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Administrative Law and Procedure

Political Controls Over Agency Action—legislative And Executive Oversight

Government institutions that set and enforce public policy must be politically accountable to the electorate. When the legislature delegates broad lawmaking powers to an administrative agency, the popular control provided by direct election of decision makers is absent—but this does not mean that administrative agencies are free from political accountability. In many areas, policy oversight by elected officials in the legislature or the Executive Branch is a more important check on agency power than is JUDICIAL REVIEW.

Federal agencies are dependent upon Congress and the president for their budgets and operating authority. An agency that loses the support of these bodies or oversteps the bounds of political acceptability may be subjected to radical restructuring. In the 1970s, the Atomic Energy Commission (AEC) took the politically unpopular position of promoting NUCLEAR POWER, while underemphasizing safety and environmental protection. It paid the price when some of its promotional functions were transferred to a newly created DEPARTMENT OF ENERGY, and the AEC was restructured into the NUCLEAR REGULATORY COMMISSION, which was responsible for the former agency's regulatory duties.

Federal administrative agencies must be responsive to legislative and executive oversight mechanisms. During the 1970s, many members of Congress began to feel that the normal process of legislation was too cumbersome for effective control of administrative action. They devised a solution called the legislative VETO. Legislative vetoes took a variety of forms, but most of them directed agencies to transmit final administrative rules to Congress for review before they became effective. Just as this approach was gaining in popularity and use, the U.S. Supreme Court declared the legislative veto unconstitutional. This ruling involved the Immigration and Nationality Act (8 U.S.C.A. § 1101 et seq. [1995]), which allowed either house of Congress to nullify a decision by the attorney general suspending deportation of an alien. Jagdish Rai Chadha brought suit when the House of Representatives exercised this power in his case. The Court held, in INS v. Chadha, 462U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), that the legislative veto was essentially a one-house veto, and, therefore, it violated Article I, Section 7, of the Constitution, which states that no legislation is valid unless passed by both houses of Congress and signed by the president (or, if the president vetoes it, repassed by two-thirds of each). The Court said that in Chadha, the House veto of the attorney general's decision was a legislative action, and therefore Article I, Section 7, applied. The Chadha decision invalidated all of the nearly 200 legislative-veto provisions that were on the books.

Another important legislative-oversight mechanism is the annual appropriations process. Congress determines the budget and appropriates money for the various administrative agencies. An administrative agency that angers Congress, or a key member of either house, could find itself with less money to work with in the next year, or could even see certain programs eliminated. A legislature may also enact a SUNSET PROVISION, which provides for automatic termination of an agency after a stated time unless the legislature is convinced that the need for the agency continues. Sometimes, a sunset provision is written into the statute that creates a particular agency, but a general sunset law may terminate any agency that cannot periodically demonstrate its effectiveness. A useful agency can always be revived or retained by the enactment of a new statute.

Like Congress, the president uses a variety of powers and techniques to oversee and influence the operations of administrative agencies. The Appointments Clause of the Constitution (art.II, §2, cl. 2) states that the president may generally appoint all "officers of the United States," with the advice and consent of the Senate. Under the authority of this provision, presidents often appoint agency heads who share their political agenda. The president's power to remove an agency head depends on whether the agency is an independent agency or a cabinet department. Independent agencies tend to be multimember boards and commissions, like the Securities and Exchange Commission, FEDERAL COMMUNICATIONS COMMISSION (FCC), and NATIONAL LABOR RELATIONS BOARD (NLRB), which are run by officials who are appointed for a fixed period that does not correspond to the president's term of office. There also may be statutes protecting the commissioners from arbitrary removal during their terms of office. The heads of cabinet-level agencies, called secretaries, serve at the pleasure of the president and may be removed at any time. (Appointments of cabinet secretaries must be confirmed by the Senate.)

The president also reviews agency budgets, through the OFFICE OF MANAGEMENT AND BUDGET (OMB). A president's disapproval of agency initiatives can block appropriations in Congress. The president may also use an EXECUTIVE ORDER, a formal directive, to direct federal agencies or officials. One technique that has been used frequently is the president's authority to modify the organizational structure of the bureaucracy. Under the Executive Reorganization Act (5 U.S.C.A. §§ 901–912 [Supp. 1993]), the president may submit a REORGANIZATION PLAN to Congress, transferring functions from one department to another. This law recognizes that although responsibility for the organization and structure of the Executive Branch is vested in Congress, the president needs flexibility to carry out executive duties.

Public opinion is another forceful weapon against unbridled agency action. Some jurisdictions of the United States have created special public offices to investigate complaints about administrative misconduct. Investigators holding these offices, called OMBUDSMEN, usually have broad authority to evaluate individual complaints, to intercede on behalf of beleaguered victims of red tape, and to make reports or recommendations.

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