Democrats in Congress expressed displeasure this week with a presidential decree aimed at what they see as a White House attempt to rein in agency control over private industry.
President Bush's executive order, published in the Federal Register last month and first reported in trade publications, permits the White House's Office of Management and Budget to delve deeper into agencies' efforts to protect public health and safety by reviewing their "significant" guidance documents.
Business groups have frequently complained that agencies are using guidance documents, as opposed to more strictly vetted regulations, to explain how they plan to implement laws passed by Congress.
Although agency guidance is not legally binding, it can contain words such as "shall" and "must" and can cost businesses significant sums to follow.
When companies have raised challenges - such as a suit brought by Appalachian Power Co. against the Environmental Protection Agency over clean-air emissions guidance - courts have found that agencies overstepped their bounds in issuing guidance that really amounted to a "legislative rule," or something that "had the force and effect of law."
The recent executive order "is important to assuring quality and transparency and accountability in that process," Steven D. Aitken, acting administrator of the regulatory office at OMB, said in an interview this week.
Bush's order also outlines higher standards for issuing new regulations and ensures that a presidential appointee in each agency supervises the guidance and rule-making process. Aitken said that is already happening within most large agencies.
Rep. Bill Delahunt, a Massachusetts Democrat, however, contended in a hearing this week that the order amounted to a power grab by the White House to gain influence over the bureaucracy and to subvert the intent of Congress.
Delahunt suggested that Congress should closely monitor the president's implementation of the order and act to rescind it if abuses were uncovered.
"There has been a clear acceleration, which began with Nixon and is being done more and more, to bring the bureaucracy within the political influence of the White House," he said. "I see this as institutional combat, if you will. We've got to be prepared to go to war. Enough is enough."
The story of the growing power of agencies - and efforts to main White House control over a cadre of more than 1 million workers - is one that has developed over decades in the courts.
Given the difficulties of getting policy changes through a divided Congress, legislative language is often intentionally vague to get broad enough support to win passage.
In one of the nation's most important administrative law cases, the courts ruled that absent clear language from Congress, the responsibility for interpretation falls to the bureaucracy. But political scientists have repeatedly raised the question of accountability in this system: Who elected civil servants?
"Officials who are nominated by the president, and subject to Senate confirmation, have the authority to issue regulations, not just people who are experts or very experienced," Aitken said. "Part of our democratic government is that the people get to elect officials who will exercise governmental power on their behalf. Civil servants need to work for presidential appointees, because it's ultimately a presidential appointee's decision."
Judge Abner J. Mikva said that the nation can't have the bureaucracy be a "fourth branch" of government - "a good concept, but it won't work." Mikva, however, said that Congress still has a role in seeing politics kept out of public health and safety regulations.
Mikva is something on an expert on the separation of powers, having served as White House counsel under President Bill Clinton, chief judge of the U.S. Court of Appeals for the District of Columbia and five terms in Congress. He is a professor at the University of Chicago Law School.
"As unpopular as our current president is, he's not going to get too much done without Congress looking over his shoulder," Mikva said.
The writer welcomes your questions and comments. She can be reached at 410-715-2885 or melissa.harris@baltsun.com. Recent back issues can be read at www.baltimoresun.com/federal.