Tom Ridge will likely have the power to bend Washington’s bureaucracy to his will—thanks to President Clinton

by Randolph J. May
Legal Times, December 3, 2001

Almost everyone agrees that Tom Ridge, a Harvard-educated Vietnam vet and the former governor of Pennsylvania, is smart, tough, and politically savvy. What they don’t agree on is whether the director of the new Office of Homeland Security has the power he needs to do his job.

However unlikely the scenario seems now, it’s possible that what starts as a dispute between Ridge and an agency head could turn into a fight over the president’s authority over his administration. If this happens, President George W. Bush will probably prevail. And if he does, he will be in the debt of Bill Clinton, who likely transformed the institutional relationship between the administrative agencies and the White House.

The executive order creating Ridge’s office charges him with the task of “coordinat[ing] the implementation of a comprehensive national strategy to secure the United States from terrorist threats and attacks.” He is responsible for coordinating (the word is used in the executive order 40 times) everything from emergency preparedness to plans for protecting the nation’s transportation and communications systems. While the exact scope is debatable, Ridge’s responsibilities range over activities normally performed by approximately 50 federal agencies.

Shortly after the executive order was issued, politicians and pundits started chirping that, regardless of Ridge’s personal stature, he’s been set up to fail. They point out that his office lacks statutory authority to dictate the actions of federal agencies whose activities he is responsible for coordinating. Typical of this view was a Nov. 18 Washington Post piece, in which Eric Pianin and David Broder reported that “Ridge is groping his way in a critical new office that is light on line authority and budget clout.”

It is true that, even in the midst of the current war, it will not be easy for Ridge to coordinate policy with agencies headed by people with supersized egos and populated by turf-protecting bureaucrats. But in light of the widespread appreciation that a high degree of policy coordination is desirable—and in light of the president’s public show of confidence in Ridge—the Homeland Security director has a good chance of getting the agencies to do what he wants. As Secretary of Health and Human Services Tommy Thompson has said, “I can’t imagine that any Cabinet officer would be dumb enough to challenge” Ridge’s authority.

POSSIBLE POWER PLAY

But let’s suppose Thompson’s wrong. Say Ridge requests the Department of Transportation to issue a new regulation reducing the amount of hazardous materials that trucks may carry. By statute, Congress has delegated to “[t]he Secretary of Transportation” the authority to “prescribe regulations” relating to the safe transport of such materials. Assume that the truckers mount a ferocious campaign to preserve the existing policy and the secretary balks at Ridge’s request.

What then? It may well be true, as Bradley Patterson Jr. commented on these pages on Nov. 5 [“American Czar,” Page 54], that “the czar’s power is nothing but the president’s power.” Fine. But can even the president direct an obstinate agency head to issue a particular regulation within the scope of the agency’s delegated authority? Believe it or not, there is virtually no judicial precedent on point. And for many years, administrative law scholars have divided generally into two camps on this issue.

On the one hand are those who espouse the “unitary executive” theory, relying principally on the Constitution’s injunction that “[t]he executive Power shall be vested in a President.” In the minority, they argue that Article II gives the president plenary authority to control the actions of executive branch agencies, such as the DOT, and that Congress may not restrict this authority. (The independent agencies, such as the Federal Trade Commission or the Federal Communications Commission, which allow the president to dismiss a commissioner only “for cause,” present different questions.)

In the other camp are those who argue that the president may not demand adoption of a particular policy. In this prevailing view, when Congress delegates authority to an agency head, the agency head, not the president, has the final say. To be sure, the Supreme Court’s decision in Myers v. United States (1926) made clear that, as a constitutional matter, the president may remove an executive department head for any reason—including failure to follow presidential instructions. But firing a Cabinet-level official in order to replace him with someone (hopefully) more compliant usually has political costs that a president might wish to avoid.

How to resolve the dilemma? In a very insightful article in the June 2001 issue of the Harvard Law Review entitled simply “Presidential Administration,” Harvard Professor Elena Kagan fruitfully plows some new middle ground. She unapologetically makes the case that “presidential control of administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive branch agencies more and more an extension of the president’s own policy and political agenda.” Having served as a senior legal and policy adviser to President Clinton, she knows what she’s talking about.

Kagan documents several instances in which President Clinton spoke and acted in a way that presumed that he possessed authority to direct particular agency actions. For example, in 1999, before there was even any rule making pending, Clinton declared publicly that he would “use [his] executive authority as president” to “direct[] the Secretary of Labor to issue a rule” allowing the unemployment system to be used to offer paid leave to new mothers and fathers. Simultaneously, he issued an executive memorandum “directing the Secretary of Labor to propose regulations” in line with his announcement. Then, when the Labor Department adopted the rule that he had directed the secretary to propose, the president used his weekly radio address to announce the action.

A more generic indication of President Clinton’s understanding of the extent of his directive authority may be found in his Executive Order No. 12,866 governing the Office of Management and Budget process for reviewing proposed agency regulations. While in many respects the Clinton order mirrored the earlier Reagan and Bush I executive orders, Kagan points out that there was little comment on the most significant departure: For the first time, a regulatory review order stated that, in the event of a dispute between the OMB and an agency concerning an agency action, “the President shall notify the affected agency . . . of the President’s decision with respect to the matter.” As Kagan puts it: “[T]he fairly clear premise of the order was that the simple delegation of rulemaking authority to a specified agency head (the kind of delegation that underlies almost all regulations) would not prevent the President from making a final decision.”

A CLINTONESQUE SOLUTION

Kagan does not, however, claim that Congress has no authority to structure executive branch decision making. On the basis that the original meaning of Article II is unclear, she rejects the unitary view that Congress is constitutionally barred from restricting the president’s plenary control of agency actions. But she believes that Congress most often does not do so.

To determine whether the president possesses directive authority, she would establish an interpretive principle similar to the one the Supreme Court announced in Chevron v. Natural Resources Defense Council (1984) to assess the agencies’ exercise of their own authority. So, if Congress has stated clearly its intent with respect to presidential involvement, then the statement governs. On the other hand, “if Congress, as it usually does, simply has assigned discretionary authority to an agency official, without in any way commenting on the President’s role in the delegation,” then the courts should presume that Congress intends the delegation of authority to extend beyond the agency head to the president.

Kagan makes a persuasive case for her middle-of-the-road formulation. The default presumption she supports acknowledges Congress’ power to deviate from its ordinary practice by specifically restricting the exercise of delegated authority to agency heads. But the default presumption tilts toward the unitarian position, thereby fostering important values of accountability and uniformity that an executive with coordination authority can promote.

Perhaps President Bush will never need to intervene to resolve a dispute between Tom Ridge and a department head. And, in any event, it is unlikely that such a dispute will reach the courts. But if it does, Bush’s lawyers may well find themselves relying on the arguments made by a former top Clinton aide, in support of a more expansive view of presidential directive authority than that which generally prevails in academia.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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