Editore"s Note
Tilting at Windmills

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January 30, 2007
By: Kevin Drum

WHO RULES THE RULEMAKERS?....The most blogged story of the day (from liberals, anyway) is surely Robert Pear's report about President Bush's latest initiative to remove rulemaking from the realm of technical experts and place it increasingly under political control:

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president's priorities.

....Business groups hailed the initiative.

This move has prompted the usual withering scorn, most of it undoubtedly well deserved. But let's not stop at scorn, people. After all, Bill Clinton was no slouch at consolidating White House control of cabinet agencies himself. Bush has taken this to stratospheric heights -- mainly in a backdoor attempt to gut laws that are too popular to get repealed in a straight-up fight -- but it's hardly an exclusively Republican preserve. What's more, there's a pretty reasonable argument that an elected president should have greater policy control over the rulemakers in our farflung executive bureaucracy.

So let's find out. Are we really opposed to this? This is an executive order, after all, and that means the next president can rescind it at will. So let's get all the Democratic presidential candidates on the record: if you're elected, will you rescind this order? Who's up for this?

Kevin Drum 12:36 PM Permalink | Trackbacks | Comments (73)

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Comments

First we got rid of the special prosecutor's office that dogged Clinton, thereby giving Bush a free ride as president. Now we are bent on getting rid of every rule that benefits the Republicans when they're in office but only after they leave office? I think we need to concentrate on stopping Bush while he's in office and part of that threat may be rules you're putting in place to help Bush may help a Democrat(ic) president in less than 2 years. That might inspire a few conservatives dissenters on executive power...

Posted by: Guscat on January 30, 2007 at 1:00 PM | PERMALINK

George Bush has been a CEO, and actually knows how to run a business. If the next president is similarly qualified, he should have similar power. If he doesn’t, then the order should be rescinded.

Posted by: American Hawk on January 30, 2007 at 1:01 PM | PERMALINK

Good question -- Would our new president rescind the order.

And what about all those other orders this One's issued in the last 6 years?

Posted by: katiebird on January 30, 2007 at 1:01 PM | PERMALINK

I'm with you, Kevin. Ask all the Presidential hopefuls this question. Also ask them if they believe in the "balance of power."

And thank you for pointing out that past Presidents have also tried to do consolidate power, although I do question if Clinton ever went so far as to throw out entirely the opinion of scientists and experts when it related to matters of health and safety. Did he? I'm asking.

From the article:

Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president’s priorities.

This strengthens the hand of the White House in shaping rules that have, in the past, often been generated by civil servants and scientific experts.

Posted by: san antone rose on January 30, 2007 at 1:02 PM | PERMALINK

American Hawk, could you tell me what business George W. Bush has actually demonstrated he can run? So far he seems to be running the government about as well as he ran any of his oil businesses. The only problem is his father can't find a friend who's rich enough to buy the government off him.

Posted by: Guscat on January 30, 2007 at 1:03 PM | PERMALINK

having a political appointee in each govt. agency reminds me sorta of stalin placing a political officer in each army unit to vet each order. almost ruined the russian army.

Posted by: New Yorker on January 30, 2007 at 1:03 PM | PERMALINK

A lot of the deference that courts extend to administrative determinations assumes that the exercise of executive agencies' discretion will be more-or-less technocratic, and this step certainly seems designed to undermine that whole understanding.

Posted by: dj moonbat on January 30, 2007 at 1:03 PM | PERMALINK

My pledge to you: If elected President, I will rescind the Executive Order.

--
HRlaughed

Posted by: Howard on January 30, 2007 at 1:07 PM | PERMALINK

IMPEACH.
It is our only viable option left.

Posted by: Extradite Rumsfeld on January 30, 2007 at 1:14 PM | PERMALINK

George Bush has been a CEO, and actually knows how to run a business

If that isn't proof that americanhawk is a parody troll nothing is.

Posted by: klyde on January 30, 2007 at 1:18 PM | PERMALINK

My response would be, "I approve of the new powers Bush has claimed for the executive branch, and I look forward to using them after my election in 2008."

Posted by: Th on January 30, 2007 at 1:21 PM | PERMALINK

rnc at 1:20: "You really think regulations over the past years have been issued solely due to objective scientific evidence?"

Nice straw man: nobody's claiming that. The problem is that now as few regulations as possible will be based on scientific evidence.

Posted by: Emartin on January 30, 2007 at 1:26 PM | PERMALINK

There is a real problem with performing cost-benefit analysis for every new regulation/rule when nothing in the Statute requires such an analysis and other factors have been indicated. Particularly since there are usually great reasons not to try to do - particularly in the environmental context, where assessment of costs and benefits would be highly speculative and take a long, long time.

Posted by: MDtoMN on January 30, 2007 at 1:27 PM | PERMALINK

Why does this remind me of escape from L.A. Go Snake !!!

Posted by: john john on January 30, 2007 at 1:28 PM | PERMALINK

There has been a long-running duel between the Presidency and Congress over control of the bureaucracy. Both Teddy and Franklin Roosevelt tried to use rhetoric about management to dominate the bureaucracy to the exclusion of Congress. But given the rulemaking authority invested in federal agencies, doing so would in essence strip Congress of its legislative powers - it would be a power grab of the most serious kind.

Posted by: arbitrista on January 30, 2007 at 1:32 PM | PERMALINK

Kevin: your recent simplistic views have overwhelmed you. It is not so much the E.O. but the person executing the orders.

Posted by: raoul on January 30, 2007 at 1:42 PM | PERMALINK
The directive issued by Mr. Bush says that, in deciding whether to issue regulations, federal agencies must identify “the specific market failure” or problem that justifies government intervention.

Seems like a pre-9/11, pre-Katrina mindset to me.

Posted by: Apollo 13 on January 30, 2007 at 1:47 PM | PERMALINK

Like our country needs more Good-Job-Brownies.

Bush's actions speak a lot louder than his bipartisan words - he has NO interest in bipartisanship.

Posted by: mroberts on January 30, 2007 at 1:51 PM | PERMALINK

Alles klar, herr commissar?

Posted by: CDWard on January 30, 2007 at 1:53 PM | PERMALINK

According to the Federal Register, Executive Order 13424 "shall expire on November 30, 2008.''

Posted by: Apollo 13 on January 30, 2007 at 1:57 PM | PERMALINK

In addition to all the obvious stuff about opening the Government up to blatant corruption, a big problem with the order is that the President or one of his inner circle lackeys has to spend time working on every rule. There are only so many White House staff man hours possible. It might take years for somebody to get to a needed regulatory change. This rule, even without the obvious corruption, is a receipe for governmental lockup, the same kind of thing that has plagued centralized executives for several thousand years. Don't the Republicans have any knowledge of the history of government?

If you are a Republican and really believe that the government that govern's best is the government that govern's least, you gotta love the new rule. If you are a big business type with your hands on the throat of every political appointee you got to love it as well. Everybody else, not so much.

Posted by: Ron Byers on January 30, 2007 at 2:06 PM | PERMALINK

My favorite part is where it says "in deciding whether to issue regulations, federal agencies must identify 'the specific market failure' or problem that justifies government intervention."

In other words, we have to show a failure of the market in order to issue new regulations. It sounds as though we must, for example, show how the market in arsenic has failed to stop gold mining companies from dumping it into mountain streams in order to keep them from dumping it. Just showing health effects isn't good enough. Making the world safe for unbridled greed.

Posted by: anandine on January 30, 2007 at 2:08 PM | PERMALINK

Here's the Executive Order from the Federal Register. I picked up the wrong one earlier.

Posted by: Apollo 13 on January 30, 2007 at 2:10 PM | PERMALINK

But given the rulemaking authority invested in federal agencies, doing so would in essence strip Congress of its legislative powers - it would be a power grab of the most serious kind.

Posted by: arbitrista on January 30, 2007 at 1:32 PM

Perhaps then the Congressional delegation of rule making authority to these executive branch agencies was or should be unconstitutional. If Congress wants to enact these rules and regulations, then let them enact them into law; rather than relying on unelected bureaucrats to devise and implement these rules and regulations.

The unitary executive theory simply states that the Constitution places the entire authority of the executive branch in the President. All executive branch agencies are therefore subject to the President's authority to execute the laws as he sees fit. That power cannot be usurped by Congress or given to executive branch agencies. I simply don't see the problem here.

But since you guys seem to have a problem with it, I think it would be very enlightening to ask the Dem. candidates whether they would keep or repeal this executive order if they were to get elected.

Posted by: Chicounsel on January 30, 2007 at 2:17 PM | PERMALINK

In liberal democratic societies the mandarin civil servants form something of an unofficial branch of power. Their autonomy from the political factions that come and go with elections insure the state does not become an anti-democratic ideological tool. The autonomy of science (mostly a state enterprise) is related to this. The control of science is just one part of the authoritarian control of the perception of reality. Instead of using science to come to terms with a changing world ideologues use it to re-enforce their preconceived ideas. As in the Soviet Union they believe nothing is neutral or objective.

If Bush was an advocate for command and control Marxism and the theories of Trofim Lysenko instead of laissez-faire anti-environmentalism and intelligent design it would be perfectly clear to everyone how his administration personifies a classic authoritarian power cult at war with liberal democracy and the expensive demands of the voting middle class.

Posted by: bellumregio on January 30, 2007 at 2:17 PM | PERMALINK

"But given the rulemaking authority invested in federal agencies, doing so would in essence strip Congress of its legislative powers - it would be a power grab of the most serious kind."

This seems to be the prevailing criticism, that the will of the people expressed through Congress is somehow being subverted by this order. Except that Congress knowingly cedes its legislative powers by passing vague statutes that specifically call for the details to be created by executive agencies which are, of course, overseen by the President. The agencies I'm familiar with - NLRB, EEOC, OSHA - all have their structure and general purpose set by Congress and then a general delegation of powers "consistent with this Act." So until Congress refuses to punt on substance, why shouldn't an elected president have greater control over what amounts to his employees? Otherwise we have a separation of powers problem with Congress responsible for a large chunk of the executive branch.

Posted by: scouser on January 30, 2007 at 2:19 PM | PERMALINK

So let's find out. Are we really opposed to this?

Hell, yes, Kevin! I hope that was memrely a rhetorical question -- "consolidating White House control of cabinet agencies" is one thing, but appointing a Soviet-style commisar is quite another, thank you very much.

And while it may be true that "the next president can rescind it at will" (which presumes, of course, a Democratic President, but never mind...), sadly, the next President can't also rescind at will the damage done -- in lost staff, in lax oversight, in overall malfeasance and poor governance and the Republican capitalizing on same as "proof" (a la P.J. O'Rourke) that government really doesn't work.

Really opposed to this? I'm surprised you have to ask. What gives?

Posted by: Gregory on January 30, 2007 at 2:20 PM | PERMALINK

My problem is this, "each agency must have a regulatory policy office run by a political appointee...to make sure the agencies carry out the president's priorities."

I'm full of questions. Aren't Bushco's political appointees already running those agencies? Aren't making those appointments one of the perks of winning the WH?

So why the new and additional layer of bureaucracy? Does GWB need to make room at the trough for more political donors?

Posted by: PTate in FR on January 30, 2007 at 2:29 PM | PERMALINK

You really think regulations over the past years have been issued solely due to objective scientific evidence?

As was pointed out before, rnc's argument is a straw man.

Of course, if rnc has an objection about a particular regulation not "issued solely due to objective scientific evidence", he/she/it is welcome to make the case.

And even then, it hardly justifies Bush's Lysenkoization of the Federal government.

Posted by: Gregory on January 30, 2007 at 2:29 PM | PERMALINK

bellumregio:"If Bush was an advocate for command and control Marxism and the theories of Trofim Lysenko... it would be perfectly clear to everyone how his administration personifies a classic authoritarian power cult at war with liberal democracy..."

That's an excellent answer, thanks!

Posted by: PTate in FR on January 30, 2007 at 2:33 PM | PERMALINK

Well, Kevin, I appreciate this post channeling the spirit of David Broder on this issue, but what do you really think?

Posted by: Marlowe on January 30, 2007 at 2:33 PM | PERMALINK

Often the statutes aren't vague - they make clear that the standard should be based on health, or technology, or safety. You simply cannot read cost-benefit into them.

The agencies are a crucial mechanism for applying laws to numerous situations. The Executive cannot simply rewrite those laws.

Posted by: MDtoMN on January 30, 2007 at 2:38 PM | PERMALINK

Adminsitrative law is the most boring class in law school, and that's saying something. I had to learn about railroad ratemaking. That is blunt trauma.

The paradox of executive agencies is that they might do a better job if they're independent of and insulated from politics, but then they're not so democratic.

But that's not the issue with W- he's not trying to make the agencies more responsive to the popular will, he's trying to make them more responsive to him. And he sucks. The legislative and executive branches both have important roles to play in making these agencies run well, but it's pretty clear that W is doing this to shake down the regs for his friends in power.

Posted by: clb72 on January 30, 2007 at 2:40 PM | PERMALINK

While elected officials cycle through offices, bureaucrats stay in office for long spells. So, the bureaucrats serve to give continuity to what would otherwise be a jerking tug-of-war.

They implement the laws in as reasonable of a manner as possible, while lawmakers often legislate the most unreasonable laws possible. Hence their value.

Posted by: Absent Observer on January 30, 2007 at 2:48 PM | PERMALINK

This seems like a warmed over version of Bush's previous attempt to put a political check on scientific conclusions, and give industry a chance to rewrite regulations and science that affects their business. The goal is to make any agency tasked with objective analysis an extension of the PR office. You think they interfere with climate science now, wait until they make that interference official.

Posted by: Memekiller on January 30, 2007 at 2:55 PM | PERMALINK

Making objective analysis based on politics didn't work with pre-war intelligence, it won't work with science.

Some government data should be collected to know, not to sell.

Posted by: Memekiller on January 30, 2007 at 2:57 PM | PERMALINK

"...there's a pretty reasonable argument that an elected president should have greater policy control over the rulemakers in our farflung executive bureaucracy."

The President already gets to control the bureaucracy by choosing the people to lead those departments - but those choices need to be confirmed in the Senate. Bush wants to install zampolit* without having to confer with the (Democrat-controlled) Senate.

*I've probably butchered the Russian term for, "political officer".

Posted by: Indiana Joe on January 30, 2007 at 2:58 PM | PERMALINK

So let's get all the Democratic presidential candidates on the record: if you're elected, will you rescind this order? Who's up for this?

Not me. This is strictly about Bush. He is feeling like he needs to assert what power and control he has left, and this is a way for him to do so.

If you were going to honestly ask the question, it would be "as President, do you feel that you are not bound by laws, Congress, or judicial rulings, and if public opinion swings away from you on that, will you issue an executive order like this one?"

There are no "arguments on the merits" with Bush. Why do we sometimes forget that?

Posted by: Lame Man on January 30, 2007 at 3:07 PM | PERMALINK

George Bush has been a CEO, and actually knows how to run a business. If the next president is similarly qualified, he should have similar power. If he doesn’t, then the order should be rescinded.
Posted by: American Hawk

Man, I sure hope you're not working for any of the big financial planning copmanies cause I'd hate to have you within spitting distance of anyone's 401K plan.

How many times did Bush go broke prospecting for oil and how many times did his daddy's friends bail him out?

Posted by: cyntax on January 30, 2007 at 3:10 PM | PERMALINK

Jeez, Kevin. Forget long-term analysis of proposed process changes. With this president, process changes are merely means to substantive ends. Do we even want to consider letting THIS PRESIDENT get his way on ANYTHING else? The people have spoken, and they want this runaway train stopped. So let's stop it before it plows into anything else. If another, more thoughtful and less partisan, president wants to actually tinker with process for process's sake, there'll be time enought to actually think this through then.

Posted by: Big House on January 30, 2007 at 3:12 PM | PERMALINK

You have to take each of these cases individually, but really, do you not believe that political considerations are also taken into account by the so-called "technical experts"?

Posted by: Yancey Ward on January 30, 2007 at 3:13 PM | PERMALINK

You have to take each of these cases individually, but really, do you not believe that political considerations are also taken into account by the so-called "technical experts"?
Posted by: Yancey Ward

Or to put it another way, do you believe that businesses need to be able to apply more behind-the-secenes influence on regulations that affect their industries?

Posted by: cyntax on January 30, 2007 at 3:18 PM | PERMALINK

What we REALLY need to do is have a two bills that were pass repeatedly. The first gives these powers to the Good Democrat. The second repeals them in the lame duck session before the Republican president comes in. Seems simple.

Although on a serious note, our democracy is irrevocably weakened. It's created by a social contract or compact as it were, and that lasts only as long as everyone agrees to follow the rules. When one person does not, it shatters the myth that rule of law is backed up by anything but the barrel of a gun. And people act accordingly.

Posted by: MNPundit on January 30, 2007 at 3:23 PM | PERMALINK

"our democracy is irrevocably weakened. It's created by a social contract or compact as it were, and that lasts only as long as everyone agrees to follow the rules. When one person does not, it shatters the myth that rule of law is backed up by anything but the barrel of a gun. And people act accordingly."

I assume that your "one person" includes the bureaucrats who were using semantics to create law while avoiding mandatory OMB review and the public input process. The NYT article makes it clear that this order was partially in response to their refusal to follow the rules.

Posted by: scouser on January 30, 2007 at 3:38 PM | PERMALINK

cyntax,

Whether you like it or not, people have a right to petition the government and, considering the amount of power that government has over business, business-people have strong incentives to do such petitioning.

I just find it amusing how so many people on both sides of the political divide think it appropriate that the other side should have no say in how their lives are regulated by government.

Posted by: Yancey Ward on January 30, 2007 at 3:44 PM | PERMALINK

Article II, Section 3:

he [the President] shall take Care that the Laws be faithfully executed

just what part of the Constitution don't you understand?

Posted by: xtalguy on January 30, 2007 at 3:57 PM | PERMALINK

Yes, I am happy to have everyone on record as to these statements. Problem is, is that no one ever holds anyone accountable anymore. Hell even the party of accountability runs at the sight of the word now.

Of Course I'm opposed to it. EVEN if that means that this move may result in some positive results.

Positive results (from my POV) would be purely conicidental and ancillary to what the administration is trying to do in consolidating power.

I'm opposed because these damn signing statements are, at the very least, against the spirit of what is laid out in the constitution for separation and balance of powers.

I don't care WHO is in office. This is not how it is to be done.

This administration is a purely political beast. They don't give a rats ass about what is right or what should be done.

Posted by: Simp on January 30, 2007 at 4:09 PM | PERMALINK

It's Soviet Corporatism.

Posted by: cld on January 30, 2007 at 4:10 PM | PERMALINK

I just find it amusing how so many people on both sides of the political divide think it appropriate that the other side should have no say in how their lives are regulated by government.
Posted by: Yancey Ward

I just find it amusing the amount of strawmen you throw-up (or should that be regurgitaate?).

Considering that the present adminstration invited Enron over to help advise on energy policy and the Veep's office is still stone-walling on realeasing the minutes from those meetings, I'm gonna say we've got more than our fair share of business inputs on current policies. We don't need more back-room dealing. No ones saying we should deny any inputs from business (that's your strawman if you're not paying attention), we're talking about not expanding their influence. When we see that the present level of influence is being used responsibly maybe we can look at expanding, if the situation warrants.

Posted by: cyntax on January 30, 2007 at 4:45 PM | PERMALINK

I remember the Soviets doing this -- but they were called commissars then, of course....

Posted by: Stefan on January 30, 2007 at 5:10 PM | PERMALINK

I just find it amusing the amount of strawmen you throw-up

Now, now, if Yancey culdn't post straw man arguments, couldn't post at all.

Not that I'd have a problem with that, of course. And, of course, I'm sure we all agree that ol' Yancey is ruggedly individualistic!

But notice how Yancey wraps his dishonesty in a dishonesty:

by the so-called "technical experts"

Objection: assertion not in evidence. Yancey, in his ruggedly individualistic sort of way, would like to imply here that the "so-called "technical experts"" that apply that oh-so burdensome regulation on ruggedly individualistic businesses (and, no doubt, commit various other sins against the Libertarian Faith) aren't really experts.

Yancey, if you have evidence to support this implication, I invite you to present it, in your inimitable, ruggedly individualistic sort of way.

Short of that, you can take your touching -- and ruggedly individualistic! -- faith in your libertarian worldview and leave the discussion to the adults.

Posted by: Gregory on January 30, 2007 at 5:15 PM | PERMALINK

Now, now, if Yancey culdn't post straw man arguments, couldn't post at all.

Well there is that and as you note, it would be *such* a pity.
:)

Posted by: cyntax on January 30, 2007 at 5:31 PM | PERMALINK

Chicounsel: All executive branch agencies are therefore subject to the President's authority to execute the laws as he sees fit.

This shows a gross misunderstanding of the nature of administrative agencies and their relation to the Executive Branch.

Not terribly surprising coming as it does from Chicounsel.

For those enamored of the idea that the president should control policy at this level and with that amount of detail, regardless of the science or any other consideration than politics, remember that a consistent and predictable administrative state is GOOD for business. If the rules change dramatically, even radically, every four to eight years depending on who holds the White House, there will be a lot of unnecessary scrambling and reorganization that will seriously eat into corporate profits and be far more hurtful to the economy than the regulation that we currently have. Reliance on the technical experts results in consistent and predictable regulation; putting partisan policymakers in charge means everchanging regulation by whim. Better the devil you know and have planned for . . .

Posted by: Google_This on January 30, 2007 at 6:14 PM | PERMALINK

Gregory - Yancey was pretty obviously stating that considerations other than the public good will play a role in bureaucratic decisions. The argument is based on public choice theory which posits that bureaucrats - and politicians and others acting nominally in the public interest - are motivated by self interest, just like the rest of us. So bureaucratic decisions are made, at least in part, to increase (1) the agency's power and importance and (2) the bureaucrat's own salary, public reputation, etc. To argue against public choice is to argue that bureaucrats are completely altruistic, as well as completely interchangeable between agencies (if they're passionless robots only concerned about discerning the public good who cares if they're at Energy or Education?), and therefore absolutely different from the rest of us. Why do we generally assume that college grad A joins a corporation for the selfish reasons of increasing his chance at wealth and personal fulfillment (however defined) but college grad B has none of those interests simply because he joined the EPA? Or, within government, whether the mentality that created the military-industrial complex exists only amongst DOD bureaucrats, politicians and defense interest groups but that same mindset would never carry over to the EEOC.
Adult enough?

Posted by: scouser on January 30, 2007 at 6:25 PM | PERMALINK

The argument is based on public choice theory which posits that bureaucrats - and politicians and others acting nominally in the public interest - are motivated by self interest, just like the rest of us.
Posted by: scouser

Sorry, but that strikes me as simply a more verbose strawman than Yancey's. No one is making the silly assertion which you are imputing, namely that the technical experts are inhuman animatrons we believe to be acting only and completely in the common good.

What we are arguing is that the business interests are already sufficiently represented in the policy making process, and with a notable lack of transparency, so that there is no reason to expand their influence beyond its current reach.

Please explain why they need more influence.

Posted by: cyntax on January 30, 2007 at 6:51 PM | PERMALINK

Yes, we are against this.

Posted by: Yes, we are against this. on January 30, 2007 at 6:51 PM | PERMALINK

1) Seems to me the bureaucracy is part of the executive branch; it's hardly unreasonable for the executive to want a fairly free hand in running it. Isn't it better to have identifiable elected officials to hold to account, rather than an impenetrable bureaucracy?

2) If Congress thinks the executive has too much control over the bureaucracy, let it (a) stop delegating rule-making authority, which after all derives purely from Congress, or (b) cut back funding for agencies that issue rules Congress doesn't like.
Of course (a) would require Congress to either permit fewer rules, or spend its time delving into the intricacies of the Clean Air Act; either is a net plus from my standpoint.

Posted by: Shelby on January 30, 2007 at 7:17 PM | PERMALINK

1) Seems to me the bureaucracy is part of the executive branch; it's hardly unreasonable for the executive to want a fairly free hand in running it. Isn't it better to have identifiable elected officials to hold to account, rather than an impenetrable bureaucracy?

Just cause the executive branch wants it, doesn't mean it's a good idea.

And just because there is a bureaucracy, doesn't mean the people are necessarily unaccountable-- they just have been under this administration.

Heckuva a job Brownie!

Posted by: cyntax on January 30, 2007 at 7:28 PM | PERMALINK

Yancey was pretty obviously stating that considerations other than the public good will play a role in bureaucratic decisions.

Let's go to the videotape:

by the so-called "technical experts"

No, Yancey was pretty obviously stating, with both "so-called" and the scare quotes, that experts in public policy are nothing of the kind. I renew my invitation to produce evidence bolstering that claim.

Now, you may choose to bolster Yancey's expression of Libertarian faith with a different expression of Libertarian faith, and I'm sure that you're both just as ruggedly individualistic as all hell, but the fact remains that Yancey threw out a bit of Libertarian dogma that -- surprise, surprise! -- is faith-based (if cynically so) rather than fact-based. So no, hardly "adult" at all -- rather the opposite, albeit of course in a ruggedly individualistic way.

Posted by: Gregory on January 30, 2007 at 7:30 PM | PERMALINK

I would make a guess and say that nobody rules this corrupt administration it is clear from all their past lies to go to war, by the way Bush have you found the WMD's yet, NOT, you little man, worst president in American history.

Posted by: Al on January 30, 2007 at 8:32 PM | PERMALINK

As I'm pretty familiar with China and Russia, where political overseers in technocratic government agencies have been part of the system for lo these 60 years and more, I'd say this is a crappy way to run things. It's true that the consolidation of political-party control over the technocratic branches of the executive is a broad trend since the '80s, and can be seen in such disparate places as Italy (Forza Italia) and Thailand (the now-defunct Thai Rak Thai). But it's also very important to note that these kinds of policies are most effectively and enthusiastically practiced by parties which are substantially backed by corporate interests, and/or are themselves led by plutocrats; and that they tend to be extremely nationalistic. The trend leads to intense corruption and to a loss of democratic control, reduced transparency, and the erosion of constitutional safeguards. This is a serious threat to American democracy and needs to be sharply opposed by the other branches of government.

Posted by: mattsteinglass on January 30, 2007 at 9:31 PM | PERMALINK

I think there's one critical difference between Clinton and any other president seeking greater control over the Fedreal Government's agencies, and George W. Bush.

Clinton et. al. at least seemed to give some credence to the idea that what government does matters in and of itself, that however much politics may drive the process, the policies that result should have at least some connection with reality and the fact-based world. Oh, and I think there might have something in there as well about the "common good", and accountability for results.

Bush and company has never been about accountability, facts, or the common good. Policy is out the window; it's all politics all the time, and keeping the base happy. Since they don't believe in government in any case, this isn't about efficiency or better government; it's all about control, and personal/political advantage. Six years should have made the pattern clear to everyone.

Posted by: xaxnar on January 30, 2007 at 10:04 PM | PERMALINK

Bush is ordering the bureaucracy (the technical experts) to take into account factors that have been repeatedly discussed in the Congressional debates and have been left out of the laws. I am not sure how the President has the constitutional authority to require that the technical experts write into the regulations considerations that the Congress has debated and left out.

Congress is partly to blame because it leaves the rule-making to the bureaucrats. BUT, the rules themselves are always published in the Federal Register, and there are always opportunities for public commentary before they take effect. Congressfolks and their representatives speak or write at those opportunities, as do all other interested parties.

It looks to me like Bush's executive order is more an opportunity for mischief than for accomplishing anything he wants.

Congress should immediately overrule him in whatever legal and effective way it can.

Posted by: MatthewRMarler on January 30, 2007 at 10:08 PM | PERMALINK

I am totally repulsed by our executive branch's attacks on the legislative branch. The signing statements, in particular, are a travesty of the highest order and should be stopped. This issue, though, strikes me as being potentially within the legitimate authority of the elected chief executive. I am a bit surprised it is causing such an uproar. After all, the President appoints cabinet officers to manage the operations of their respective areas, and the criteria they use in choosing division heads and supervisors beneath them is basically political.

I think the real issue, the important issue, is to make certain that the professionals who work in these agencies have unfettered opportunity to make their voices heard when good public policy is suborodinated to political hackery. If we can protect the professionals in these agencies and afford accountability for the ultimate rule making, I think we are on the path to good government.

Posted by: Candideinnc on January 30, 2007 at 10:18 PM | PERMALINK

thanks to Apollo 13 for linking the executive order.

I like this part:

(1) Each agency shall identify in writing the specific market failure
(such as externalities, market power, lack of information) or other
specific problem that it intends to address (including, where applicable,
the failures of public institutions) that warrant new agency action, as
well as assess the significance of that problem, to enable assessment of
whether any new regulation is warranted.''

And I like some of the other parts as well. But these concerns have frequently been addressed in the Congressional debates, and in testimony before the Congress, and they have been omitted from the resultant laws. Just because I like it doesn't mean I like the President improperly arrogating to himself the power to enforce a provision that the Congress has intentionally omitted from numerous laws.

Yancey Ward and others have pointed out that the bureaucrats and technical experts frequently have their own political and professional agendas, and I agree that those are potential problems in the system as it is. However, they have frequently been brought to the attention of Congress, and Congress has written the laws as they are.

What exactly is the law that gives the President (as he claims in the opening paragraph) the the power/authority to do this?

Posted by: MatthewRMarler on January 30, 2007 at 10:29 PM | PERMALINK

The problem lies mainly, as John Dean has pointed out, with the Bush evangelical agenda. Since this group is against using condoms to prevent AIDS and STD's, preferring abstinence, the appointee can modify some law's requirement in a way that would lead to an uptick in AIDS and STD's, especially among the young.
Of course, this is a hypothetical, but we have seen many other cases in which industry lobbyists have actually been appointed to be agency heads so it's not out of the realm of possibility.

Posted by: Mike on January 30, 2007 at 11:19 PM | PERMALINK

MatthewR - The plain meaning of the words included in a statute is normally all that matters; what was and wasn't debated is far down the list of statutory construction. So where Congress delegates rulemaking to an agency with vague terms such as "consistent with this Act" the executive branch is accorded broad deference so long as the decisionmaking methods and the outcomes don't run afoul of the general purposes of the statute (a very high bar). Where Congress specifies decionmaking methods, as with parts of OSHA, the agency is bound by those. Where Congress specifies outcomes, as with certain environmental regs, the agency is bound by those. And that's the solution to your concern: Congress needs to specify, when they delegate instead they've ceded rulemaking control to the executive branch which is of course run by the President.

MattS - I'm pretty sure that the Chinese Constitution as applied (and maybe even as written) doesn't have quite the same emphasis on separation of powers as found in the US document. I think a more serious erosion of US constitutional safeguards is attempted legislative control over executive branch functions and bureaucrats making law without any executive oversight or public comment which, as the NYT article made pretty clear, had been occuring at several agencies prior to Bush's order.

Posted by: scouser on January 31, 2007 at 12:13 AM | PERMALINK

>...Business groups hailed the initiative.

I know a lot of business groups are dumb, but why go stupid?

Apparently those groups have no idea what a anti-business president could do with those kind of powers. Business could be regulated from top to bottom, left to right, at all levels of business.

Yep, they stupid.

Can't wait for '08.


Posted by: James on January 31, 2007 at 12:37 AM | PERMALINK

I am a former employee at a regulatory agency, and I don't find this Executive Order necessary for the simple reason that the top two or three levels at the agencies are all presidential appointees already. What does this order accomplish? It seems that either the president does not understand that these people are already his appointees or that he does not trust them.

Posted by: SteveW on January 31, 2007 at 7:14 AM | PERMALINK

So let's find out. Are we really opposed to this? This is an executive order, after all, and that means the next president can rescind it at will.

Actually, if the next president is a Democrat, s/he won't will rescind it. S/he will push it to the extreme in the opposite direction, ensuring that regulations are revised to meet his/her political objectives.

It is an open question whether filtering regulations through political filters--which is what Bush's order would do--regardless of whether the filtered regulations meet statutory requirements would be legal if challenged in court. But it is not an open question that Democrats would use the order to their benefit.

Posted by: raj on January 31, 2007 at 7:49 AM | PERMALINK

Shelby: Seems to me the bureaucracy is part of the executive branch; it's hardly unreasonable for the executive to want a fairly free hand in running it. Isn't it better to have identifiable elected officials to hold to account, rather than an impenetrable bureaucracy?

The administrative agencies are not part of the Executive Branch.

Congress has delegated legislative authority to these agencies, many of which have been created to be, at least nominally, independent of any of the branches. It's called the Delegation Doctrine. Thus, administrative agencies, if they are a part of any branch, are a part of the Legislative Branch.

The reality is that administrative agencies implement a host of functions from each of the branches (legislative, through rulemaking, administrative adjudication, and administrative investigation).

The Executive Branch, regardless, doesn't own or have a greater say in or control over the administrative agencies than Congress allows.

In other words, there is no constitutional provision that gives the executive more authority over administrative agencies than Congress, much less supreme authority.

Chicounsel either knows this and is being deliberately and obtusely dishonest or he needs some remedial courses in administrative law.

And Marler is exactly right: the president doesn't have the authority, consitutional or otherwise, to unilaterally rewrite legislation to require rulemaking criteria that Congress hasn't mandated or allowed for.

Posted by: Google_This on January 31, 2007 at 9:39 AM | PERMALINK

raj: Actually, if the next president is a Democrat, s/he won't will rescind it. S/he will push it to the extreme in the opposite direction, ensuring that regulations are revised to meet his/her political objectives.

Exactly. See my 6:14 PM post regarding the consequences.

And we know exactly how conservatives would react: it's fine when the GOP is given a power, no matter how unconstitutional or devoid of integrity, but let the Democrats exercise even a smidgen of the same power the GOP gives itself and the pitiful cries and gnashing of teeth and whines about abuse of authority from the very same conservatives will be overwhelming.

Posted by: Google_This on January 31, 2007 at 9:43 AM | PERMALINK

Aren't "rules" meant to be guidelines by which agencies enact and enforce laws?

Please point me toward the phrase "specific market failure" in the constitution and the part where it says political goals and dogma are allowed to supercede legislation.

Posted by: B on January 31, 2007 at 10:17 AM | PERMALINK




 

 

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