Regulation by Stealth: Time to Re-Examine Federal Agencies

In recent weeks, President Barack Obama announced plans to use executive authority to implement immigration reforms in absence of cooperation from Congress. House Speaker John A. Boehner also announced plans to initiate a lawsuit designed to check the president's power to take unilateral executive actions. Given this tension, it's a good time to consider how exactly the executive branch is able to implement policy without congressional consent.

The executive branch has many devices at its disposal if it decides to act unilaterally. Indeed, executive branch regulatory agencies evade Congress and other accountability checks seemingly all the time. For instance, agencies issue guidance documents, policy memoranda and other similar documents. Some of these are necessary, but some elicit behavioral changes by the public that look a lot like how regulations work.

For example, in 2012, then-Secretary of Homeland Security Janet Napolitano issued a memo changing deportation policy towards certain illegal immigrants who came to the United States as children. Some blame this policy for partially contributing to the large influx of child immigrants coming from Central America to the U.S. in recent months.

The Internal Revenue Service issued similar policy documents when altering deadlines related to the Affordable Care Act. Agencies sometimes fail to enforce rules that are already on the books, or fail to enforce statutes that are passed by Congress. The failure to implement the "employer mandate" requirement in the ACA is one reason cited for Boehner's lawsuit against the president.

These types of activities allow agencies to evade not just Congress but other oversight mechanisms as well. For instance, the Administrative Procedure Act requires agencies to go through a formal procedure when promulgating regulations. Usually, this entails taking comments from the public before finalizing rules. Review of agency regulations by the Office of Information and Regulatory Affairs, known as OIRA, is another oversight mechanism. OIRA is located within the Office of Management and Budget and, among other things, reviews the economic analysis that agencies produce alongside their really large rules. OIRA review is designed to ensure that sound technical expertise is driving agency decisions.

Theoretically, Congress and the courts should provide a check on regulatory agency actions. Congress has oversight committees and also controls agency budgets. The courts have the ability to strike down regulations that aren't in line with authorizing statutes. In practice, however, Congress rarely reprimands agencies in a serious way and rarely cuts agency budgets significantly. In fact, agency spending increased dramatically in recent decades.

At the same time, courts give substantial deference to agencies, allowing enormous discretion in agency decision-making. The assumption behind giving agencies this latitude is that agencies are the experts and are more reliable than judges to make informed decisions about the proper course of action. Unfortunately, agencies often fail to like experts - as evidenced by the consistently poor quality of economic analyses produced by agencies - but this does not stop courts from being deferential to them.

To improve the present situation, OIRA needs more resources. The agency's budget and staffing levels have fallen significantly over time, even as regulatory agency spending continues to swell. OIRA should have the authority to review all guidance documents, policy memos, waivers and other agency publications. It should also be able to require that agencies go through the notice and comment process or produce economic analysis for policies the OIRA administrator believes will have significant economic effects. At the very least, the government should track agency activities in a more transparent manner, so researchers can better assess the extent of the evasion problem.

In the end, however, much of the problem lies with Congress. It is Congress, after all, that delegates so much of its legislative authority to the executive branch. Congress needs to begin holding agencies accountable, through oversight, setting agency budgets, and legislation that more clearly defines agency duties and powers. Until Congress admits its own role in creating these problems, agencies will continue to evade the checks and balances that have been put in place over the last century, and the American public can have little faith that agency actions actually advance the public interest.