In modern political culture, it is easy to forget that America’s current fixation on presidents’ actions – as opposed to focusing on other branches and levels – distorts the intention of the Framers of the U.S. Constitution. They intended the primary branch to be Congress, since it had the power to make laws. In recent decades, this has not been reflected in practice because of two overlapping trends. The first is toward congressional inaction. The second is toward increasing executive lawmaking.
The latter trend has many causes, including the fact that a single executive is simply more prominent a figure than the multiple members of the legislative branch, compounded by the president’s role as the de facto leader of his or her political party. The most important cause, though, is the rise of the administrative state.
The rationale for this development is that in a complex society, experts under the president’s direction will be better able to act quickly in the public interest than the unwieldy process of congressional lawmaking. In a nod to the Constitution, though, Congress would still set broad parameters of policy, but executive branch agencies would create more specific regulations.
This is extremely hard to square with constitutional principles, but it has some features that make it attractive to politicians. It allows Congress to avoid some hard decisions, which can now be made by bureaucrats who don’t have the same type of direct accountability to voters. Where voters are upset by executive agency policies, Congress can privately intervene in specific instances on behalf of constituents and publicly complain about the bureaucracy. It also allows new presidential administrations to make promises that would normally require congressional support, but can now be made by executive orders and agency rules.
Agencies learn, however, that the formal process for making regulations still includes some constraints. This is where “guidance” comes in. Agencies have developed a practice of publishing enforcement manuals and sending letters and similar communications to explain how they understand the law, and by implication, how they plan to enforce it. The guidance is technically not binding, but a state or business receiving the guidance will have a strong incentive to go along with the opinion of the agency enforcing the law which also has the authority to impose penalties.
If this is not enough, state officials and legislators, who would be the natural source of pushback against bureaucratic overreach, may not even know the guidance has been given because there is no consistent transparency requirement.
Utah has responded to this transparency gap by requiring disclosure of federal guidance directed to state and local officials, including school administrators. The promise of transparency is that it allows lawmakers and citizens to understand the demands federal agencies are making and, by extension, be aware of potential costs to taxpayers, decreased accountability, and diminished freedom from that guidance. In some cases, the states may determine the guidance complies with the law, but when it does not, they can push back through state legislation, working with their federal congressional delegations, or galvanizing public opposition. This could change the current incentive structure, which largely favors unquestioning compliance over constructive engagement with agency guidance.
Ultimately, state and national leaders, as well as courts, must insist on a return to the Constitution’s separation of powers, but transparency is a good beginning.
Sutherland Institute recently published a report on transparency in agency guidance, available here.
