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The Re-balancing of Power

December 2, 2013

Jesse Siegel ’16

Republicans have been up in arms this week over the Obama Administration’s decision to give small businesses another year before requiring them to sign-up for healthcare insurance through the insurance exchanges created by the Affordable Care Act. The primary charge is that the executive branch is circumventing the original deadline set by Congress in the law.  In a Washington Post opinion piece Charles Krauthammer went so far as to call the move an example of “the president lawlessly trying to [change the law] by executive fiat,” in breach of Articles I and II of the Constitution, and part of a broader “outbreak of authoritative lawlessness.”

These criticisms would all bear weight except that Congress had itself already ceded such authority to the White House.  While Krauthammer is correct in saying that the “regulations of governing the law remain unchanged,” the agencies that are charged with implementing ACA were granted “basic administrative discretion” by Congress. This means that while the agencies are prohibited from not enforcing the law, they are given discretion in deciding when to implement the law.

This argument comes to the crux of a broader and growing problem in American government: the decline in influence of the American public on the regulation of federal agencies. Of the nearly 1,300 federal agencies, the vast majority fall under the purview of the executive branch, such as the massive Department of Defense and the tiny Trade and Development Agency. Agencies have had broad powers since the Administrative Procedures Act of 1946 laid out the guidelines for how a government department may make rules. Up to the time agencies followed direction from congressional committee reports and were open to public comment. The public could also challenge the agency directly through the courts or indirectly through the legislative route. The right of public access to the process even expanded under the Rule-making Act of 1990, requiring agencies to consider the option of negotiated rule making whereby federal and public negotiators attempt to hammer out unanimously agreed upon provisions.

Still even these safeguards for public influence gave the agencies broad powers. The agencies have to follow congressional committee reports, but public to comments given on proposed rules can be ignored. The negotiated rule making process allows the public to negotiate directly with federal bureaucrats, but it would be the prerogative of the agency’s representatives to reach consensus yet nothing binds the agency to issuing a proposal unless there is a consensus in negotiations. Failure of the negotiators to agree leaves the public with only the courts and Congress for recourse. The public, in such instances, is an interest group, and not private individuals.

Over the past fifteen years Congress has become the least reliable branch. When Congress issues law they tend -as they did in the ACA- to cede more authority to the agency on how it may be implemented. This abrogation of power by Congress is written into the law because Congressmen lack expert knowledge on the issue or the congressional committee issues weak reports for the law. The congressional report is to tell the affected agency how Congress interprets the law it has just passed. As cooperation between congressional staffs has broken down due to partisan politics, the language of committee reports has become less specific, leaving an agency more latitude to interpret the law to fit its own policies. It also leaves the public less leverage in negotiated rule making. Without clear and articulated opinions on how these laws are to be interpreted, the discussion now revolves around the opinions of the public and those of the agency, thus giving the agency more power as they can disregard public opinion.

Congress’s surrender of power extends beyond the lessening in influence of congressional committee reports. Frustrated by a divided and gridlocked Congress, President Obama has been pushing through his agenda via executive action over the past few years. Such action is due in part to the power of agencies to issue new regulations. Congress could re-assume control and either approve or halt the President’s efforts, but to do so would require passing new laws. As the Senate refuses to take up for vote most bills passed by the House and the House refuses to take up the Senate immigration bill, it seems unlikely that it will occur in the near future. The only alternative for such inaction is in court decisions and congressional elections. The furor over Obamacare in the federal court system and then in the general election last year shows just how important these decisions have become in the absence of congressional action.

What we are witnessing is not the dictatorial anarchy that Krauthammer bemoans. No dictatorship would be answerable to an antagonistic Supreme Court. Nor does one make a fuss about appointing judges to a lower court.  What we are instead seeing is the re-balancing of power in the absence of the legislative branch. Congress is still able to exert power, as the passing of the budget attests. But because Congress so rarely exercises its power the executive branch has used the regulatory agencies to alter the enforcement of law. Now the court system has become the main conduit through which the public can change law. Congress certainly is able to re-assume it’s authority to reign in regulators and give greater direction to the enforcement of laws, but it will only come with greater cooperation from within the branch itself.

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