Friday, February 02, 2007

Muzzling the regulators

You've probably heard that the White House intends to put a political appointee in every federal department--apart, presumably, from independent regulatory bodies such as the FCC--to ensure that all regulations meet standards set by the President. This has brought howls of outrage from liberals who are sure--and surely correct--that this is another attempt by W and his cronies to centralize and expand the power of the presidency, no matter what the voters may have said in November. We may confidently expect that these watchdogs will also protect the President's big-business supporters: no regulation harmful to Halliburton will be permitted in the waning days of the Bush administration.

One part of me says that this is a matter of the gored ox. If (when) a Democrat takes over the Oval Office in 2009, won't we like having a watchdog to see that holdovers from the Bush years don't continue to coddle business at the expense of the environment, worker safety, etc.?

But it strikes me that in many cases, White House interference in the regulatory process is probably illegal, at least if carried out as it has been announced. Many statutes give authority to particular department heads to promulgate regulations: "the secretary may issue regulations..." is a common phrase in the US Code. In such instances, making the Secretary of Health and Human Services, say, run things by a White House guardian would contravene the law. Given that the secretaries are themselves political appointees, this may seem to be a matter of legal arcana, but as a practical matter cabinet officers have a good deal of independence and, given the limited time available to them, they are not likely to ask the White House to vet every proposed regulation.

A real-world example of this kind of thing occurred in the late 1930's. After the Hindenburg disaster at Lakehurst, NJ, the Germans asked to buy helium from the US for their remaining dirigible, the Graf Zeppelin. FDR and the State Department, wanting to get some leverage with the Nazi regime, were for the idea. But the law said that sales of helium (which is only found on Earth in Texas) to foreign buyers had to be approved by the Secretary of Commerce, at the time Harold Ickes. Ickes was a fervent anti-Nazi, and refused to OK the deal. In essence, he gave Roosevelt the option of going along with his decision or firing him. FDR kept Ickes and let the prospective sale go into the wastebasket.

No comments: