Political Controls

• Pages: 153-170
• Author: Richard J. Pierce, Jr.

153

Chapter 10

POLITICAL CONTROLS

Administrative law courses tend to focus primarily on the

relationship between courts and agencie s, but the Legislative and

Executive Branches have far more control over agency actions than

does the Judicial Branch. That is as it should be in a de mocracy in

which unelected life-tenured judges are by far the least poli tically

accountable government officials. If we do not like the way Congress

or the President are shaping age ncy policies, we can simp ly vote the

President or the members of Congress out of office. We would have

no such recourse to the ballot box if judges and Justices exercised

most of the control over agency actions. This chapter will discuss the

many ways in which the politically accountable branches exercise

control over agency actions and the constitutional limits on the power

of the Legislative and Executive Branches to control agency actions.

A. Legislative Controls

Congress has more power over agencies than any o ther

institution. Congress controls agency decision making through its use

of formal mechanisms like statutes, as well as through its use of

informal mechanisms like oversight hearings, confirmation hearings,

budget hearings, and jawboning by individual members.

1. Statutes

Since an agency has only the powers delegated to it by Congress,

every agency action begins with enactment of a statute. Since most

legally binding agency actions are subject to judicial review, most

disputes that are resolved by agencies end with judicial application

of one or more statutes to ensure that the agency stayed within

statutory boundaries.

There are thousands of statutes that authorize agencies to act.

Statutes of that type are often called agency organic acts. They can

be divided roughly into two categories—statutes like the Social

Security, Medicare, and Medicaid Acts, that authorize agencies to

implement benefit programs that account for well over fifty per cent

of the U.S. budget, and statutes like the Clean Air Act, Federal

Communications Act, and Occupational Safety and Health Act, that

authorize agencies to implement regulatory programs. Federal

regulatory programs cost regulatees, and ultimately consumers, far

more than the total taxes imposed by the federal government, but the

annual reports of the White House Office of Information and

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POLITICAL CONTROLS

Ch. 10

Regulatory Affairs estimate that the benefits of federal regulation are

five to seven times greater than the costs of the programs.

Congress can exercise direct formal plenary control over all

agency actions through the instructions it gives to agencies and

reviewing courts in agency organic Acts. As discussed in Chapter two,

Congress often chooses to delegate power broadly to agencies subject

only to ambiguous and malleable standards, and the Supreme Court

acquiesces in such congressional decisions. It is important to

recognize, however, that Congress can at any time limit agency

discretion to any extent it chooses by amending an agency organic act

to give the agency and reviewing courts more specific instructions.

One of the reasons Congress often chooses to delegate broad

power to agencies in agency organic acts is because it has acces s to

many other statutory and non-statutory means of influencing or

channeling agency actions. Many statutes in addition to agency

organic acts have significant effects on agency decision making. The

first nine chapters of this book refer repeatedly to the most important

of those statutes—the Administr ative Procedure Act (APA.) By

describing the procedures agencies must use to make decisions and

the basic re lationship between agencies and courts, the APA has

major systemic effects on agency actions.

Many other statutes hav e similar effects. They include the

Freedom of Information Act and the other open governme nt laws

discussed in chapter twelve. They also inclu de the National

Environmental Policy Act (NEPA)—which requires agencies to

prepare environmental impact statements whenever they consider

taking a major action that will have a significant effect on the

environment—the Civil Service Act—which limits the President’s

power to control agency actions by limiting his ability to hire, fire,

promote or demote the vast majority of people who participate in

agency decision making—and the Information Quality Act (IQA)—

which requires agencies to act only on the basis of studie s and other

data sources that are considered of sufficiently high quality.

Many of these statutes have subtle but powerful indirect effects

that far exceed their direct formal effects. Thus, for instance, NEPA

has no jud icially enforceable substantive standard. Thus, in theory,

an agency can prepare an imp act statement that concludes that an

action will have devastating effects on the environment and still take

the action. Since its enactment in 1968, however, NEPA has had the

effect of forcing all agencies to take e nvironmental factors into

account in their decision making. Thus, it has had the effect of tilting

all agency decision making in more enviro nmentally benign

directions even though it is impo ssible to identify its effects on any

particular agency action. The 1996 IQA is not even enforceable by a