Congress can legislate federal agencies into existence when they see a need. The legislative branch can also define the organization’s role and sets the budget for federal departments. The president is tasked with appointing a leader and ensuring the organization executes its responsibilities. Bureaucratic agencies have to answer to both the executive and legislative branches, a requirement which should lead to an efficiently functioning federal bureaucracy. However, the oversight, or supervision, of two branches, especially during a time of divided government, can cause inefficiency in the bureaucracy.

The bureaucracy can, at times, struggle to effectively handle their responsibilities. Nonetheless, despite the popular perception that the bureaucracy is an incompetent, oversized system, most federal functions are completed in an efficient manner through the bureaucracy.

Accountability for the Bureaucracy

Determining who is ultimately responsible for any bureaucratic decision is not always clear. Congress creates the big-picture laws and some of the regulations. The president shapes the departments and agencies when appointing Cabinet secretaries and agency directors who have discretionary authority. Challenges to department directives and agency rulings come in the courts, which may uphold or overrule the executive branch body while interest groups and industry try to influence regulations and their enforcement. With so many players interacting with these executive branch sub-units, it is difficult to tell to whom the bureaus, administrations, and offices are beholden.

Also, in trying to follow prescribed law, these executive branch bodies still face political constraints and challenges despite their discretionary latitude. Cabinet secretaries serve at the pleasure of the president but have to please many people, including, to some degree, their subordinates and staff in the field carrying out the law. These secretaries and their employees report to Congress and thus must please legislative members, especially when it comes to funding.

Congressional Oversight

The bureaucracy’s discretion in rule-making authority raises many questions. Does it violate the separation of powers doctrine? How democratic is it for a handful of un-elected experts to create rules that entire industries must follow? Is due process followed when an agency fines an individual or company for violating a policy that no elected representative voted for and on which no American court ruled?

Committee Hearings

Congress has a responsibility to assure that the agencies and departments charged with carrying out the law are in fact doing so and doing so fairly. Congressional oversight is essentially a check and balance on the agencies themselves and competes with the president for influence over them. With some regularity, House and Senate committees hold oversight hearings to address agency action, inaction, or their relationship with the agency.

The list of standing House and Senate committees parallels a list of notable agencies. For example, the House Committee on Homeland Security has jurisdiction over the department with the same name. The Senate Committee on Agriculture, Nutrition, and Forestry oversees the National Parks Service, which is part of the Department of the Interior. Committees and subcommittees receive reports from directors and call the directors to testify.

Cabinet secretaries, agency directors, and other ranking bureaucrats testify before the relevant committee. Sometimes these are routine and collegial encounters that allow for the agency or department to update Congress on how it is doing, what goals it has accomplished, or what plans it may have. At other times, the committee with oversight jurisdiction will call a hearing to get to the bottom of a thorny issue.

Power of the Purse

In addition to general oversight, Congress determines how much funding these organizations receive, asks top-level bureaucrats how they can improve their goals, and sometimes tries to constrain agencies. With the power of the purse, Congress can determine the financial state of an agency and its success when it allocates money. The agency cannot spend public funds until a committee or subcommittee first passes authorization of spending measures. These measures state the maximum amount the agency can spend on certain programs. The distribution of money defined in such an authorization may be a one-time allotment of funds, or it could be a recurring annual allotment. The agency will not receive the actual funds until each house’s appropriations committee and the full chamber also approve the spending. These appropriations – funds set aside for a certain purpose – are typically made annually as part of the federal budget.

The President and the Bureaucracy

Departments and agencies must compete with others for funding and for the president’s ear. Similar departments and agencies have overlapping goals. They all contend that with more money they could better complete their missions.

At the same time, the president exerts authority and influence to make sure their executive ideology is delivered in policy. Through the regulatory review process, administered through the Office of Information and Regulatory Affairs (OIRA), all regulations that have a significant effect on the economy, public health, and other major aspects of policy undergo close review. Any regulations that conflict with the president’s agenda may be questioned, revised, and even eliminated. This office is part of the Office of Management and Budget, which prepares the president’s annual budget proposal and reviews the budget and programs of the executive departments.

In 2017, during the Trump administration, the Federal Communications Commission rolled back the regulations covering oversight of Internet providers, often referred to as “net neutrality”. This rollback lifted regulations from the Obama administration that required cable and telecommunications companies to treat all web traffic equally. The deregulation followed part of President Trump’s ideology – as in other areas, he called for the government to reduce regulation on business so that businesses could grow and prosper in a freer marketplace.

Policy Goals and Streamlining

The bureaucracy can be either an impediment or a vehicle for fulfilling presidential goals. When the bureaucracy works against or impedes the administration’s ideas and goals, presidents are encouraged to shake up or restructure the system. Presidents have used both their formal powers, such as the power to appoint officials, and their informal powers, such as executive orders and persuasion, to make the bureaucracy work for their executive agenda.

Presidents have also tried to curb bureaucratic waste. President Ronald Reagan, who arrived in Washington in 1981, stated in his inaugural address, “Government is not the solution to our problem; government is the problem.” To gain greater control over departments and agencies, he put people who agreed with the Reagan agenda into top positions. He sought officials who would show loyalty to the White House and reduce administrative personnel.

Policy Challenges

One key aspect of enforcement for government agencies is compliance monitoring, making sure the firms and companies that are subject to industry regulations are following those standards and provisions. The Environmental Protection Agency, for example, monitors for compliance in several ways. It assesses and documents compliance, requiring permits for certain activities. It collects measurable scientific evidence by taking water or air samples near a factory to measure the amount of pollutants or emissions coming from the factory. After an EPA decision or ruling, the agency checks whether those subject to the ruling are following it. Officials and regulators of the EPA also go back to the rule writers about the successes or failures of the rules and procedures to either assure fairness in future rules or to tighten them up.

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.

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 the 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, with 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. 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 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 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.

P.S. From Jones

Last week the Supreme Court overturned the Chevron doctrine described above. The court said that judges are the experts, not career officials. We don’t yet know what this will mean, but essentially anyone can now challenge any regulation it doesn’t like. This also calls into question the discretionary authority you learned about last chapter.