At the tail end of a February 14 news conference, President Bush reached out and offered a valentine to his Democratic opponents in Congress, who he declared were "patriotic people who care about our country." He then ticked off a slew of domestic initiatives he'd like to accomplish with his new sweethearts -- including bolstering the system of private health insurance, reauthorizing No Child Left Behind, and creating a guest worker program.
Of course, the Democratic leadership has a different idea of how the 110th Congress will play out, and it seems unlikely that many of Bush's items will make it onto the Democrat's crowded agenda. So what's a president to do in the twilight of his term with a hostile Congress standing in his way?
One possibility is that Bush, like lame duck presidents before him, will seek administrative means for pushing his agenda, namely through executive edicts and regulatory changes -- backdoor avenues that allow the administration to circumvent the legislative process.
In fact, such efforts may already be underway. In January, the White House released an executive order updating guidelines for federal regulatory agencies. The new executive order increases the administration's hold on the rulemaking process by requiring a political appointee within each agency to approve all new regulations and White House review of agency guidance documents.
Guidance, in Washington speak, is an informal interpretation or clarification of existing policy -- including suggestions for best practices and technical descriptions -- that tells businesses how the agency plans to enforce the regulation. In tandem with the executive order, the White House's Office of Management and Budget issued a memorandum to agencies offering new best practices for agency guidance documents. OMB's "Good Guidance Practice Bulletin" would require internal review of significant guidance documents by senior agency officials, as well as notice and comment on guidance documents deemed "economically significant."
Together with the executive order, the bulletin extends the reach of the Office of Information and Regulatory Affairs (OIRA), a little-known but powerful office of the White House, into an area of policy that had in the past been left up to experts within the agency. When the modern administrative structure of the U.S. government was first created under the Administrative Procedures Act in 1946, the stringent requirements for promulgating regulation were not applied to agency guidance. Guidance from agencies was never intended to receive the same bureaucratic scrutiny as regulations because, for one, unlike regulations, guidance documents don't carry the force of law.
Bush's executive order creates a new, politically-appointed regulatory policy officer who would oversee the agency's development of regulations and sign off on guidance documents before they could be released to the public. While communications in OIRA are relatively transparent, deliberations between the regulatory policy officer (RPO) and agency staff would likely be exempt under the Freedom of Information Act as "predecisional." In a February 13 hearing before a House Science and Technology subcommittee on oversight, chairman Brad Miller of North Carolina commented that new regulations could "be smothered in the crib by the RPO" without even the possibility of public scrutiny. Georgetown law professor David Vladeck told the committee that the new executive order "goes back to the days when OIRA was allowed to conduct a big part of its business in secret."
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To understand the implications of these new requirements, consider recent guidance issued by the Department of Labor's Mine Safety and Health Administration (MSHA). Last June, Congress passed a law in response to the Sago mine incident requiring underground breathable air supplies for miners. Congress was vague on the details of how mine operators should comply with the law, and earlier this month, MSHA released a nine-page memorandum providing industry with several ways that mine operators could safely provide up to 96 hours of breathable air for trapped miners. Compressed air can pose its own risks of explosion, and the mining engineers at MSHA were careful to provide technical details on how best to safely store compressed air cylinders, bury air lines, and explain other methods of providing breathable air.
Under the new executive order and OMB bulletin, MSHA's memo could have been subjected to internal review, a public comment period, and approval by OMB's Office of Information and Regulatory Affairs before MSHA could send the notice to mine operators. While the executive order sets clear time limits on OIRA's review of regulations, no such provision exists for guidance documents, giving OIRA license to hold up guidance indefinitely -- a loophole that is already troubling members of Congress. In the meantime, the mining industry is still required to comply with the new law, only without the technical advice of the agency.
"People at the agencies are the ones who are most able technically to write up a document and have it make sense for mine operators," said Celeste Monforton, a senior research associate at George Washington University, who spent 11 years at OSHA and MSHA. "I'm not sure how much value is added by having a technical document like that go to OMB where there aren't any mining engineers."
Agencies like the MSHA, the Food and Drug Administration, and the National Highway Traffic Safety Administration also use guidance to alert businesses to hazardous substances and equipment. (In January, for instance, MSHA alerted miners that a specific model of an emergency breathing apparatus had been known to spark when started, a potentially lethal defect in an underground coal mine.) The preamble to OIRA's good guidance bulletin specifically mentions these types of agency missives -- "pronouncements on substance or product safety" -- as examples of what will now be subjected to greater scrutiny.
Some of the changes in the new policy are more subtle. Agencies are now required to "identify in writing the specific market failure (such as externalities, market power, lack of information) or other specific problem that it intends to address" in justifying new regulatory action. As a House Science committee staffer pointed out, "there is no agreement on what market failure is" in economic circles. "How do you operationalize market failure as your decision-making guide when it's a purely intellectual construct?" Moreover, there are "good reasons for regulations that do not involve market failures," former OIRA administrator Sally Katzen told the committee, such as upholding civil rights or protecting privacy.
The market failure lingo is old hat for small government advocates. In fact, the language has an uncanny resemblance to a policy brief written by Bush's nominee to head OIRA, Susan Dudley. Dudley, a scholar at the industry think tank the Mercatus Center, was first nominated to OIRA in August, but even a Republican Senate was cool to her nomination after public interest groups began raising red flags. A week before announcing the new executive order, Bush renominated Dudley for the position. With Democrats unwilling to move on her bid as Washington's top (de)regulator, Bush is likely to once again circumvent Congress with a recess appointment.
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Flexing direct executive power when faced with an unfavorable Congress is nothing new for presidents, of course. In 1999, with the Clinton White House embroiled in the Lewinsky controversy, the administration began to release a slew of executive fiats and regulations protecting the environment and worker safety. "In the last two years of Clinton presidency, there was an effort made to resort to the use of executive orders in order to stimulate some accomplishment where it would no longer be possible for them to be achieved through the joint effort of the president and Congress," according to Russell Riley, a presidential scholar at the University of Virginia's Miller Center of Public Affairs.
Like Bush's new order, Clinton's pronouncements were not without controversy. In 1999, Clinton issued a directive to the forest service requiring the agency to develop regulations protecting 58 million acres of pristine forest from development. The subsequent regulation, known as the Roadless Rule, was repealed by Bush, and a court battle ensued. In September, a California court upheld the Roadless rule, but the controversy is far from over. "The problem with executive orders," says Riley, "is they can be undone."
Both the Judiciary and Science committees have expressed concerns about the new executive order in public hearings. "Using a presidentially appointed regulatory policy officer who has an absolute veto on what the agency can look at" could be "a real threat to the independence of the agencies and their ability to address statutory obligations," said one committee staffer. Despite these concerns, committee staff indicated they're still a long way from any sort of legislative fix. In the meantime, Congress will take a wait-and-see approach. All agencies must have new regulatory policy officers in place by mid-April or they will be unable to issue any new regulations, and Congress is likely to take a keen interest in Bush's choices for the new positions.
Under Clinton, the use of executive pronouncements was "a manifestation of presidential weakness rather than power," according to Riley. Yet even when the Republicans held Congress, the current administration has often resorted to executive means, such as presidential signing statements, to assert its authority. Whether it's a show of weakness or just another attempt to further strengthen presidential authority, the new executive missives are a sign of things to come.
Genevieve Smith is a journalist living in New York.
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