It appears that Congress has taken interest in a recent Executive Order issued by President Bush that enhances his influence over the regulatory process.
Back in May, I documented the importance of Executive Order 13,422 which built upon an Order issued by President Clinton back in 1993. The Clinton Order had wiped out two important Reagan Orders, and at the time went unnoticed as to the reach that Clinton had taken in his overhaul of the Reagan Orders.
As you well know, control over the regulatory process has been of prime importance for the post-Watergate presidents. If the President is not able to win battles with the Congress, then it is important that he mutes or negates those losses when it comes time to put rubber to road. Thus it was Reagan that empowered the new Office of Information and Regulatory Affairs (OIRA) inside OMB to be his eyes, ears, and muscle over the regulatory agencies. As I discussed last week, the first Bush administration empowered the Vice President to do the work of OIRA when Congress refused to fund it or confirm a Director. Clinton pulled a fast one largely because he had a Democratic-controlled Congress. He folded the Reagan Orders into a new Order, 12,866, and also required the independent regulatory agencies and commissions to inform OIRA of its regulatory planning agenda for the coming year--a way of monitoring the "independents," if you will. President Bush II seemed to like the Clinton Order, as he didn't mess with it when he took office. It took a loss of control over Congress for him to realize that he needed to modify and enhance that Order. And boy did he ever. The Congressional Research Service issued a report last February that breaks down the important components of Executive Order 13,422--but if you want my take, the most important component is placing "regulatory policy officers" (RPOs) inside each agency that filters the regulations on behalf of the White House. Furthermore, the RPOs are also placed inside the "independents," making the president's influence there more tangible than it ever has been.
It is not certain how any of this works because President Bush set the date for it to take effect this July 24, just in time for the 13 appropriations bills to come down the pike later this summer and early fall. By splitting the issuance of the Order from the date it takes effect, the administration was probably hoping that any initial interest would fade as other items clutter the political horizon. That strategy--if it was a strategy--hasn't worked. As reported in today's San Francisco Chronicle," Congress has already moved to short-circuit the Order.
The House has added an amendment to the "Financial Services and General Government Appropriations Act, 2008" (H.R. 2829) that would place inside section 901 of the bill a stipulation that cuts funds for the ability of OIRA to carry out any part of the Order. The amendment (H.AMDT.461), according to Representative Brad Miller (D. NC--there are Democrats in North Carolina?) and Representative Linda Sanchez (D. CA), is designed to stop "this President or any President from seizing the power to rewrite almost every law that Congress passes, laws to protect public health, the environment, safety, civil rights, privacy, and on and on, without answering to Congress or the American people." The amendment passed by voice vote.
There remains an uphill battle for the supporters of this amendment--does the Senate add a similar one, does the amendment survive the conference committee??--but if so, what happens? First, it is nice to see that the Congress is not just paying attention to this sort of activity but also that it actually does something to challenge it. However, these sorts of provisions have a hard time working given that the president has funds that he can move around to fund it anyway. Back in the 1970s, when President Carter granted amnesty to Vietnam War draft dodgers, the Congress passed, and the president signed, legislation that had one of these funding-killer provisions tucked inside. The Congress denied funding to the Justice Department to process the forms for those applying for amnesty. To get around the provision, which Carter declared unconstitutional, he simply moved funds for general purposes to fund their processing.
It is important that we keep an eye to see how this progresses. Currently HR 2829 is awaiting attention by the Senate Appropriations Committee, but considering that Senator Robert Byrd (D. WV) heads that Committee, the provision has a decent chance of staying intact at least until the conference committee. After that, who knows?
