American GovernmentMr. Bekemeyer

The Federal Bureaucracy and Congress

Essential question: Does Congress provide an adequate check on the executive branch? An excessive check?

From “Department of Evil: 'All Of You Must Die'” (Source: The Onion)WASHINGTON, DC—In the latest in a long series of ominous public pronouncements, the Department of Evil released a statement Monday demanding that all residents of the United States must die.

"Yes, all must die," Dread Secretary of Evil Hammond S. Reynolds said during a press conference in Room 1228 of Washington's Robert C. Weaver Federal Building. "There shall soon come an accounting in which all will fall before the Grim Reaper as wheat in winter, as lambs under the knife. Soon all necks will feel the steely bite of our soul- thirsting axe, wielded by the unforgiving iron hand of the Department of Evil. Thus spake I, Dread Secretary Reynolds."

The dread secretary then took questions from the assembled reporters.

Although the Department of Evil has not yet announced the exact timetable for the death of all, it recommends citizens make their peace with doomed relatives and spouses immediately, as the hour of their ending draws ever nigh and will be upon them as soon as the necessary funding has been authorized by the House Appropriations Committee.

"This budget approval is merely a pitiful, niggling formality, for soon we'll be free to swarm across the land draining the life-pus out of all you quivering mortal worms," Reynolds said. "Doubt us not: Come the wintertide, you all shall die, and die you will. Sorry, I meant 'must.' Die you must!"

Originally established by an act of Congress in 1953 and granted broader powers and funding in 1986 under the second Reagan administration, the Department of Evil has been an occasional source of controversy. Its 1993 And The Streets Shall Run Red With The Blood Of The Innocent initiative was highly criticized at the time by moderates, who thought the department's agenda overly harsh.

In 2004, an ambitious plan to seed the clouds with blood and then rain excruciation down upon the thrice-damned didn't even make it past a Senate budget committee, which criticized the plan as poorly conceived.

And last year, the department received a stinging blow after Congress voted to allocate only one-third of the money requested to swell the ranks of its deranged, barbarous demon cavalry.

Despite those recent setbacks, a DOE spokesbeast said that the dread secretary remains confident that his department will prevail in the end.

To publicize their current mission, the Department of Evil distributed to media outlets a ring-bound portfolio titled "You Shall All Perish Screaming 2007," which provides estimates and logistics detailing how everyone will die, a line-by-line budget breakdown, and an addendum apologizing that the document was not printed in human blood. The full text is available at evil.gov.

The "All Must Die" initiative, the highest-profile program proposed by the DOE in recent memory, came under almost immediate scrutiny from politicians on both sides of the aisle.

"I don't understand why we still even have a Department of Evil," Sen. Sherrod Brown (D-OH) said. "It's a Cold War holdover, an artifact of the '50s that has outlived its usefulness. Mr. Reynolds has done as good a job as any recent dread secretary, but as afraid as I am of him, I believe his talents would be better served at Education or Agriculture."

"Once again, Mr. Reynolds wants to throw money at the everyone-dies issue — in this case, $11.43 billion," Sen. Arlen Specter (R-PA) said. "This is a waste of taxpayer dollars to do work best left to the private sector. It's high time for the DOE to be absorbed into Homeland Security, where it belongs."

At the press conference, Reynolds refused to disclose his reasons for proposing that all must die.

"Question not the dread secretary, insects!" said Reynolds, rearing back his mighty head and bellowing as a powerful crescendo emanated from the department's enormous Gothic pipe organ. "First, the bandwagoners in Congress seek to derail our plans or committee them to death. Now, the mindless blood-bags who populate this teeming nation wish to know why they must perish. I will respond with the same answer we have always given: Despair, groveling vermin, and may your deaf, blind God forsake the United States of America! We're done here."

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#1 Congress Creates and Organizes the Federal Bureaucracy

Excerpts from Article II, Section 1 of the ConstitutionThe President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices. . . . [The President shall] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

From “Bush Signs Homeland Security Bill” (Source: CNN, November 25, 2002)Citing "the dangers of a new era," President Bush signed into law legislation [sent to him from Congress] Monday creating a Cabinet-level Department of Homeland Security – a move that sets into motion the largest reorganization of the federal government in more than half a century.

Bush named Tom Ridge, who has been director of the White House Office of Homeland Security for nearly a year, as his nominee to lead the vast, new department.

"He's the right man for this new and great responsibility," Bush said of Ridge, during the signing ceremony in the East Room of the White House. . . .

Ridge will have the challenge of demonstrating he can use his new authority to put together an 170,000-employee agency to better protect the United States from terrorist attacks and make the American public feel secure.

The department is a direct result of the September 11, 2001 terrorist attacks, which exposed security lapses and intelligence failures, and led to calls for sweeping changes to the nation's defense, intelligence and law enforcement sectors.

The legislation [passed by Congress and signed by Bush] calls for the $40 billion department to be up and running within a year. . . .

Critics of the new Homeland Security Department say it creates overlap, [absorbing] 22 existing agencies such as the Immigration and Naturalization Service, Coast Guard and the Border Patrol – agencies that critics believe should simply be strengthened, [not moved into an entirely new department.]

Excerpts from the Homeland Security Act (2002)SEC. 101. EXECUTIVE DEPARTMENT; MISSION. (a) Establishment.--There is established a Department of Homeland Security, as an executive department of the United States . . . . (b) Mission.-- (1) In general.--The primary mission of the Department is to-- (A) prevent terrorist attacks within the United States; (B) reduce the vulnerability of the United States to terrorism; (C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States; (D) carry out all functions of entities transferred

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to the Department, including by acting as a focal point regarding natural and manmade crises and emergency planning. . . (G) monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking.

SEC. 102. SECRETARY; FUNCTIONS. (a) Secretary.-- (1) In general.--There is a Secretary of Homeland Security, appointed by the President, by and with the advice and consent of the Senate. (2) Head of department.—The Secretary is the head of the Department and shall have direction, authority, and control over it.

SEC. 103. OTHER OFFICERS. (a) Deputy Secretary; Under Secretaries.--There are the following officers, appointed by the President, by and with the advice and consent of the Senate: (1) A Deputy Secretary of Homeland Security, who shall be the Secretary's first assistant for purposes of subchapter III of chapter 33 of title 5, United States Code. (2) An Under Secretary for Information Analysis and Infrastructure Protection

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Movement of Federal Agencies into Department of Homeland Security (Source: Kernell, The Logic of American Politics)Department moved from New Department of Homeland Security

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From “Amendment Would Strip A Top Official of His Powers” (Source: The New York Times, October 6, 2000)Tucked away in the fine print of the roughly $79 billion agriculture spending bill is a provision that removes the ability of [James R.] Lyons, the undersecretary of agriculture for natural resources and the environment, to do his job. Under the provision, he would be stripped of authority to supervise the Forest Service and the Natural Resources Conservation Service, two of the largest parts of the Agriculture Department.

Instead, employees in those two agencies would report directly to the secretary of agriculture.

Put another way, the day before the [appropriations bill] would go into effect, the undersecretary would be supervising more than 50,000 people. The following day he would be the boss of nine, just those who are part of his inner circle. And, in a clear sign that the restrictions are aimed squarely at Mr. Lyons, the limitations would last only until Jan. 20, 2001, the date he said he will leave office to take a teaching job at Yale.

#2 Congress Delegates Power to the Federal Bureaucracy

Excerpts from the Occupational Safety and Health Act (1970)Section 1: To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act. . . [and] by providing for research, information, education, and training in the field of occupational safety and health.

Section 6: (a) The Secretary [of Labor] shall. . . [establish and publicize] . . occupational safety [and] health [regulations] . . . which assure the greatest protection of the safety or health of the . . . employees [in private businesses].

(1) Whenever the Secretary [of Labor]. . . determines that a rule should be promulgated in order to serve the objectives of this Act, (2) the Secretary . . . shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments. . . . (3) On or before the last day of the period provided for the submission of written data or comments . . . , any interested person may file with the Secretary written objections to the proposed rule, stating the [reasons for their objections] and requesting a public hearing on such objections. Within thirty days after the last day for filing such objections, the Secretary shall publish in the Federal Register a notice specifying the [dates for a] hearing [to discuss the proposed rules].

(4) Within sixty days after the . . . completion of any hearing . . . , the Secretary shall issue a rule promulgating, modifying, or revoking an occupational safety or health standard or make a determination that a rule should not be issued. . . .

[The law also established the Occupational Safety and Health Administration (OSHA), to be headed by an Assistant Secretary of Labor. OSHA would be responsible for enforcing the law by enacting regulations and policing businesses to ensure compliance.]

Excerpts from OSHA Regulations in the Code of Federal Regulations (Source: OSHA website)1910.26(a)(1)(iii): The spacing of rungs [on ladders] or steps shall be on 12-inch centers.

1910.26(a)(1)(v): Rungs and steps shall be corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize the possibility of slipping.

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1910.37(a)(1): Exit routes must be kept free of explosive or highly flammable furnishings or other decorations.

1910.37(b)(1): Each exit route must be adequately lighted so that an employee with normal vision can see along the exit route.

1910.133(a)(1): The employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.

1910.138(a): Employers shall select and require employees to use appropriate hand protection when employees' hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.

1910.23(a)(1): Every stairway floor opening shall be guarded by a standard railing constructed in accordance with paragraph (e) of this section. The railing shall be provided on all exposed sides (except at entrance to stairway). For infrequently used stairways where traffic across the opening prevents the use of fixed standard railing (as when located in aisle spaces, etc.), the guard shall consist of a hinged floor opening cover of standard strength and construction and removable standard railings on all exposed sides (except at entrance to stairway).

1910.39(a) An employer must have a fire prevention plan. . . . 1910.39(b) A fire prevention plan must be in writing, be kept in the workplace, and be made available to employees for review. However, an employer with 10 or fewer employees may communicate the plan orally to employees. 1910.39(c) A fire prevention plan must include: 1910.39(c)(1) A list of all major fire hazards, proper handling and storage procedures for hazardous materials, potential ignition sources and their control, and the type of fire protection equipment necessary to control each major hazard; 1910.39(c)(2) Procedures to control accumulations of flammable and combustible waste materials; 1910.39(c)(3) Procedures for regular maintenance of safeguards installed on heat-producing equipment to prevent the accidental ignition of combustible materials; 1910.39(c)(4) The name or job title of employees responsible for maintaining equipment to prevent or control sources of ignition or fires.

From the Consumer Product Safety Act ( 1972)SEC. 2 (b) The purposes of this Act are— (1) to protect the public against unreasonable risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries. . . .

SEC. 4 (a). An independent regulatory commission is hereby established, to be known as the Consumer Product Safety Commission, consisting of five Commissioners who shall be appointed by the President, by and with the advice and consent of the Senate. . . .

SEC. 7 (a) The Commission may promulgate consumer product safety standards. A consumer product safety standard shall consist of one or more of any of the following types of requirements:

(1) Requirements expressed in terms of performance requirements.(2) Requirements that a consumer product be marked with or accompanied by clear and adequate warnings or instructions. . . .

Any requirement of such a standard shall be reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product.

SEC. 8. Whenever the Commission finds that— (1) a consumer product is being, or will be, distributed in commerce and such consumer product presents an unreasonable risk of injury; and (2) no feasible consumer product safety standard under this Act would adequately protect the public from the unreasonable risk of injury

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associated with such product, the Commission may. . . promulgate a rule declaring such product a banned hazardous product. . . .

Excerpts from Consumer Product Safety Commission Regulations (Source: Government Printing Office)1303. The Consumer Product Safety Commission declares that paint and similar surface-coating materials for consumer use that contain lead or lead compounds and in which the lead content (calculated as lead metal) is in excess of 0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film (which paint and similar surface-coating materials are referred to hereafter as ``lead-containing paint'') are banned hazardous products. . . . The Commission finds that the risk of injury which this regulation is designed to eliminate or reduce is lead poisoning in children. The adverse effects of this poisoning in children can cause a range of disorders such as hyperactivity, slowed learning ability, withdrawal, blindness, and even death.

1306. The purpose of this rule is to prohibit the sale of lawn darts, which have been found to present an unreasonable risk of skull puncture injuries to children. Any lawn dart is a banned hazardous product.

1511. Pacifiers shall be labeled with the statement: ‘‘Warning— Do Not Tie Pacifier Around Child’s Neck as it Presents a Strangulation Danger.’’

1513.3. (a) Guardrails. (1) Any bunk bed shall provide at least two guardrails, at least one on each side of the bed, for each bed having the underside of its foundation more than 30 inches (760 mm) from the floor. (2) One guardrail shall be continuous between each of the bed’s end structures. ‘‘Continuous’’ means that any gap between the guardrail and end structure shall not exceed 0.22 inches (5.6 mm) (so as to not cause a finger entrapment hazard for a child). (3) The other guardrail may terminate before reaching the bed’s end structures, providing there is no more than 15 inches (380 mm) between either end of the guardrail and the nearest bed end structure.

From the Food and Drug Administration’s “Proposed Cigarette Product Warning Labels” web page (Source: FDA website)The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) requires that cigarette packages and advertisements have larger and more visible graphic health warnings.

[Pursuant to this law,] FDA issued a proposed rule. . . proposing to modify the required warnings that appear on cigarette packages and in cigarette advertisements. These new required warnings would consist of nine new textual warning statements accompanied by color graphics depicting the negative health consequences of smoking.

Timeline for Final Regulations: The Tobacco Control Act requires FDA to issue final regulations requiring these color graphics by June 22, 2011.

Public Comment: FDA is seeking public comment on the proposed rule from Friday, November 12, 2010 through Tuesday, January 11, 2011. To submit an official comment during this time period. . . .

Sample of proposed warning labels:

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Excerpts from the Administrative Procedure Act of 1941 (Source: Cornell Legal Information Institute)Each [federal] agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public. . . . rules of general applicability [also known as “regulations”], and statements of general policy . . . formulated and adopted by the agency. . . .

[When an agency is considering a new rule or rules,] general notice of proposed rule [or rules]. . . shall be published in the Federal Register. . . . The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed [i.e. the law that justifies the regulation]….

[Before issuing a final rule,] the agency shall give all interested parties opportunity for. . . the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit. [This is known as the comment period.]

The required publication or service of a substantive rule shall be made not less than 30 days before its effective date. . . . Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

[All rules adopted by an agency are to be published in the Federal Register.]

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Number of Pages in the Federal Register, 1940-2008 (Source: Kernell et al., The Logic of American Politics)

Federal Spending as Percent of GNP, 1799-1997 (Source: House of Representatives Joint Economic Committee Study)

Number of Non-Military Persons Employed Full-Time By the Federal Government (Source: Kernell, et al., The Logic of American Politics)

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From “Workplace Health Initiative Rejected” (Source: The Washington Post, March 7, 2001)[Only three months after the end of President Bill Clinton’s tenure in office,] the [Republican-controlled] Senate voted yesterday to kill a far-reaching . . . rule [passed by the Department of Labor under Clinton] and aimed at preventing workplace injuries. . . . Voting 56 to 44, the Senate approved a proposal to [kill] the ergonomics rule [see figure 1], which could force employers to redesign workplaces and compensate workers for repetitive-motion injuries. The proposal now goes to the House, where Republican leaders plan a vote later this week and predict the measure will be approved….

Secretary [of Labor] Elaine L. Chao pledged other action to combat ergonomic injuries, which an estimated 1.8 million American workers suffer from. She said she will seek a more “comprehensive approach to ergonomics, which may include new rulemaking" that will "provide employers with achievable measures that protect their employees before injuries occur. . . .”

The ergonomics regulation, which was issued last November [under President Clinton] and would have taken effect in October, would cover 102 million workers at more than 6 million work sites, according to the Occupational Safety and Health Administration. . . .

The rule would require employers to provide workers with information about possible [ergonomic] injuries and risk factors, review complaints, redesign workplaces if they were found to cause problems, ensure access to medical care, and provide compensation for disabilities. In some cases, employers would have to pay disabled workers more, and for longer periods of time, than would be the case under state workers' compensation laws.

To kill the rule, Republicans employed [the Congressional Review Act,] passed in 1996, that gives Congress a swift way to overturn federal regulations it opposes. The Congressional Review Act, never used until now to overturn a major regulation, provides for action [on federal regulations opposed by a majority of Congress] without hearings, committee approval or amendments and limits debate to 10 hours. [The President must sign the bill, as Republican President George W. Bush did.]

[The 1996 law was an attempt by Congress to reassert its power to overturn specific regulations. An earlier tool was the legislative veto. Before 1983, Congress often inserted language in bills allowing it to kill federal regulations by concurrent resolution, a majority vote of both chambers that does not seek the President’s signature. This practice of the “legislative veto” was declared unconstitutional by the Supreme Court in 1983. To override a regulation, Congress must now get the President’s signature. However, federal agencies regularly make informal arrangements regarding spending and regulations with Congressional committees.]

GOP Sharpens Little-Used 'Legislative Veto' Tool (Source: USA Today, September 18, 2011)Republican members of Congress looking to kill what they call "job-killing regulations" already have a ready-made tool at their disposal — but Congress has used it to overturn just one regulation in 15 years.

Figure 1. Ergonomic injuries are related to the interaction of workers and workplace technology. They include carpel tunnel syndrome, strains, sprains and back injuries.

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So some congressional Republicans are looking to revive the often-ignored law known as the Congressional Review Act. . . . [T]he act could help fast-track efforts to kill Obama administration regulations by clearing procedural hurdles in the Senate. Just 30 senators can force a vote [to] send regulations back to the president under the CRA. [The measure would have to pass the House as well.]

It also requires Congress to move quickly once a regulation is finalized, so old regulations can't be repealed. . . .

Sen. John Barrasso, R-Wyo., is leading [an] effort [in the Senate to overturn Obama regulations]. He acknowledges there's a good chance President Obama will simply veto attempts to overturn his administration's rules, but he says Republicans can still use the tool to shape the debate.

"Any way we can get it to the president's desk," Barrasso said. "He talks a pretty good game. His rhetoric is good, but the reality is he's coming out with hundreds of new regulations every month. . . ."

[T]he Congressional Review Act was enacted [by a Republican Congress] as part of a 1996 small-business bill. Since then, Congress has used it to overturn only one regulation: a workplace ergonomics rule by the Occupational Safety and Health Administration in 2001. President George W. Bush had just been sworn in, allowing him to sign a bill striking down a regulation developed under his predecessor.

Before and since, there have been 74 attempts to invoke the Congressional Review Act. Few get a hearing, and only three have passed even one chamber.

One reason Congress doesn't vote down more regulations is practical: Like any bill, the president could veto it — especially given his White House has already approved the regulation. And the sheer number of regulations makes it difficult for Congress to keep up. "Congress is a big, lumbering beast. It's difficult to raise from its torpor," said Nicholas Bagley, a University of Michigan law professor.

House Majority Leader Eric Cantor, R-Va., has set out a schedule for votes on 10 regulations he wants to repeal, but none uses the CRA. One reason: The act applies only to final rules published in the Federal Register. "Rather than waiting for the CRA to apply, we are moving forward to remove uncertainty and stop these harmful regulations that threaten businesses and job creators throughout the country [before they take effect]," Cantor spokeswoman Laena Fallon said.

Sunstein said the rare use of the measure is a "tribute" to how hard agencies work to make good regulations. It also serves to make agencies sensitive to congressional concerns as they draw up rules.

#3 Congress Appropriates Money to Be Spent by the Federal Bureaucracy

From Article I, Section 9 of the U.S. ConstitutionNo Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.

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Screenshot from the U.S. House Committee Appropriations Website

Screenshot from the U.S. Senate Committee on Appropriations Website

From “Vote Spells Trouble For National School Test” (Source: USA Today, February 9, 1998)WASHINGTON – The Clinton administration says schools may never get the chance to volunteer for national reading and math tests now that the House has voted to bar [spending by the Department of Education on developing the tests] unless Congress authorizes it.

Marshall "Mike" Smith, acting deputy education secretary, said at a national symposium on education standards Friday that he "now thinks the tests will never be given." Later he denied that the administration was conceding defeat on the issue but said "it's going to be difficult to get it authorized."

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The House, resuming one of last year's most contentious fights, voted 242-174 on Thursday to guarantee that Congress has the final say on whether federal money is spent on national tests in reading for fourth-graders and in math for eighth-graders.

Impoundment and the Impoundment Control Act of 1974 (Source: Wikipedia)Impoundment is the [decision by] a President of the United States not to spend money that has been appropriated by the U.S. Congress. . . . The power was available to all presidents up to and including Richard Nixon, and was regarded as a power inherent to the office. The Congressional Budget and Impoundment Control Act of 1974 was passed in response to perceived abuse of the power under President Nixon. Title X of the act. [It] essentially removed the power.

From “Senate Democrats Announce Earmark Moratorium” (Source: The Wall Street Journal, February 1, 2011)Senate Democrats on Tuesday announced a two-year moratorium on earmarks, a type of funding for lawmakers' pet projects, in spending bills.

The policy puts Senate Democrats in line with bans already announced by Senate Republicans and House lawmakers of both parties, all of whom said there was no place for earmark spending in the current environment. In his State of the Union address last week, President Barack Obama said he would veto legislation that included earmarks. . . .

The moratorium will apply in the current fiscal year, which expires on Sept. 30, and in fiscal year 2012, which begins the following day.

From “Earmark Ban Exposes Rifts Within Both Parties” (Source: The New York Times, November 16, 2010)The renewed push against earmarks highlighted a potential conflict between the calls to eliminate the spending items and demands by many [Republican] supporters for greater fidelity to the Constitution. It is the Constitution, after all, that put Congress in charge of deciding how to spend the taxpayers’ money. In pledging not to let individual lawmakers designate federal money for local purposes, the anti-earmark [group] is in effect [giving] more power to the executive branch over how taxpayer dollars are spent. . . .

“If Congress does not direct any spending,” said Senator Kay Bailey Hutchison, Republican of Texas, who supported the earmark ban, “the president will have 100 percent of the discretion in all federal programs. . . .”

Both supporters and skeptics of an earmark ban say that it would empower the executive branch. . . . While earmarks amount to a trickle in the government’s flood of red ink — slightly more than three-tenths of 1 percent of federal spending — most of that money would still be expended by federal agencies in the absence of earmarks but without specific directions from Congress. . . .

Supporters of earmarks, like the Senate majority leader, Harry Reid of Nevada, were quick to invoke the Constitutional defense on Tuesday. “I believe personally we have a constitutional obligation. . . to do congressionally directed spending,” Mr. Reid said. “I think I have an obligation to the people of Nevada to do what is important to Nevada, not what is important to some bureaucrat down here with green eyeshades. . . .”

Past earmarks that have drawn criticism have included money for the National Cowgirl Museum and Hall of Fame and for pig odor research.

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#4 Congressional Committees Investigate the Federal Bureaucracy

Excerpt from “Congressional Oversight Manual” (Source: Congressional Research Service)Throughout its history, Congress has engaged in oversight of the executive branch — the review, monitoring, and supervision of the implementation of public policy. The first several Congresses inaugurated such important oversight techniques as special investigations, reporting requirements, resolutions of inquiry, and use of the appropriations process to review executive activity. Contemporary developments, moreover, have increased the legislature’s capacity and capabilities to check on and check the Executive. Public laws and congressional rules have measurably enhanced Congress’s implied power under the Constitution to conduct oversight.

Despite its lengthy heritage, oversight was not given explicit recognition in public law until enactment of the Legislative Reorganization Act of 1946. That act required House and Senate standing committees to exercise “continuous watchfulness” over programs and agencies within their jurisdiction.

Since the late 1960s. . . Congress has shown increasing interest in oversight for several major reasons. These include the expansion in number and complexity of federal programs and agencies; increase in expenditures and personnel, including contract employees; the rise of the budget deficit; and the frequency of divided government, with Congress and the White House controlled by different parties. Major partisan disagreements over priorities and processes also heighten conflict between the legislature and the executive.

Congressional oversight of the Executive is designed to fulfill a number of purposes:

Ensure Executive Compliance with Legislative Intent: Congress, of necessity, must delegate discretionary authority to federal administrators. To make certain that these officers faithfully execute laws according to the intent of Congress, committees and Members can review the actions taken and regulations formulated by departments and agencies.

Prevent Executive Encroachment on Legislative Prerogatives and Powers: Beginning in the late 1960s, many commentators, public policy analysts, and legislators argued that Presidents and executive officials overstepped their authority in various areas such as . . . war powers. . . . Increased oversight — as part of the checks and balances system — was called for to [address] what many in the public and Congress saw to be an executive [seizure] of legislative [powers].

From the website of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina (archived)On September 15, 2005, the House of Representatives approved H. Res. 437, which created the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina. Speaker of the House Dennis Hastert named Rep. Tom Davis (R-VA), the Chairman of the House Government Reform Committee, to serve as the Chairman of the Select Committee.

According to the legislation creating it, the Select Committee is charged with conducting “a full and complete investigation and study and to report its findings to the House not later than February 15, 2006, regarding-- (1) the development, coordination, and execution by local, State, and Federal authorities of emergency response plans and other activities in preparation for Hurricane Katrina; and (2) the local, State, and Federal government response to Hurricane Katrina.”

The Select Committee will cease to exist 30 days after filing the report.

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From “Brown Defends FEMA Response” (Source: Fox News, September 28, 2005)Drawing fire from members of Congress over his efforts to coordinate the response and prepare adequately for Hurricane Katrina, [Federal Emergency Management head] Michael Brown told a House committee Tuesday that. . . the Federal Emergency Management Agency's response to the disaster [was effective], saying that it did what it could and functioned properly internally by beginning to meet mid-week before the hurricane and placing vital personnel and equipment out of harm's way before the storm. . . .

Brown's appearance marked the second hearing . . . by the House Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina. . . .

"I have overseen over 150 presidentially declared disasters. I know what I am doing. And I think I do a pretty darn good job of it," Brown said.

From “GOP's Darrell Issa Plans Hundreds of Oversight Hearings” (Source: CBS News, November 9, 2010)[Republican] California Rep. Darrell Issa plans to greatly expand the scope of federal oversight upon his likely election to chair the oversight committee in the new Congress, he told Politico in an interview. "I want seven hearings a week, times 40 weeks," Issa said.

Issa's election to chair the House Committee on Oversight and Government Reform would herald a significant increase in the committee's activity, and not just from the past two years, [when the Democratic Party-controlled committee went easy on the President]. California Rep. Henry Waxman, the committee's Democratic chair during the final two years of the Bush administration, held 203 hearings over the course of two years. With a goal of about 280 hearings each year, Issa hopes to more than double that.

Politico reports that Issa is looking to . . . investigate controversial Obama-era initiatives like the federal stimulus package and possibly health care reform, as well as the $700 billion bank bailout passed under President Bush. . . .

Issa has said that his investigations will not necessarily be partisan – he's indicated that he might investigate the George W. Bush presidency as well as the current administration – but Democrats anticipate an aggressive posture from the California Republican when it comes to oversight of the Obama administration. . . .

From “Facing Congress, Clinton Defends Her Actions Before and After Libya Attack” (Source: The New York Times, January 23, 2013)In one of her final appearances as secretary of state, Hillary Rodham Clinton on Wednesday vigorously defended her handling of last September’s attack on the United States diplomatic compound in Benghazi, Libya, which killed four Americans and prompted a scathing review of State Department procedures. [The hearing was held by the Senate Foreign Relations Committee, which is charged with overseeing the Department of State, which Clinton heads.]

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“As I have said many times, I take responsibility, and nobody is more committed to getting this right,” she said, reading a statement during a day of testimony before Senate and House committees. “I am determined to leave the State Department and our country safer, stronger and more secure.”

But Mrs. Clinton, whose appearance before Congress had been postponed since December because of illness, quickly departed from the script. She jousted with Republican lawmakers over who deserved blame for the security problems at the compound, and choked up as she described being at Joint Base Andrews outside Washington when the bodies of the Americans killed in the assault arrived from Libya.

“I stood next to President Obama as the Marines carried those flag-draped caskets off the plane at Andrews,” she said. “I put my arms around the mothers and fathers, sisters and brothers, sons and daughters.”

From “Obama Executive Privilege Claim 'Like Setting Off A Nuclear Bomb'” (Source: The Huffington Post, June 20, 2012)Note: According to Wikipedia, executive privilege is “the power claimed by the President and other members of the executive branch to resist certain [requests for executive branch documents or access to executive branch personnel] by the legislative and judicial branches of government.

President Barack Obama, invoking executive privilege. . . , blocked a House Republican subpoena of Justice Department [e-mails and meeting notes] over a botched gun trafficking investigation [by the Department of Justice]. . . .

The move by Obama shields. . . a [set] of internal Justice Department communications regarding [its] Operation Fast and Furious from disclosure to the House Oversight and Government Reform Committee.

The committee voted Wednesday along party lines to charge Attorney General Eric Holder with contempt for failing to produce the documents. In a letter to Obama on Tuesday, Holder said the subpoenaed documents involve internal Justice Department deliberations that were protected from disclosure.

House Speaker John Boehner said the full House would vote on the contempt resolution next week unless Holder “reevaluates his choice and supplies the promised documents. . . .”

[Congress has the authority to hold a person in contempt if the person's conduct or action obstructs the proceedings of Congress or, more usually, an inquiry by a committee of Congress.

Contempt of Congress is defined in a federal law enacted in 1938, which states that any person who is summoned before Congress who "willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry" shall be guilty of a misdemeanor and subject to a maximum $1,000 fine and 12 month imprisonment. When Congress votes to indict an individual for contempt of Congress, the U.S. Department of Justice – headed by the Attorney General – must follow through with a prosecution in court. Attorney General Eric Holder is unlikely to pursue the contempt charge, seeing as it would mean prosecuting himself.]

A contempt resolution by the House will do nothing legally to force the release of the sought-after documents and poses only a symbolic threat to Holder. But it would represent a potent political slap by Republicans against the Obama administration and will ratchet up public pressure on the White House to reach a compromise, experts said.

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#5 Congress Requires Mandatory Reports from the Federal Bureaucracy

From “Reporting on a Practice That's Ripe for Reform” (Source: The Washington Post, February 11, 1997)It usually starts with a great idea in a congressional subcommittee – like the time someone wanted the Agriculture Department to find out how foreigners were ripping off America's apricot farmers.

Unfortunately, USDA apparently had other things to do that – gasp – it thought were more important. Congress asked for the "Apricots" report more than 10 years ago, and is still waiting.

Look on page 46 of the 1996 edition of "Reports to Be Made to Congress" to find a description of this dereliction. The long title is "Effect of apricot imports on the domestic apricot industry, and extent of subsidies in countries exporting the apricots." It is due "upon completion."

"Reports" is one of those must-have government publications – showing that Congress is really attentive to the public's business. Coming up: the Defense Department's "Gender Neutral Occupational Performance Standards." Already in the can: triennial reports on "Tule Elk Herds in California."

And there's much, much more. Health and Human Services is supposed to file on "Health Consequences of Using Alcoholic Beverages" (beyond drunkenness, one presumes) every three years; and the Treasury Department reports annually on the "Reforestation Trust Fund…."

Congress demands the reports on the laws it passes, sometimes as a mechanism to check that laws are having the intended effect, sometimes to drive a reluctant bureaucracy to comply with laws it would otherwise ignore. . . .

Some reports appear to have been ordered for no reason. . . . And some are easy. The Justice Department must report on "Information on Justice Statistics," but "no time specified." The Interior Department must produce "Colorado River Floodway Maps" "as soon as practicable," and "Recommendations for designating additional lands as wilderness in Alaska" "from time to time."

Don't hold your breath.

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Contents Page of “Reports to Be Made to Congress” (Source: The Clerk of the U.S. House of Representatives)Note the number of pages in this publication!

From “Congress Cracks Down On Overdue CIA Reports” (Source: The Washington Post, December 1, 2002)Congress has threatened to reduce by one-third the funds that are used to run the office of Director of Central Intelligence George J. Tenet if the intelligence community fails to file dozens of overdue reports required by law within the next few months.

Calling the community's record "dismal," the House Permanent Select Committee on Intelligence, which wrote the legislation included in the fiscal 2003 intelligence authorization bill signed last week by President Bush, reported that 51 of 84 reports due by May 1, 2002, were not submitted. Eight were sent as incomplete interim reports and 18 others were provided after they were due, it said.

"In sum," the committee said in its report, "of the 84 reports required, seven were submitted by the deadline, for an overall record of 8 percent compliance."

The documents being sought cover a wide range of subjects including the priority requirements set by the president for U.S. intelligence and the activities of the U.S. intelligence community to satisfy them, an annual report on the protection of the identities of covert agents, covert leases for the community to use buildings and properties and CIA cooperation with federal law enforcement agencies.

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They also cover activities of the FBI outside the United States, commercial activities carried on as cover by Pentagon intelligence agencies, safety and security of Russian nuclear facilities and forces, intelligence provided the United Nations, decisions not to prosecute violations of classified information procedures, and the hiring and retention of minority employees in the intelligence community.

#6 The Government Accountability Office (GAO) Conducts Independent Investigations of the Federal Bureaucracy

From the GAO WebsiteThe U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the "congressional watchdog," GAO investigates how the federal government spends taxpayer dollars. The head of GAO, the Comptroller General of the United States, is appointed to a 15-year term by the President [with Senate confirmation] from a slate of candidates Congress proposes.

Our Work is done at the request of congressional committees or subcommittees or is mandated by public laws or committee reports. We also undertake research under the authority of the Comptroller General. We support congressional oversight by

auditing [federal] agency operations to determine whether federal funds are being spent efficiently and effectively;

investigating allegations of illegal and improper activities; reporting on how well government programs and policies are meeting their objectives; issuing legal decisions and opinions, such as . . . reports on agency rules.

Year GAO was founded: 1921Staffing level: 3,141 employeesBudget : $538.6 million

GAO: Border Fence Lagging, Over Budget (Source: The Washington Times, October 24, 2010)The Department of Homeland Security has "largely defined but has not adequately implemented" controls over a "virtual fence" along the U.S.-Mexico border promised for completion in 2009 and, as a result, the multibillion-dollar project is behind schedule and over budget, a government report says.

The Government Accountability Office (GAO), in a 63-page report released last week, said the department had failed to effectively manage the project, known as the Secure Border Initiative Network (SBInet) . . . resulting in costly rework. . . .

SBInet was planned as a virtual fence along the 2,000-mile Southwest border to protect the U.S. from terrorists, violent drug smugglers and a flood of illegal immigrants. It uses surveillance systems to provide U.S. Border Patrol command centers with the imagery, related tools and information needed to detect breaches and make agent deployment decisions.

Since February 2007, the GAO has been telling Congress and the Homeland Security Department that SBInet . . . lacked realistic measures of cost, timing and benefits. . . .

In September 2009, GAO reported to Congress that the virtual fence scheduled for completion in 2009 would not be ready until at least 2016 — if it went forward at all.

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#7 The Senate Confirms Presidential Appointees

Excerpts from Article II of the Constitution[The President shall] nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Types of Federal Employees (Source: Magleby and Light, Government By the People)

From “Senate Confirmation FAQ” (Source: Slate.com, Jan. 16, 2001)When did the process of confirming a presidential appointee go from nice-nice to knife fight?

While the vast majority of people requiring Senate confirmation get it, ours is not the only time that the system has been less than civil. James Madison had a contentious time with the Senate over some Cabinet and Supreme Court appointments, as did Andrew Jackson. During the 19th century, the Senate rejected 35 percent of Supreme Court nominations. Scholars cite a number of turning points leading to today's irritable process. Watergate ushered in far more ethics vetting with extreme scrutiny of possible conflicts of interest, particularly financial. The fact that Congress and the White House are now often of different parties has driven the Senate to play a larger role in shaping the executive branch. . . . In the last years of the Clinton administration, the "consent" part of the Senate confirmation process almost completely broke down--judicial and diplomatic appointees could barely get the Senate committees to schedule hearings on their nominations.

Besides voting down a nomination, how else can the Senate block it?

Through filibusters or the more common "hold." Filibusters are rarely used, but in 1995 Clinton's nomination of Dr. Henry Foster for surgeon general died due to a Republican filibuster. More common are the mysterious Senate holds. This process. . . allows any senator, for no given reason, to . . . put on hold a nomination by simply

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[threatening to filibuster]. It was originally a sort of courtesy accorded to senators who wanted a vote delayed briefly due to scheduling problems or who needed time to gather more information. In recent years it has turned into a method for permanent obstruction. Holds can be put on for purposes that have nothing to do with a nominee as a way of forcing the administration to accommodate a senator's wishes on another matter. In recent years there have been 30 or more holds at a given time on nominees for judicial, ambassadorial, and other posts.

From “Senate Mostly Blamed For Agency And Court Vacancies, But Obama Isn't Helping” (Source: NPR, March 8, 2013)Some workers may dream about how productive they'd be without a boss. But for thousands of federal employees, being without a boss is a reality. And productivity isn't necessarily the result.

Numerous federal agencies, large and small, are operating without permanent leadership because President Obama's nominees have been blocked by the Senate, or because no nominations have been made.

According to Pro Publioa, there were 68 executive-level vacant positions at the end of Obama's first term, more than at a similar point in the two previous administrations.

New York University professor Paul Light, who has studied the executive branch for decades, thinks much of the blame goes to Congress and what he calls a "Napoleonic approach to defeating the president and reducing big government."

Light argues that those who oppose new laws are required by the Constitution to repeal them. But he says that has all changed recently.

"If you don't like a law now, and you can't repeal it," Paul says, opponents work to "decapitate the agency and eviscerate its capacity to execute the law."

Lack of leadership can leave some federal agencies treading water on policy and personnel issues. Sometimes key decisions get put off. And if the president doesn't have his choices in place, it's a lost opportunity to effect policy.

Among the agencies operating without permanent leadership:

— The Bureau of Alcohol, Tobacco, Firearms and Explosives, which has not had a permanent administrator since 2006, the year Congress required that the director be confirmed by the Senate.

— The Centers for Medicare & Medicaid Services, which oversees those massive health care programs and hasn't had a director confirmed by the Senate in seven years. NPR's Julie Rovner tells Morning Edition that the agency also handles the Children's Health Insurance Program and now "a big chunk of the Affordable Care Act." She says in 2011, it handled about 21 percent of the federal budget, or $769 billion.

— The Consumer Financial Protection Bureau. President Obama named Richard Cordray director in a recess appointment in 2011, which is now being challenged in federal court. Cordray has been re-nominated by the president, and his confirmation hearing is set for Tuesday.

— The Federal Election Commission, which has commissioners held over on expired terms.

While Senate Republicans are responsible for most of the roadblocks before the president's nominees now, Democrats have pulled similar moves when it was a Republican president doing the nominating.

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From “In Landmark Vote, Senate Limits Use of the Filibuster” (Source: The New York Times, November 21, 2013)The Senate approved the most fundamental alteration of its rules in more than a generation on Thursday, ending the minority party’s ability to filibuster most presidential nominees in response to the partisan gridlock that has plagued Congress for much of the Obama administration.

Furious Republicans accused Democrats of a power grab, warning them that they would deeply regret their action if they lost control of the Senate next year and the White House in years to come. Invoking the Founding Fathers and the meaning of the Constitution, Republicans said Democrats were trampling the minority rights the framers intended to protect. But when the vote was called, Senator Harry Reid, the majority leader who was initially reluctant to force the issue, prevailed 52 to 48.

Under the change, the Senate will be able to cut off debate [i.e. invoke cloture] on executive and judicial branch nominees with a simple majority rather than rounding up a supermajority of 60 votes. The new precedent established by the Senate on Thursday does not apply to Supreme Court nominations or legislation itself.

From “Susan Rice Withdraws as Candidate for Secretary of State” (Source: The Washington Post, December 13, 2012)U.N. Ambassador Susan E. Rice withdrew her name Thursday as President Obama’s leading candidate for secretary of state, saying the administration could not afford a “lengthy, disruptive and costly” confirmation fight over statements she made about the extremist attack in Libya that killed four Americans.

Rice called Obama on Thursday morning, before sending him a letter officially withdrawing from consideration. . . .

Rice’s withdrawal was a retreat by Obama, who had repeatedly voiced support for her. In a statement issued by the White House, Obama described her as “an extraordinarily capable, patriotic, and passionate public servant. . . .”

[Republican opposition in the Senate to Rice’s nomination was nearly unanimous. The controversy over Rice stems from] the extremist attack on the U.S. diplomatic mission in Libya that killed U.S. Ambassador J. Christopher Stevens and three other Americans. Sens. John McCain (R-Ariz.) and Lindsey O. Graham (R-S.C.) have focused on what they called Rice’s intentionally misleading description, in television interviews five days after the attack, of an anti-American demonstration that turned violent. The administration later revised that assessment, using what it said was updated intelligence information, to blame organized extremists. . . .

Senate Majority Leader Harry M. Reid (D-Nev.) said Rice could have been confirmed by the Senate but for the actions of certain Republicans. “The politically motivated attacks on her character from some of my Republican colleagues were shameful,” he said in a statement Thursday.

Excerpts from Article II of the ConstitutionThe President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

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From “President Sends Bolton to U.N., Bypasses Senate” (Source: The New York Times, August 2, 2005)President Bush bypassed the Senate and installed John R. Bolton as his ambassador to the United Nations on Monday over strong Democratic objections that he was abusing power and undermining the credibility of the United States.

In a brief announcement in the Roosevelt Room of the White House, Mr. Bush said he had been forced to act because the United States had gone for more than six months without an ambassador to the United Nations.

The appointment brought to a close a five-month standoff between the White House and Senate Democrats, who had held up Mr. Bolton's confirmation over accusations that he had manipulated intelligence to conform to his [pro-war] ideology and had bullied [people who worked for him]. . . .

"This post is too important to leave vacant any longer, especially during a war and a vital debate about U.N. reform," Mr. Bush said. . . .

Senator Harry Reid of Nevada, the Democratic [minority] leader, characterized Mr. Bush's move as "the latest abuse of power by the Bush White House," while another Democrat, Senator Frank R. Lautenberg of New Jersey, said in a statement that "even while the president preaches democracy around the world, he bends the rules and circumvents the will of Congress" at home.

Mr. Bush, in his remarks, put the blame for the holdup of the nomination on "partisan delaying tactics by a handful of senators," but Democrats countered that the handful numbered at least 42, including a Republican. . . .

Democratic aides in Congress acknowledged that there was little their party could do beyond criticizing the appointment, which senators did via e-mail messages to reporters. . . .

From “Obama Bypasses Senate Process, Filling 15 Posts” (Source: The New York Times, March 27, 2010)President Obama, making a muscular show of his executive authority just one day after Congress left for spring recess, said Saturday that he would bypass the Senate and install 15 appointees, including a union lawyer whose nomination to the National Labor Relations Board was blocked last month [by Republicans who believed him to be too liberal]….

Just two days ago, all 41 Senate Republicans sent Mr. Obama a letter urging him not to appoint the union lawyer, Craig Becker, during the recess. . . .

“The United States Senate has the responsibility to approve or disprove of my nominees,” Mr. Obama said in a statement. “But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my [constitutional] authority to fill these positions on an interim basis….”

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Republicans, who have [called] Mr. Becker . . . a pro-labor radical, issued a flurry of angry statements. They wasted little time in reminding reporters that when George W. Bush was president, then-Senator Obama had railed against the recess appointment of John R. Bolton as ambassador to the United Nations. . . .

Recess appointments are a common tool for presidents frustrated by the confirmation process. Mr. Obama’s action puts him on a par with Mr. Bush, who had made 15 recess appointments by this point in his presidency. Mr. Bush . . . made a total of 171 recess appointments. . . . President Clinton made 139 recess appointments.

From “Court Rejects Obama Move to Fill Posts” (Source: New York Times, January 25, 2013)In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a recess even though the Senate considered itself to be meeting in “pro forma” sessions [during which the Senate meets for only a few minutes a day].

Mr. Obama has made about 32 such appointments, including that of Richard Cordray, as director of the Consumer Financial Protection Bureau. President Bill Clinton made 139, while Mr. Bush made 171, including those of John R. Bolton as ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

Nearly all of those appointments would be unconstitutional under the rationale of the United States Court of Appeals for the District of Columbia Circuit. It ruled that presidents may bypass the confirmation process only during the sort of recess that occurs between formal sessions of Congress, a gap that generally arises just once a year and sometimes is skipped, rather than other breaks throughout the year.

#8 Congress Impeaches Federal Officials (or Threatens Impeachment)

Excerpt from Article II of the U.S. ConstitutionThe President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

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Federal Officials Impeached (Source: U.S. Senate website via Wikipedia)

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