Archive | Bureaucracy

The IRS and a statistics problem

John Mashey writes:

Have you or do you know if anyone has looked at this hypothesis:
“The IRS unfairly targeted conservative organizations for scrutiny in getting 501©(4) status.”

I’d think one would want to have:
N years of rates of application (because I conjecture there was a big burst after Citizens United)
Some grouping of those into “conservative,” “progressive” or other.
Rates of investigation, time taken.
Rates of rejection.

I haven’t followed this carefully enough, but it actually looks like an reasonable social science question, if only to identify the
data actually required to reach any real conclusions.

I have no idea.

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Presidential Patronage Makes for Bad Managers

In this paper we examine the relationship between presidential patronage and federal agency performance. Using PART management scores for 1,016 federal programs during the Bush Administration, we compare the performance of federal programs administered by appointees from the campaign or party against programs run by other appointees or career professionals. We introduce new means of overcoming the shortcomings of PART scores in order to make reliable inferences from this measure of federal program performance. We find that federal programs administered by appointees from the campaign or party earn lower PART scores than programs run by other appointees or by career executives. We conclude that while appointing persons from the campaign or party provides presidents an important source of political capital and arguably improves accountability, it also has costs for agency performance.

From a new article by Nick Gallo and David Lewis (gated; ungated).  PART refers to the Program Assessment Rating Tool.  Here’s a graph of the average PART scores by different types of appointees:

gallolewis

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Recess is Over?

You will recall that in January 2012, President Obama named Richard Cordray to head the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board, all by recess appointment. The catch was that the Senate was not in recess—or at least said it wasn’t. Since 2007, originally in response to George W. Bush’s aggressive use of recess appointments (he made 170+ ) and then via Republican pressure after Obama took office, the Senate has held brief pro forma sessions even during periods of legislative inactivity, purportedly preventing Senate recesses of sufficient duration to allow for recess appointments.

The Obama administration argued that since the Senate did not – perhaps even could not (there is some dispute here) – conduct regular business during these sorts of sessions, it was not available to perform its advise and consent function. Thus it was de facto in recess and such appointments could in fact be made.  Sarah Binder’s post from the time detailing this is here; Nolan McCarty’s take is here. Much useful background may also be found in this CRS report on the subject.

Other than a predictable slate of kudos and denunciations, correlated rather heavily with partisan preference, the Senate made no formal response back in January 2012. But those regulated by the CFPB and NLRB did. A series of court cases ensued challenging the legality of the actions taken by the appointees appointed in this manner. So, pro forma meets de facto meets the D.C. Circuit Court of Appeals—which late last week ruled against the NLRB appointments.The full opinion is here (those wishing to cut to the recess appointment chase may jump to the bottom of p. 15.)

Actually the court went much farther than merely holding that the Obama appointments override the Senate’s prerogative to decide for itself when it is in recess. Indeed, the opinion turns on an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2:3. After reviewing the grammatical distinction between “a” and “the,” the court comes to the (or at least an) “inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” This, the opinion goes on, “is not an insignificant distinction. In the end it makes all the difference.”

Indeed it does, at least to the court’s logic, and potentially to the recess appointment power. According to the ruling, “The Recess” must be the period between Senate sessions—thus, during the interim between (say) the 110th Congress, 1st session, and the 110th Congress, 2nd session, provided that the Senate has adjourned, sine die, in between.  Despite the fact that intrasession appointments have occurred since 1867, and with some regularity in the postwar era, the court’s decision declares that practice off limits.

Further, the court goes on, only vacancies that actually come into being during a Senate recess (sorry, during “The Recess”) can be filled in this way. A vacancy that has existed since before said Recess doesn’t count. This, too, has some grammatical support within Article II —which holds that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate”—but goes against what had seemed to be well-settled practice. To quote another CRS report: “Although this question was a source of controversy in the early 19th century, Attorneys General and courts have now long supported the first, broader interpretation of the phrase.” That is, they have held that ‘may happen’ should be read ‘may happen to exist.’

I tend to agree that the Obama administration overstepped. In its memo a year ago, the DOJ’s Office of Legal Counsel concluded that “the President… has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”  As the court responded, “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” Was the president acting rationally, in the face of opposition obstructionism? Certainly. That doesn’t mean his actions were legal, or should be applauded.

On the other hand, to retroactively impose a definition of “recess” that goes against 145 years of practice is itself overreach. While the DC Circuit’s opinion is drenched in the judiciary’s favorite self-congratulatory perfume – Eau de Marbury v Madison – its logic is perhaps not self-evident. Note that there is an 11th Circuit Court of Appeals ruling from 2004 (when Democrats in the Senate challenged a judicial recess appointment made by President Bush) that upheld the appointment (in quite different circumstances, when the Senate was indubitably in recess, albeit not between sessions.)  That decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. 8).  CRS notes more broadly that while there is more controversy over intrasession recesses than those between sessions, “through interpretation and practice, a ‘Recess’ for purposes of the Recess Appointments Clause encompasses both the inter- and intrasession recesses of the Congress.”  (The DC Circuit dismisses out of hand the 11th Circuit’s reasoning, even as it professes “respect for our sister circuit” (see pp. 26ff).)  One practical objection to the present holding would be to wipe out not just administrative decisions made by recess appointees over time (since 1867?) but, presumably, to vacate decisions made by judges appointed this manner.

In any case, even things that are self-evident are not always self-executing (to borrow a phrase)—and it is worth remembering that constitutional ambiguities between the branches are normally worked out in practice. Even when the Supreme Court declared that legislative vetoes were unconstitutional, in the 1983 Chadha case, Congress and the president continued to put them into law—because they were too useful a powersharing device to set aside.  Likewise one imagines that the last word – and the last recess appointment – is some ways off.

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On My Own

Presidents – in Washington, as well as Paris – do like to act on their own.  As today’s New England edition of the New York Times trumpeted, “Obama Vows Broad Campaign to Fight Gun Violence, Issues Executive Orders Bolstering Existing Laws.”

That headline suggests two observations about a hot topic this week: presidential unilateralism. (A.k.a., “an existential threat to this nation.”)

First, “executive order” is a term applied as shorthand to a variety of administrative directives by the president, but it is actually a specific and codified type of such directives. Indeed, the 23 things listed in the White House document (here) laying out the president’s gun control agenda are not executive orders. Presidents have other means of seeking to direct and govern actions by government officials, and executive orders (because they require various levels of review) are not always the most flexible or quickest choice. Continue Reading →

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Lessons Not Pre-Learned

Peter Baker’s thoughtful “lessons learned” piece on the Obama first term in yesterday’s NY Times suggests that the President might have done well to add some political science classics to his pre-inaugural reading list in 2008-09. (It is, of course, never too late!)

Generally, “Mr. Obama in private sometimes expresses surprise at the constraints of the office.”  But the idea that the presidential office is hemmed in, constitutionally speaking, is a staple of the presidency subfield. “In form all Presidents are leaders nowadays,” wrote Richard Neustadt in 1960 (he was then a professor at Mr. Obama’s alma mater). “In fact this guarantees no more than that they will be clerks.”  Thirty years later,  when he wrote a new preface to Presidential Power (by then entitled Presidential Power and the Modern Presidents), Neustadt saw little reason to change his mind. “Presidential weakness was the underlying theme” of the first edition, and “weakness is still what I see: weakness in the sense of a great gap between what is expected of a man (or someday woman) and assured capacity to carry through.”  He famously quoted Harry Truman’s take on incoming President Dwight Eisenhower: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike… he’ll find it very frustrating.”

In recent years “new institutionalists” have sought to dethrone Neustadt’s perspective by replacing his focus on bargaining with one on institutional control. But these scholars nonetheless start from the same foundation. That is: presidents are institutionally and constitutionally constrained. How can they nonetheless exercise power? In Terry Moe’s important 1985 article “The Politicized Presidency” – from a Brookings Institution edited volume – the answer is that they must leverage their formal powers and shape those institutions closest to them, by avoiding Congress, centralizing functions in the Executive Office of the President, and seeding appointed loyalists throughout the wider bureaucracy.  This analysis, along with a whole range of scholarship centered on what Richard Nathan dubbed The Administrative Presidency, presages Obama’s turn to the unilateral tactics Baker describes (“Once a virtual prime minister tethered to Congress, he now advances immigration, environmental and education initiatives through executive authority.”)

Baker also notes that “so, too, has [Obama’s] reliance on oratory diminished. At first, there was no problem, it seemed, that could not be solved by a presidential address. ‘Race problem? Speech,’ one former aide recalled. ‘Afghanistan? Speech.’ But speeches by themselves rarely generated the action he sought.”  Again, this is hardly a shocking discovery. These days George Edwards is a one-man industry devoted to the proposition that presidential rhetoric often—mostly—falls On Deaf Ears. In a forthcoming article on Obama’s relations with Congress during his first term, I borrow a phrase from British Prime Minister Benjamin Disraeli—“A majority,” he said, “is the best repartee.”

I do not intend to belittle the challenges of being president, nor the learning curve involved. This is merely a plea for those in the White House (and those who want to be there) to think about what we already know about those challenges. If they don’t believe me, perhaps they will believe Napoleon. “A leader has the right to be beaten,” he noted. “But never the right to be surprised.”

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Waiving at History

Recent weeks have seen a series of attacks on the Obama administration’s use of waivers to exempt states from the provisions of federal law. Most prominent until now had been Education Secretary Arne Duncan’s issuance of waivers to the No Child Left Behind Law. Yesterday, though, Mitt Romney accused the Obama administration of seeking to remove the work requirements from the 1996 welfare reform law (TANF, Temporary Aid to Needy Families) by waiver. More excitable sites exclaim things like “Obama guts welfare reform with executive order!” 

Just to be accurate, there is no “executive order” actually in play here – this is a term which refers to a specific form of presidential directive. (See Ken Mayer’s book on the topic, or link to the most recent such orders issued.) It is also different from the immigration order granting deportation exceptions, which was conceived as a prioritization of resources under extant law rather than as a ‘waiver’ per se. Instead, the welfare issue stems from a mid-July guidance letter issued by the Department of Health and Human Services which notes the department’s interest in “encouraging states to consider new, more effective ways to meet the goals of TANF, particularly helping parents successfully prepare for, find, and retain employment…. HHS is issuing this information memorandum to notify states of the Secretary’s willingness to exercise her waiver authority under section 1115 of the Social Security Act to allow states to test alternative and innovative strategies, policies, and procedures that are designed to improve employment outcomes for needy families.” As this suggests, waivers are driven by discretionary power within the statute itself, normally vested in the departmental secretary rather than the president directly. (Though presidents should hope that their departmental secretaries care what they think on such matters.)

It is at the least premature to suggest the present bureaucratic blandness amounts to “gutting” employment requirements under TANF, unless “effective” and “outcomes” are defined in particularly sinister ways down the road. For its part the White House says this line of attack is “blatantly dishonest” and promptly released a 2005 letter from Republican governors asking that TANF reauthorization contain “increased waiver authority.”

Surely, surely, surely it is only a coincidence that Governor Romney was a signatory to that letter. Still, there is a long history of waivers to welfare requirements, as the states take up their “laboratories of democracy” mantle and experiment with different mechanisms for achieving policy goals. See, for instance, the archival memo below (click on it for a better view) from Reagan attorney general Ed Meese, reporting a 1988 presidential decision to (a) support only welfare reform legislation that enhanced the president’s ability to grant more waivers, and (b)  set a goal that half of all the states would receive waivers from federal welfare requirements. Traditionally, of course, Republicans favored more waiver authority, not less, while Democrats were nervous about what states might evade given such autonomy.

 

 

In the case of No Child Left Behind, the authority to waive provisions of the law is vested in the Secretary by Section 9401 (“Part D – Waivers”). Waivers can be granted, at a state’s request, if it can show that the waivers will “(i) increase the quality of instruction for students; and (ii) improve the academic achievement of students.”  In a subsection some portions of NCLB are exempted from the possiblity of waiver – including for instance civil rights requirements, maintenance of effort (to prevent states from making up their own funding cuts with NCLB money), and the NCLB’s funding formulae.  But the big-ticket, indeed titular, item—that all students become “proficient” in math and reading by 2014—is not listed there. Thus, in exchange for various policy commitments at the state level, things that the Obama administration thinks will increase the quality of instruction for students and improve their academic achievement, the Ed Department has the authority to waive that burden. So far more than half of all states have sought to do so – Governing magazine provides a useful map here.

Waivers certainly provide a given administration with flexibility under what are normally broad statutes where it is difficult to foresee in advance how implementation might play out. (Indeed, Congress presumably did not foresee, in the heady days of 2001, that it would be more than five years late in reauthorizing the Elementary and Secondary Education Act.)  Whether they enhance, gut, or simply modify is usually in the eye of the beholder – and whether that beholder likes the policy change in question.  Romney himself says he would repeal “Obamacare” on “Day 1”, which in the absence of legislative majorities therefor would presumably include the issuance of waivers to states chafing at the Affordable Care Act’s provisions. Is the issue waivers, then? – or what is waived?

 

 

PS – a h/t to Jeff Jenkins of UVa for suggesting a post on this topic.

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The Miller Center Asserts Executive Privilege

This week’s back-and-forth between the House Oversight and Government Reform Committee and the Justice Department over the Operation Fast and Furious gun-tracking (sic) initiative serves as a useful hook for a new report from the good folks at the Miller Center at the University of Virginia. The Center has pulled together scholars in the field to provide an extensive historical overview on executive privilege – as most recently asserted by President Obama to block the provision of deliberative documents to the Committee investigation (see here for a June post thereon).

An online exhibition on the topic, with links to the new report and also to a related report of a 1998 task force on the separation of powers, can be accessed here.  Enjoy!

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The EPA: “Unambiguously Correct”

Not many people say nice things about the Environmental Protection Agency, so it seemed only charitable to pass along the unanimous ruling by the US Circuit Court of Appeals for the District of Columbia affirming EPA’s interpretation of the Clean Air Act. The text of the opinion, in Coalition for Responsible Regulation et al v EPA, is here.)  The ruling upholds EPA’s review and use of the scientific findings that carbon dioxide and other greenhouse gases harm the public health.

You may recall that back in 2006, Massachusetts (under Governor Mitt Romney) led 14 other states in suing the EPA, arguing that it had authority under the Clean Air Act to regulate tailpipe emissions – and should do so. (Massachusetts et al v EPA is here.) The Supreme Court agreed (in the usual snappy, or at least snappish, 5-4 decision).  It sent the case back to the EPA to determine if such emissions caused harm (in which case, it would have to regulate them, under the law.)

The EPA decided they did, in fact, cause harm. But in an intriguing codicil to the “administrative presidency” literature, the Bush administration refused to accept that finding, going so far as never to open an email attachment containing the report. Thus the report was never final, and the status quo ante remained in place until the Obama administration took over.

Obama eagerly opened the email and, given Congress’s failure to reach agreement on legislation in this area, EPA’s efforts have been the only game in town, albeit suspended by this and other suits. The usual suspects hailed and denounced the ruling, but keep in mind the key question was not whether more regulation was a good idea (though under the current administration “more” will presumably be the upshot), but on “how science works”: on whether agencies can use their technical expertise to make decisions and on the level of judicial deference those decisions engender.  In that sense it is a very non-”activist” ruling.

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SCOTUS Endorses Executive Discretion

Just a quick addendum to my post trying to disconnect the president’s recent administrative directive regarding immigration from broader and more dubious assertions of executive unlateralism. The Court’s decision on the Arizona immigration law SB 1070 upheld the notion that federal authorities may and even must make discretionary decisions about who, within the broad class of potentially deportable aliens, should actually be deported.

In the majority opinion, Justice Anthony Kennedy noted that:

“Congress has specified which aliens may [emph. added] be removed from the United States and the procedures for doing so…  A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…. Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices thatbear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.”

 

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Administrative Politics

While everyone else is busy rebutting Jacqueline Stevens, I wanted to mention a different piece in the NYT’s Sunday Review: Ross Douhat’s take on “All the President’s Privileges.”  Douhat’s basic take is that political partisans switch their views on executive power depending on the party of the executive in question. Thus, Democrats who thought George W. Bush was acting unconstitutionally now think Barack Obama’s assertion of the same powers is just dandy.

The general point is quite true, if not quite new; sixty years ago Justice Robert Jackson, in his famous 1952 Youngstown Steel concurrence, lamented how often even judges, “no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.”

I have spoken and written (including on this blog, e.g. here) about the ways in which Obama has become quite comfortable with utilizing unilateral authorities that as a candidate he was at best ambivalent about.

Two and a half quibbles, though. First, it is hard to argue that the president’s recent administrative directive shifting enforcement priorities within the Department of Homeland Security is a close parallel to the examples Douhat is (rightly) more concerned about, such as the targeted killings of American citizens by drone strike. (Or even the two-faced approach of bragging about the effectiveness of, while denying the existence of, said drones.)  The executive privilege assertion, as I noted here, is very much in keeping with claims by a variety of past incumbents (and recent jurisprudence as well.)  And the “administrative presidency” literature centers on ways presidents have sought to mold statutory implementation along their preferred lines; Elena Kagan’s mini-epic “Presidential Administration” describes how the last Democratic president did just this. If it is true that presidents’ reading of their mandate to faithfully execute the law has a definition of fidelity drawn from “Mad Men,” there is nonetheless clear discretion delegated to presidents in their enforcement of statute.

And the Obama administration has in fact more broadly at least tried to justify its assertions of authority as grounded in law.  (Sometimes, the law of war; often, the Authorization for the Use of Military Force passed just after the September 11 attacks.)  While this has not always been convincing, a fair reading must point out that it has also meant, at times, not utilizing unilateral authority. For example, Obama’s supposed embrace of the Guantanamo Bay prison facility springs from his compliance with repeated statutory demands making that closure nearly impossible in practical terms. Could he have claimed that these statutes infringed on his authority as commander-in-chief, ignored them, moved the detainees on-shore, and closed the prison?  Such a sequence would have been consistent with the Bush administration’s broadest view of the unitary executive. (But it would probably not have changed the utilization of military tribunals; they just would have taken place somewhere else.)

Further, time matters. A page of history, as Oliver Wendell Holmes said, is worth a volume of logic. And presidents come into office facing a different institutional environment than their predecessors, one shaped by successive precedential actions. Obama, for instance, in searching for guidance in defining “hostilities” within the War Powers Resolution, found a variety of cases in the Reagan (e.g., in the Persian Gulf) and Clinton (in Kosovo) administrations that legal advisers like Harold Koh were bound to take seriously.  If Obama chose that history over the logical definition of “hostilities,” then, he was not necessarily being hypocritical – just presidential.

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