Congressional Power over Executive Branch Policy Making: Limitations on Bureaucratic Regulations, 1989-2009

Article excerpt

The technical complexity of many problems facing government necessitates delegation of authority to the bureaucracy (Bawn 1995; Epstein and O'Halloran 1999; Huber and Shipan 2002). Delegation entails providing bureaucrats with legal authority to determine what actions the government will take to pursue goals embodied in laws. Because the president is charged by the Constitution under the take care clause to faithfully execute the laws, he is positioned to direct the activities of bureaucrats who make decisions about the shape of policy decisions. Therefore, in delegating vast amounts of authority to the executive branch, Congress has facilitated the growth of presidential power.

Presidents have taken advantage of this opportunity, "politicizing" agencies (Moe 1985) by placing political appointees within agencies with which the president experiences policy disagreement in order to direct these agencies to respond to presidential policy priorities (e.g., Lewis 2008; Wood and Waterman 1994). Presidents also issue "signing statements" when they sign into law bills enacted by Congress. Importantly, in issuing these statements, presidents try to affect how the bureaucracy implements laws, potentially moving policy outcomes closer to their priorities (Kelley and Marshall 2008; Whitford 2012). Perhaps most critically from the standpoint of influencing agencies, presidents act unilaterally to create new policies before Congress can influence bureaucratic decisions (Howell 2003) by issuing executive orders (Mayer 2001) and employing other policy-making tools.

Increasingly, however, scholars recognize that, in the face of an ambitious executive branch, Congress has conducted oversight aggressively (Aberbach 1990; McGrath forthcoming) and reformed its rules to counterbalance the president. Such reforms include centralizing authority for appropriations bills in House and Senate appropriations committees to match the power Congress delegated to the president in the Budget and Accounting Act of 1921 (Schickler 2001, 89-94; Stewart 1989, 204-5), the reorganization of the committee system to more closely mirror agency jurisdictions and the concomitant creation of a routinized rulemaking process under the Administrative Procedures Act in 1946 (Rosenbloom 2000), and the centralization of the budget process in House and Senate budget committees through enactment of the Budget and Accounting Act of 1974 (Schickler 2001, 195-200). Congress also employs tactics short of institutional change to combat presidential power. For example, congressional committees that observe the president issue a large volume of signing statements on policy matters within their jurisdictions increase the volume of bureaucratic oversight that they conduct (Ainsworth, Harward, and Moffitt 2012).

Similarly, witnessing President George W. Bush take advantage of Senate recesses by making recess appointments to senior administrative positions in the bureaucracy, Senate Democrats proceeded to remain in session to prevent the president from making appointments free of senatorial confirmation. This tactic limited the degree to which a number of independent agencies and regulatory commissions could make policy decisions favored by President Bush that strayed from the priorities of Senate Democrats (Black et al. 2011).

Likewise, research on the appropriations process has pinpointed a specific reason why the power of the purse (Fenno 1966) is a major component to congressional power over the executive branch. This power is through the use of a policy tool known as the limitation rider. Limitation riders are provisions in appropriations bills that forbid agencies from spending money to perform specific actions, allowing Congress to proscribe agencies from making policy decisions. As part of appropriations bills, limitation riders are "privileged" in that they do not need to overcome procedural hurdles to be considered for enactment into law by the full House and Senate. …