Congress and the public independent analysis and serve as an independent check on the analysis and decisions of regulatory agencies and the Office of Information and Regulatory Affairs (OIRA). It would also not be subject to the structural constraints OIRA faces, including that a) Executive Orders direct agencies to maximize net benefits to the extent permitted by law, but statutes are often silent or expressly preclude consideration of likely costs and benefits; b) independent agencies are not subject to OIRA oversight, and c) OIRA serves the elected President and OIRA’s objective analytical expertise must sometimes defer to presidential policies.

Executive Reforms:

The George Washington University Regulatory Studies Center has offered 10 additional regulatory process reforms that the Executive branch could implement, including extending regulatory oversight to independent regulatory agencies, earlier analysis of regulatory alternatives, evaluating the effect of regulatory proposals on competition and innovation, planning for retrospective review when a regulation is first being developed, and greater deference to states and individuals. The full list is available here and summarized in Forbes.

Modernize the Management of the Administrative State[2], Oren Cass, Senior Fellow, Manhattan Institute

Presidential oversight has evolved haphazardly through an administrative common law of congressional acquiescence, judicial rulings, and executive orders. Of course, if one’s goal for the administrative state is to divorce the bureaucracy from the democratic process and clear the field for whatever regulatory action it deems appropriate, haphazard oversight might be desirable. But if the goal is an administrative state that strikes an effective balance between democracy and bureaucracy — that produces not just copious but also cost-effective regulation, that pursues an agenda consistent with the broader priorities of the government, and that remains legally and politically accountable to the republican structures of power established by the Constitution — then someone must be in charge. And that someone must be the president.

The critical first step in improving presidential administration, necessary to subsequent reforms, is a clear assertion of presidential control. The president should formally establish that authority, eliminating the ambiguity surrounding the executive branch hierarchy, by issuing an Executive Order that requires all agency actions with force of law to receive his signature before appearing in the Federal Register. Signing every new regulation would undoubtedly consume significant time (though likely more so for White House staff required to review and summarize each item than for the president himself), but a claim that “we cannot keep up with the rate of new regulation our agencies are issuing!” induces little sympathy. Increased awareness within the White House policymaking staff of the sheer volume and complexity of regulatory activity should also have a salutary effect on their own calculations regarding the costs and benefits of new initiatives.

Establishing directive presidential authority over the administrative state would lay the groundwork for OIRA to function as the active controller of the rulemaking process rather than as a reactive “reviewer.” An appropriately staffed OIRA could establish and manage the administration’s rulemaking agenda across agencies, a federal regulatory budget, and the research process through which the net benefits of new rules are calculated. Agencies would return to a focus on the core executive tasks of information gathering and monitoring, management of day-to-day operations, permitting, enforcement, adjudication, and determination of regulatory details for which they were constituted long before they were thrust into the role of substitute legislators.

The net effect should not be an aggrandizement of the presidency; rather, reforms in the other branches are necessary to account for this more energized office and cabin its reach. The end goal should be an executive branch with narrowed scope of authority but greater capacity to use effectively the authority granted.

Create a Congressional Regulation Office, Philip Wallach, Brookings Institute

Significant process reforms have often resulted from Congress recognizing its own marginalization and acting to re-position itself as the central actor in the policymaking process. Congress eventually responded to the New Deal’s massive restructuring of government with the Administrative Procedure Act and Legislative Reorganization Act of 1946, and it reacted to the fiscal dominance of Presidents Johnson and Nixon by passing the Congressional Budget Act of 1974. We need a similar move today: Congress must realize just how thoroughly it has allowed itself to become a jeering peanut gallery in the regulatory arena, and move to assert its influence more effectively. It must find a way to put the massive regulatory output of America’s administrative state squarely in the center of its agenda.

One of the best ways to do this would be to create a Congressional Regulation Office (CRO), as Kevin Kosar and I have argued for in National Affairs. Such an office could in part serve as a legislative counterbalance to the existing functions of OIRA, but its greatest impact would come from undertaking systematic reviews of existing policies which would then, by rule, force congressional reexamination of them. If certain reforms under consideration, like the REINS Act, were adopted, something like a CRO would be crucial to ensure that Congress has the capacity to constructively participate in shaping regulatory policy.

Subject Senior Executive Service Members to Congressional Retention Votes[3], E. Donald Elliott, Senior of Counsel, Covington & Burling, LLP; Adjunct Prof. Yale Law School

If President-elect Donald Trump and the Republican majorities in both houses of Congress really want to “drain the swamp,” they must fix the underlying problems in the structure of American government that got us into the mess in the first place. President Trump should propose, and the Congress should enact, a new law to impose term limits on senior administrative agency officials and make them subject to a periodic retention vote by the Congress.

Federal judges are subject to approval by the people’s representatives only once in their careers, but federal bureaucrats not even once. Is it any wonder then that the federal bureaucracy is so out of touch with the people? Legal scholars refer to this as a “democracy deficit”: most of our law today is made by officials in the agencies and the courts who are not responsible to the people and often do not reflect their common sense.

Several solutions to the fundamental problem that agencies are not politically responsible to the people have been tried and failed. Beefing up White House review through the Office of Management and Budget (OMB) of “major rules” costing more than $100 million has helped to some degree but agencies have learned how to avoid such review. Academics often propose taking away the power of agencies to make legislative rules or bringing back the “delegation doctrine” to force Congress rather than agencies to make more policy decisions. Whatever their merits, neither is going to happen. But we can make senior federal bureaucrats who make most of the policy decisions in the federal government more responsible to the people’s representatives.

Congress should enact term limits for members of the “Senior Executive Service” (SES) and make them subject to periodic retention votes by the Congress. Going before Congress, say every 6 years, would make SESers think twice before proposing stupid, dictatorial rules. Each of the 21 House Committees would only need to consider about 60 SESers a year, only a handful of whom are likely to be controversial enough that a majority would oppose their continuance in office. But to avoid a possible constitutional problem under the Supreme Court’s 1983 Chadha decision invalidating the legislative veto, retaining SESers in office at the end of their terms should be by majority vote of both houses, and subject to Presidential veto but not the filibuster. Even before a new law is enacted, the Trump Administration could voluntarily solicit Congressional input into retention decisions for SESers.

The theoretician of the expansion of administrative agencies in the New Deal, James Landis, wrote that agencies would combine “politics and expertise.” It is time to readjust the balance between the two so that there are more democratic checks on the power of unelected bureaucrats in what is today’s most dangerous branch.

[1] For a detailed explanation of the reasoning behind this proposal, see David Schoenbrod, DC Confidential: Insider the Five Tricks of Washington, forthcoming with forewords by Howard Dean and Mike Lee from Encounter Books in March, 2017.

[2] Excerpted and adapted from the National Affairs report, “Policy Reforms for an Accountable Administrative State,” by Oren Cass, Kevin Kosar, and Adam White

[3] Excerpted and adapted from the article Drain the swamp? Why not zero in on unelected senior federal bureaucrats? by E. Donald Elliott published in the American Spectator, Nov. 21, 2016.