Let us begin the lame duck session comrade

White House takes grip on regulators

Published in the Anchorage Daily News, click link above

JOHN HAVELOCK
COMMENT

(Published: February 10, 2007)

Bad decisions being made at home tend to get pushed off the front pages by the consequences of worse ones abroad. Recently, the White House announced that it would place a political appointee in each agency of government having regulatory authority to assure that "White House" policy was being carried out.

Readers who were around for the heyday of the Soviet Union will remember that much the same purpose was served in that government by the appointment of "political commissars" in the many agencies of the USSR to assure loyalty to the party line.

In America, Congress adopts hundreds of laws having regulatory effect. Agency chiefs are delegated power by law to adopt detailed regulations and to propound information bulletins that interpret the intent of Congress as expressed in legislation.

The agency director, nominally nonpartisan, is a subject-matter expert, surrounded by professional staff, selected by the White House and confirmed by Congress. The director is regularly called before congressional committees to justify budget allocations and explain activities. The confirmation process serves as a check on the appointment of unqualified people to serve in these important posts.

Now, each agency chief will find that a person has been appointed, without a confirmation process, holding superior authority within the agency, to oversee the political correctness of each proposed decision. Like the commissar, the White House appointee is likely to do double duty as a political policeman, reporting to the White House on signs of disloyalty within the agency.

This reorganization initiative must have come from a person whose zeal for loyalty outweighs familiarity with principles of public or business administration. A CEO of even a modest-sized organization knows what havoc can be wreaked if some person down the line can bypass the chain of command to change policy or make secret personnel reports. A department can be thoroughly demoralized, its mission crippled and congressional intent thwarted.

This decision is yet another constitutionally significant attack on congressional prerogative by an executive that believes, above all, in its own will. Now that Congress is no longer a rubber stamp, the executive is moving to neutralize congressional power.

The vastly increased use of Signing Letters of Intent fits neatly with this current initiative. In a Signing Letter of Intent, the president, at the time of signing legislation, says what it means to him. Thus, he may avoid a veto of popular legislation by giving it a surprise meaning, stating he will not enforce certain provisions, or tilting the legislation according to his personal purposes.

We have yet to see what weight, if any, the courts will give to signing letters, but there is concern among those fearing that the court has been packed with judges dedicated to enhancing executive power.

It will be interesting to see whether the courts will continue to defer to an agency's interpretations of its own regulations now that a commissar can spin the regulations. Historically, the court's deference stemmed from the court's recognition of the professional expertise of the agency.

It has not been reported where the money will come from to support this supplemental layer of government. But it is likely that the president will use his authority to redirect money within the budget of each agency, rather than using funds from the White House budget.

In yet another expansion of presidential power, positions are being created in the government that were not authorized by Congress and whose purpose is to circumvent congressional purposes not conforming to White House policy.

It is not beyond the power of Congress to identify and correct this misallocation of resources; nor is this a partisan issue. The irony of this maneuver is that while it may strengthen Republican executive power for the remaining two years of the president's term, its effects will remain to be exercised by subsequent regimes, which may very well be Democratic.

Whoever the heirs to this policy may be, it is still bad government. The Alaska congressional delegation might well consider the wisdom of this executive decision and join those considering a countermove.

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John Havelock is a former Alaska attorney general and former White House fellow.