2.15—Policy & the Branches of Government

The video portion of this section of this section is included within the 2.14 video. This section acts as Part II of Holding the Bureaucracy Accountable and focuses on specific legislation and federal court intervention.

What you need to learn

How the bureaucracy interacts Congress and the courts to create and carry out policy.

Policy Making & the Courts

legislative veto

INS v. Chadha (1983),

interactions between the courts & bureaucratic rule making authority

Legislation & The Bureaucracy

Freedom of Information Act

Whistleblower Protection Act

“The only thing that saves us from the bureaucracy is inefficiency”

Senator Eugene McCarthy (D-MN) continued his statement from above suggesting that if they operated more efficiently, bureaucratic agencies would end up wielding too much power. The branches have to rein in the bureaucracy to maintain accountability, while still attempting to fulfill their responsibilities.

Competing Interests

The federal bureaucracy is enormous, and its day-to-day functions involve thousands of people among hundreds of agencies. Keeping the “fourth branch” working properly and with accountability takes a concerted effort from the other branches.

Congress and the Final Say

Congress and regulatory agencies share a good deal of authority. This sharing has created an unclear area of jurisdiction. One procedure that has developed to sort out any overlap is committee clearance. Some congressional committees have secured the authority to review and approve certain agency actions in advance. Few executive branch leaders will ignore the actions the congressional committee requests, knowing the same committee determines its funding.

Congress established the legislative veto in the 1930s to control executive agencies. The legislative veto is a requirement that certain agency decisions must wait for a defined period of either 30 or 90 days. During the conflict in Vietnam, for example, Congress used the legislative veto to put some limits on the deployment of military activity. But the public interest groups that had fought to create regulatory agencies in the 1960s watched agencies’ lawful decisions being stopped by one or the other house of Congress.

So when the opportunity arose for a case challenging the constitutionality of the legislative veto, Public Citizen, a group advocating for citizen protections and the separation of powers, used its litigation services to eventually bring it before the Supreme Court. The case centered on Jagdish Chadha, born in British-controlled Kenya, who immigrated to the United States in the 1960s to study. When his U.S. visa expired, neither Britain nor Kenya, which had gained independence from Britain in 1963, would accept him, so he applied for permanent residency in the United States. The Immigration and Naturalization Service (INS) approved his application. Two years later, the House rejected it through a legislative veto.

Chadha sued to retain his U.S. residency. Chadha’s fight to remain in the United States became a power play between the president and Congress over the constitutionality of the legislative veto. In INS v. Chadha (1983), the Supreme Court sided with Chadha and against Congress’s use of this procedure. The veto was intended only for the president, not the legislative branch. The Court stated that when the House rejected Chadha’s application, it exercised a judicial function by expressing its opinion on the application of a law, something reserved for the courts. The Court ruled against Congress’s use of the legislative veto as a violation of separation of powers.

Congressional Legislation & The Bureaucracy

The Freedom of Information Act (FOIA), passed in 1966, is a key piece of federal legislation in the United States that ensures public access to government records. This Act allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. It was signed into law by President Lyndon B. Johnson on July 4, 1966, and went into effect the following year.

The FOIA was passed during a time of growing public demand for transparency and accountability in government, influenced heavily by the Cold War atmosphere and the heightened secrecy it engendered. The early 1960s saw increasing skepticism about government processes, particularly after several high-profile incidents such as the Cuban Missile Crisis and the assassination of President Kennedy. These events fostered a climate of distrust and a desire for more open government. The Act was originally spearheaded by California Congressman John Moss after several years of effort, reflecting a broader push towards greater democratic engagement and the right of the public to be informed about government affairs.

Examples of Impact on Recent Events
  1. Handling of the COVID-19 Pandemic: During the COVID-19 pandemic, FOIA played a crucial role in the public understanding of how the U.S. government responded to the crisis. Journalists and watchdog groups used FOIA requests to obtain communications, data, and other records related to the government’s pandemic response. This transparency helped in assessing the effectiveness of government actions, understanding decisions regarding lockdowns, and distribution strategies of medical supplies.
  2. Investigations into Police Misconduct: In recent years, FOIA requests have been pivotal in uncovering details about police misconduct and use of force. For example, following the national outcry over police brutality, journalists and activists have increasingly relied on FOIA to obtain police body camera footage, incident reports, and emails concerning cases of interest. This was evident in the increased public scrutiny and subsequent reforms discussed and implemented in various U.S. cities.

The Whistleblower Protection Act of 1989 is a United States federal law that safeguards federal employees who disclose evidence of waste, fraud, or abuse within the government. The law aims to protect whistleblowers from retaliation, such as dismissal or demotion, ensuring that they can report wrongdoing without fear of reprisal.

The passage of the Whistleblower Protection Act was influenced by growing concerns over government accountability and the integrity of federal operations. During the 1980s, high-profile scandals such as the Iran-Contra affair exposed significant levels of government misconduct and secrecy. These events highlighted the need for a robust mechanism to encourage the disclosure of wrongdoing within the government and protect those who take the risk to expose such activities. The act was designed to strengthen the protections available under previous laws, which were deemed inadequate for ensuring that whistleblowers could come forward safely.

Examples of Impact on Recent Events
  1. Edward Snowden and NSA Revelations (2013): While Edward Snowden himself did not benefit from the Whistleblower Protection Act due to his contractor status and the nature of his disclosures (classified information), his case significantly impacted public discourse about whistleblowing and led to calls for stronger protections. Snowden’s disclosures about the National Security Agency’s surveillance practices sparked a global debate on privacy, surveillance, and the rights of whistleblowers. His situation underscored the complexities and limitations of whistleblower protections, especially concerning national security issues.
  2. Veterans Affairs Scandal (2014): In 2014, whistleblowers within the Department of Veterans Affairs (VA) came forward to expose widespread misconduct in the VA healthcare system, including the manipulation of waiting lists for medical procedures, which reportedly led to patient deaths. The whistleblowers’ actions led to widespread public outrage, congressional investigations, and significant reforms within the VA. The case highlighted the crucial role of the Whistleblower Protection Act in protecting those who exposed the mismanagement and neglect, leading to accountability and changes within the agency.

Competition in the Executive Branch

The different beliefs or approaches of executive departments can create friction between them when the United States must state a position or make a decision. The Departments of State and Defense, for example, have had differences on foreign policy. The Department of State is the diplomatic wing of the government; the Department of Defense trains the military and prepares the country for armed conflict. These differing perspectives can make the development of coherent goals challenging.

Law enforcement agencies sometimes cooperate to find criminals, but they are also protective of their methods and desire recognition for their success in a way that breeds dissension across agencies. The lack of information sharing among the government’s many intelligence organizations before the September 11, 2001, terrorist attacks likely increased the terrorists’ chances of a successful and unexpected attack.

Sometimes upper-level bureaucrats get caught between their boss and the many people who work for them. The president’s policy goals may not take into account some of the practical constraints of the bureaucracy and as a result may be too difficult to achieve. An appointed bureaucrat may therefore “go native” by siding with his or her own department or agency instead of with the president.

Going native is a risky proposition, and many who have publicly disagreed with the president have been replaced.

Federal employees sometimes see corruption or inefficiency in their offices but are tempted to keep quiet. Exposing illegal or improper government activities can lead to reprisals from those in the organization or retaliation that can lead to their termination. However, citizens in a democracy want transparency in government and often encourage such exposure. That is why Congress passed the Whistleblower Protection Act in 1989, which prohibits a federal agency from retaliating or threatening an employee for disclosing acts that he or she believes were illegal or dishonest.

The Courts and the Bureaucracy

Bureaucratic agencies interact with courts in a variety of ways. The implementation of some rules can result in a prosecution of an offender in a criminal trial. Agency fines and punishments can be appealed in federal court. And the U.S. Supreme Court has shaped how Congress can interact with agencies and has generally empowered the agencies with wider latitude to enact their missions-some would say at the expense of democratically developed policy and the rights of industry.

Courts and Accountability

The courts are involved when citizens challenge federal bureaucratic decisions. Because agency actions are not always constitutional, fair, or practical, individuals have the right of due process and review of the law. This judicial review, writes one scholar, serves as a “check on lawlessness, a check on administrative agents making choices based on convenient personal or political preferences without substantial concern for matters of inconvenient principle.

U.S. Circuit Courts of Appeals

Most judicial hearings challenging agency decisions and regulatory punishments are looking for a complicated interpretation of a law, its application, or its constitutionality. These are concerns for appeals courts.

For example, when Justin Timberlake accidentally exposed Janet Jackson’s breast during the 2004 Super Bowl halftime show on a live CBS television broadcast, the Federal Communications Commission took action because of concerns that broadcast decency rules had been violated. The FCC punished Viacom, the CBS parent company, the standard fine for indecency of this type, $27,500, multiplied by the number of affiliates that broadcast the Super Bowl halftime show. It added up to $550,000. The network’s lawyers challenged the ruling in the Third Circuit Court of Appeals. The federal court overruled the FCC and sided with CBS-Viacom.

The Supreme Court simply doesn’t take many cases when appealed from the circuit courts, so the Courts of Appeals have largely become the final arbiter of agency decisions. These court decisions, and most of the rare cases the Supreme Court hears, tend to uphold the idea that unless agency discretion is blatantly unlawful or abusive, deference should go to the agency. ‘The fundamental support for this approach is that the people’s branch-Congress-has enabled the agency and that the bureaucrats making the decisions are experts in the field. And when federal courts examine these disputes, they focus more on the decision-making procedures than the substance of the rules or decisions.

Trends in Bureaucratic Authority

Appeals courts are more likely to protect and uphold independent commission’s decisions than general executive branch department and agency decisions. One study found that lower federal courts uphold the commission’s decisions and punishments about 76 percent of the time. Another found the Supreme Court upheld challenges to these executive branch decisions 91 percent of the time.

When Congress bestows power on an entity it creates but has perhaps failed to explicitly define scenarios or rulings that the agency might make, the Court recommends erring on the side of the bureaucracy. The preeminent case that governs this approach is Chevron v. National Resources Defense Council (NRDC), decided in 1984. The case pitted Chevron Oil against an environmental protection group. But the real question was to what degree an agency can set industry standards when the law governing that power is incomplete or vague.

The Clean Air Act of 1970 required states to create permit programs for any new or modified plants that might affect air pollution. The EPA passed a regulation that grouped these plants into a geographic bubble-area for pollution measurement, creating the possibility that some plants would not need a permit if the modification would not affect their overall impact on the defined bubble. The NRDC challenged the EPA procedure in order to protect the air. The District of Columbia Circuit Court of Appeals set aside the EPA regulation, and Chevron appealed.

The Supreme Court overruled the DC Circuit Court and established the Chevron doctrine under which courts are supposed to defer to agencies when laws defining their responsibilities are vague or ambiguous. Under the Chevron concept, called the Chevron deference, agencies can not only determine what the law is, but they can also change that interpretation at any time.