Recall our brief discussion of President Bush’s Executive Order 13422, and the corresponding New York Times article, Bush Directive Increases Sway on Regulation. A few days after he was inaugurated, President Obama issued Executive Order 13497, which in one fell swoop revoked two prior Executive Orders that beefed up regulatory review (the 2002 EO from President Bush, and a 1993 EO from President Clinton). But, President Obama didn’t simply revoke these policies; he ordered the OMB to reevaluate how it reviews agency regulations and identify the best way to do it. The OMB then requested public comments, and as you can see, received a lot of them.
What do you think about the back-and-forth between administrations? How much immediate oversight should the President and OMB exercise over agency regulations?
It seems that the constantly changing Presidential oversight of agency regulations could be a major impediment to agency efficiency and success. Agencies exist in order to regulate very specific and specialized areas of the law… a process which undoubtedly takes a good deal of time and resources (otherwise, Congress could just legislate without the need to enable an agency). When these agencies are also required to conform with an entirely new regulatory scheme every four or eight years, it seems that this would greatly reduce their ability to function and achieve their goals. It does not make sense that every new President feels the need to revamp the previous President’s Executive Orders regarding oversight. Due to their differing political viewpoints, it is understandable that Presidents differ on their views of agencies and how they would like them to proceed. However, a single, enduring oversight practice seems that it should accomplish these oversight needs of each President, regardless of their political views. Every party involved (agencies, Congress, and the President) would be better served by implementing one Presidential oversight framework that will remain in place regardless of the sitting President.
Ms. Sanderson makes a good point that by implementing one Presidential oversight framework, everyone involved would be better served. By politicizing the agencies to the extent that has happened with both the Bush and Obama administrations, it somewhat negates the purpose of the agencies: to provide expertise and regulation in specific areas, regardless of political party. Understandably, the President should have some sort of oversight as a check to agency power. But the ability to go back and forth with each changing administration negates agency goals of effectiveness and efficiency.
While continuity, predictability, and consistency are vital in agency action and executive oversight of that action, the ambiguous nature of agency power creates an area that is ripe for constant reevaluation with every new administration. Agencies are such a central part of the way the federal government interacts with the public that many consider them a fourth branch of the government. Unfortunately, the U.S. Constitution does not enumerate the role and powers of agencies with the same specificity as it does the primary three branches. Perhaps the framers did not anticipate the centrality of agencies in our incredibly complex government, but the fact remains that there is much less in the way of constitutional checks and balances for agencies. Most agency power is derived from specific congressional legislation and this dynamic has created a vast array of agencies whose structure and functioning are distinct from one another. So, not only is there not a clear constitutional design for agency function, there is also very little constitutional guidance for executive oversight. The executive branch is making it up as it goes along and it is no wonder that executives are consistently rewriting the way oversight works. The enormity and necessity of agencies in the modern federal government seems to call for a constitutional amendment to clearly codify executive oversight. Otherwise, we are likely doomed to the revolving door of oversight overhaul.
I agree with the above comments that the continuous reevaluation of agency policy and oversight procedures is likely to impede the agency’s ability to manage its regulatory task efficiently. If some sort of broader executive oversight framework is needed, or a check on that power is needed, the problem is how to institute such a limitation on Presidential power without violating separation of powers doctrine. The problem is made murkier by the fact that, as Ryan noted, the Constitution is almost entirely silent on the issue of agencies, since the framers likely did not anticipate the extent of the administrative state we live in today.
That said, f Congress were to implement some broad legislation, this might be seen as an intrusion into the powers of executive, especially for the executive agencies that are not considered independent. Furthermore, constitutional amendment, as Ryan suggests, would resolve the constitutionality issue, but it is not an easy task. Considering the political give and take that would go into this process, I doubt that an efficient and effective system would come out of such a process.
As such, I think maybe the best method is to do as Obama is trying to do: have the oversight agency (the OMB) reevaluate the whole oversight system through a careful, non-partisan (as can be) review that includes a period of public comment. Hopefully, if a well thought out system of oversight can be implemented, then it will outlast presidential terms and politics for the most part. But this is probably wishful thinking.
I agree with many of the previous comments that subjecting agencies to the whim of presidential discretion and control can be an impediment to efficient agency operation. Practical immunity from the constraints of the political process would clearly allow agencies to operate with a more desirable degree of flexibility and consistency. However, executive oversight is an essential characteristic of the agency system which ensures its democratic nature. These agencies’ power is derived, although somewhat indirectly, from the people, and it is important that they stay somewhat accountable and connected to the public. It would be contrary to the American political system of representative government to have technocrats operating virtually independent from political accountability. That being said I would not be opposed to a Constitutional amendment providing more guidance and consistency for agency regulation.
As many of the previous comments have noted, changing the policies under which agencies operate with each new president presents huge obstacles to the efficiency and success of all agencies. If, however, a current President feels that the previous administration’s framework undermined agency processes and functionality, he seems entitled to create a better regime. All parties that are involved (the President, Congress, the agencies, and the public) would be best served by implementing one oversight framework that will remain in place regardless of the sitting President. Obama’s plan to have the OMB reevaluate the entire oversight system thorugh a non-partisan review with public commentary seems like a good step, but it’s unlikely that any framework implemented by one administration will last if the next administration is from the opposing party.
The executive orders may bring attention to the constant back and forth between adminstration, but even without the executive orders this would happen. Allowing the Presidnet to replace top agency officials by appointment has the same effect as the executive orders. The orders simply highlight what is already taking place in the background. The total overhaul of agencies is more disruptive than exceutive orders in my opinion. I understand wanting to have people in place that support the new administartion and its policies, but there is no consistency in this system.
Although it seems jaded and inefficient, I have to agree with Kanesia that a vast amount of inconsistency already exists in between administration changes. It’s pretty clear that the overhaul of leadership in administrative agencies is the biggest source, rather than specific issues addressed in executive orders. Perhaps that acknowledges that the agency officer should be a unique creature–someone concerned with government accomplishment and less concerned with political parties. I know–good luck with that. On the other hand, although I know ‘inefficiency’ is a taboo in government, the administrative agencies are largely like businesses run by different management. I think it’s important to give the President a large amount of freedom in accomplishing his vision in leadership through the agencies, rather than being bound by the policies and procedures of the past. It’s not just a matter of oversight of past administrations, which I think is actually a larger waste of time and resources, but merely good management principles. If the executive order allows President Obama to push the OMB to come up with a new, clear policy under his administration, it’s more effective than many vague and sluggish pieces of legislation.
The constant back and forth between different president administrations and their impact on agencies will definitely take a toll on the productiveness and efficiency of the agency process. However, because presidents are elected for their beliefs by the majority, they should have a strong say in how the agencies are handling their regulation procedures. They should give agencies the bare minimum on how to handle agency matters and allow the agencies to have the freedom of taking it from there. This way, the views of the incoming president administration will be respected, yet there will remain a consistency among the operations of the agencies.