A New Bush Power-Grab
February 22, 2007
Frank O'Donnell is president of Clean Air Watch, a nonpartisan, nonprofit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.
Though the Senate stumbled in its effort to rein in President Bush’s war plans, at least the issue was thoroughly debated in the House and in the media. Now it’s time for Congress to directly confront the President again—this time on domestic policy.
I am referring specifically to a new executive order from the White House that collects more power in the Office of Management and Budget (OMB) in a bid to exert a chokehold on federal agencies. At one level, it’s a move that could undermine efforts to achieve such things as clean air and water, safe food and safer cars. But members of the House and Senate need to realize this is also an attempt to wrest power away from Congress. It’s reminiscent the Emperor Augustus’ move to neuter the Roman Senate by eroding its ability to control taxes. Congress needs to push back now—and hard.
At first glance, the changes seem esoteric and abstract: OMB gets to review not only federal rules but “guidance documents.” Agencies must identify a “specific market failure” to justify a new rule. And a “regulatory policy officer” must be installed in every federal agency.
Translation: The executive order not only sharply curbs the power of executive agencies—to the benefit of big businesses—but also requires a White House-appointed commissar in every agency to make sure the bureaucrats toe the line. Critics warn this is a direct shot at congressional authority.
“With its most recent actions, the Bush administration has again restricted agency discretion and made it more difficult for them to do the job that Congress has delegated to the federal agencies,” former OMB official Sally Katzen told a congressional hearing last week.
Readers, please take note: Katzen is no granola-eating, liberal goody two-shoes. She ran the regulatory office of the White House for most of the Clinton administration, and was infamous for battling against then-EPA Administrator Carol Browner’s attempt to set tougher national health standards for smog and soot. We all ought to be alert to her warning.
At a separate hearing last week, the Congressional Research Service pointed out that the new White House move was “part of a broader statement of presidential authority presented throughout the Bush administration, from declining to provide access to executive branch documents and information to presidential signing statements."
How might these new changes work in the real world?
My friends at OMB Watch have pointed out that delaying regulations and guidance could affect a broad range of public protections. For instance, the Centers for Disease Control and Prevention have issued guidelines on what businesses and local governments should do if a flu pandemic breaks out before a vaccine is available.
“The CDC planning document's wide-ranging recommendations could easily have a significant economic impact, which would trigger a review by [OMB] under the new requirements and cause months of delays,” OMB Watch warns.
Similarly, David Vladeck, director of the Institute for Public Representation and an associate professor of law at Georgetown University Law Center, explained to a congressional panel how the most nefarious change—the one involving market failure—could work.
Vladeck noted that the term market failure itself would ultimately be defined by White House political appointees such as Susan Dudley, nominated to run the OMB regulatory office. And Dudley, he noted, previously opposed advanced air bags precisely because no market failure had been identified.
As an analyst with the industry-funded Mercatus Center, Dudley had argued that federal air bag requirements weren’t needed because consumer demand by itself would prompt car makers to make vehicles safer. That argument, of course, flies in the face of decades of real-world experience. Indeed, if Dudley and other proponents of this approach had been running things several decades ago, we wouldn’t have catalytic converters on cars today or scrubbers on power plants—and the air we breathe would be much dirtier.
Now that several congressional panels have examined this abuse of power, it’s time for action. One possible strategy: Use an appropriations rider to declare that “no funds shall be spent complying with this order.” When they were in control of Congress, the Republicans frequently used appropriations bills to try to block federal health and safety requirements. Environmental advocates have generally hated this approach. But in this case, perhaps turnabout is fair play.