assignment 4

POLICY IMPLEMENTATION

When the adoption phase of the policy process has been completed and, for instance, a bill has been enacted into law by a legislature, we can begin to refer to something called public policy. Policymaking is not concluded, however, once a policy decision has been expressed in statutory or other offi- cial form. The policies that are embodied in statutes, for example, often are rudimentary and require much additional development. Thus, the Americans with Disabilities Act, which prohibited discrimination against the 43 million Americans with disabilities, has required extensive rule-making to spell out its requirements by the Equal Employment Opportunity Commission (EEOC), the Department of Transportation, the Department of Education, the Federal Communications Commission, and other agencies. Subsequently, they produced hundreds of pages of detailed rules in the Federal Register.1

With this qualification in mind, we turn to the policy implementation stage of the policy process. Implementation (or administration) has been referred to as “what happens after a bill becomes law.” More precisely, implementation encompasses whatever is done to carry a law into effect, to apply it to the target population (e.g., small businesses or motorcycle operators), and to achieve its goals. The study of policy implementation is concerned with the agencies and officials involved, the procedures they follow, the techniques (or tools) they employ, and the political support and opposition that they encounter.2 In so doing, it focuses attention on the day-to-day operation of government.

There is often considerable uncertainty about what a policy will accomplish, how effective in terms of its goals it will be, or the consequences that it will have for society. It is this uncertainty that makes the study of policy implementation interesting and worthwhile. Policy implementation often is neither a routine nor a very predictable process. Why some policies succeed and others fail remains a challenging puzzle.

In actuality, it is frequently difficult, sometimes impossible, to neatly separate a policy’s adoption from its implementation. Here again, we may find that the line between functional activities is smudgy. Statutes sometimes do not do much beyond setting some policy goals and creating a framework of guidelines and restrictions for their realization. Congress usually does not attempt to define fully the intended impact of a law nor try to anticipate all of the problems and situations that may be encountered in its implementation.3 Even the goals of a statute may not be clearly or consistently specified.

Administrative agencies are often delegated discretion or latitude to issue rules and directives that will fill in the details of policy and make it more specific. The Occupational Safety and Health Act of 1970 exemplifies this pattern. Although the right of workers to a safe and healthful workplace is generally guaranteed, the statute itself does not contain substantive health and safety standards. Rather, the Occupational Safety and Health Administration (OSHA), a bureau in the Department of Labor, is authorized to promulgate rules creating specific health and safety standards. Only as this occurs do we have meaningful and enforceable standards that can be applied to protect workers’ health and safety. In effect, within the framework provided by Congress, OSHA both makes and implements policy on industrial health and safety. Different units within OSHA handle the tasks of rule-making and enforcement.

Much of what agencies do during the implementation of policies may appear to be routine, mundane, or tedious—processing requests or applications, inspecting records, collecting information, writing reports, and so forth. Most people may have little or no awareness of what agencies are doing unless they are directly affected. Nonetheless, the consequences of implementation for the content or substance of policy, and for its impact and degree of success, are every bit as important as what transpires during the formulation and adoption stages. Indeed, if implementation fails, then all that preceded was of no avail.

Vigorous and sometimes bitter political struggles attend the implementation of policies, such as those pertaining to environmental-pollution control, affirmative action, and the practice of abortion. Groups that suffer losses in the legislative arena may seek to recoup some of their losses by influencing or disrupting the administration of a policy. Thus, the automobile companies for decades were able to delay the National Highway Traffic Safety Administration’s air- bag requirement. The coal-mine industry has persistently worked to lessen the effectiveness of both surface mining and mine-safety regulation.

A few policy decisions are essentially self-executing, such as the national government’s refusal to extend formal recognition to the government of a foreign country, presidential decisions to veto legislation passed by Congress (especially when it involves a pocket veto), and the National Park Service’s decision in the early 1970s not to fight fires caused by lightning in the national parks. Such decisions, entailing clear-cut, one-time actions, are relatively few, however. Those who study public policy, consequently, can ill afford to neglect the implementation stage of the policy process.

Until the great expansion of social-welfare programs during the Johnson years focused their attention on implementation (the term began to gain currency in the 1960s), it had not been of much interest to most political and social scientists.4 The study of implementation was made salient for political scientists by Professors

Jeffrey L. Pressman and Aaron Wildavsky’s Implementation, a case study of the failure in the early 1970s of a federal jobs-creation project undertaken by the Economic Development Administration in Oakland, California.5 Since that seminal event, political scientists have been actively researching the implementation of public policies, debating whether policies can be successfully implemented (or administered), and, finally, striving to build systematic the- ories that will rigorously explain why some policies are likely to be more successfully implemented than others. They have yet to strike theoretical pay dirt, such as identifying the specific variables critical to successful implementation. Their labors, however, have produced a mound of implementation literature and increased our understanding of the implementation process.6

Most of the implementation studies take either a “top-down” or “bottom-up” approach. Top-downers focus on the actions of top-level officials, the factors affecting their behavior, whether policy goals are attained, and whether policy was reformulated on the basis of experience. Bottom-uppers contend that this approach gives too much attention to top-level officials and either ignores or under- estimates the efforts of lower-level (or “street-level”) officials to either avoid policy or divert it to their own purposes. Implementation studies, they argue, should focus on lower-level officials and how they interact with their clients. State and local economic conditions, the attitudes of local officials, and the actions of clients are among the factors affecting implementation. As one would expect, there have also been efforts to combine these two approaches.7 Agreement has not been reached, however, on what is the best way to study implementation.

Although drawing on this implementation literature, this chapter takes a more traditional approach to policy implementation and opens with a survey of some of the players in policy implementation. It then narrows its focus to administrative agencies. Administrative organization, the political context, policymaking patterns, and implementation techniques are taken up in order. Along with financial resources (dealt with in Chapter 5, “Budgeting and Public Policy”), these can be viewed as independent variables that affect policy out- comes and implementation success. The concluding section on compliance with policy looks at the responses of those benefited or regulated. The goal of this chapter is to provide readers with a working knowledge of the politics and processes of policy implementation and to furnish some tools for their analysis. Figure 6.1 provides a simplified look at the implementation process.

Federalism and Implementation

Federalism frequently complicates the implementation of national policies. Although various policies—Social Security, commercial airline safety, bank-deposit insurance—are handled solely by national officials, many national policies depend significantly upon state and local governments for grass-roots or street-level support and implementation. This holds true for many national policies on education (both lower and higher), environmental protection, highways, social welfare, and law enforcement.8 In such areas, Congress has been either reluctant or unable (as in the instance of public education) to bypass the states when it makes policy. Moreover, Congress has found that it can shift many of the costs of national programs to states and localities.

Cost shifting often occurred as the national government, by direction or indirection, imposed program costs on state and local governments. As one might guess, this brought complaints from their officials. In 1995, not long after the Republicans gained control of Congress, the Unfunded Mandates Reform Act passed with large bipartisan majorities. The act was intended to ensure that the costs of mandates enacted by Congress were apparent and to cause Congress to provide financing when intergovernmental mandates were made law. A procedural point of order required Congress to acknowledge it was imposing a mandate. It did not prohibit them.

This has not done much to alter Congressional behavior. Following the adoption of UMRA, Congress has imposed scores of mandates. Many were beyond the scope of the act, which contained several loopholes, such as legislation included in appropriations bills. As Congress responds to pressure to decrease budget deficits, unfunded mandates will help the national government lower its spending while meeting demands for action.

National legislation and agencies may provide policy goals, performance standards, technical assistance, financial support, and more, but much of the day-to-day administrative action necessary to apply policies to the target popula- tions must come from the states. In most states, for example, the Environmental Protection Agency (EPA) has delegated enforcement of its air- and water-quality standards to state environmental agencies. This creates a bi-level implementation situation: macro-implementation and micro-implementation.9 At the macro level, national officials must act to secure effective action by state officials. Then, at the micro level, state officials must gain compliance from the target populations. Macro–micro implementation increases the likelihood of slippage.

The Clinton administration devised the National Environmental Performance Partnership System (NEPPS) to give the states more flexibility in managing federal environmental programs if they show innovation and better performance in improving environmental quality. Unfortunately, the implementation of NEPPS fell short of expectations. EPA officials often were reluctant to modify existing practices. The states, in turn, proved to be less open to innovation than had been hoped. “They tended to balk at any possibility that the federal government would establish—and publicize—serious performance measures that would evaluate their effectiveness and determine their ability to deviate from federal controls.”10 Administrations since 2000 have displayed minimal interest in promoting NEPPS.

Who Implements Policy?

In the United States, as in other modern political systems, policy implementation is formally the province of a complex array of administrative agencies, now often referred to as bureaucracies, a term that carries both descriptive and pejorative connotations.16 Administrative agencies collect taxes; operate the postal system, prisons, and schools; regulate banks, utility companies, and agricultural production; construct and maintain streets and highways; inspect food, meat, water, and drugs to ensure their safety; provide medical benefits and services; and perform many other tasks of modern governments.

Although there are myriad complaints about agencies and bureaucrats, their bungling and lethargy, the fact is that administration is the central process in governance—it provides action, continuity, and stability. Someone who wants to more fully understand the nature, use, and impact of political power cannot afford to ignore administrative processes, notably policy implementation. It has much consequence for who actually gets “what, when, and how.”17

Because they perform most of the day-to-day work of government, their actions affect citizens more regularly and directly than those of other govern- mental bodies. Nevertheless, policy students would not need to spend much time fretting about implementation except that agencies usually have much discretion (i.e., leeway or the opportunity to choose among alternatives) in car- rying out policies under their jurisdiction. Although at one time it was widely believed that agencies automatically applied policies adopted by legislatures and executives, this is not generally the case except in such matters as the sale of postage stamps and the printing of currency.

A classic feature of the traditional literature of public administration was the notion that politics and administration were separate and distinct spheres of activity. Politics, wrote Professor Frank Goodnow in 1900, dealt with formulating the will of the state, with making value judgments, and with determining what government should or should not do, in short, with making policy. It was to be handled by the “political” branches of government—that is, the legislature and the executive.18 Administration, on the other hand, was concerned with implementing the “will of the state,” with carrying into effect the decisions of the political branches. Administration dealt with questions of fact, with what is rather than what should be, and consequently could focus on identifying the most efficient means (or “one best way”) of implementing policy. Were this viewpoint indeed accurate, policy analysts could end their inquiry with the adoption of policy.

Administrative agencies often are provided with broad and ambiguous statutory mandates that leave them with much room for choice in deciding what should or should not be done on some matter. Thus, the National Labor Relations Board (NLRB) is directed to ensure that labor and management bargain in “good faith”; the Federal Communications Commission to license television broadcasters for the “public interest, convenience and necessity”; the Forest Service to follow a “multiple-use” policy in managing the national forests that balances the interests of lumber companies, sportsmen and sportswomen, live- stock grazers, and other users; the Consumer Product Safety Commission to ban products that present an “unreasonable hazard”; and the EPA to ensure that the “best available technology economically achievable” is used to control water pollution. Such statutory mandates are essentially directives to agencies to go out and make some policy. Moreover, because they possess discre- tion, they become the political targets of pressure groups and others seeking to influence the content of their decisions. Consequently, agencies become embroiled in policy politics.

Frequently those who participate in the legislative process are unable or unwilling to arrive at precise settlements among the conflicting interests on many issues. Only by leaving some matters nebulous and unsettled can agreement on legislation be reached. Lack of time, interest, information, and expertise as well as the need for flexibility in implementation may also help explain the delegation of broad authority to agencies. The product of these factors is a statute couched in general language, such as that mentioned above, which shifts to agencies the tasks of filling in the details, making policy more precise and concrete, and trying to make more definitive adjustments among conflict- ing interests. Under these conditions, the administrative process becomes an extension of the legislative process.

Although legislatures have delegated much policymaking authority to admin- istrative agencies, it should not be assumed that legislatures cannot act with specificity. An illustration is Social Security legislation, which sets forth in explicit terms the standards for eligibility, the levels of benefits, the amount of additional earnings permitted, and other considerations for old-age and survivors’ benefits. Most administrative decisions on application for these benefits simply involve applying the legislatively set standards to the facts of the case at hand and deciding whether an applicant is entitled to retirement benefits and, if so, what the level of benefits should be. Under such circumstances, administrative decision- making becomes mostly routine and is therefore unlikely to produce controversy.

In comparison, the disability standard under the Social Security program has produced considerable controversy. Disability is loosely defined as the in- ability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment expected to result in death or to last at least twelve months. This definition leaves much room for interpretation, conjecture, and disagreement.19 Thousands of cases involving the denial of disability benefits are litigated in the federal courts.

Although administrative agencies are the primary implementers of public policy, many other players may also be involved and contribute in various ways to the execution of policies. Those examined here include the legislature, the courts, pressure groups, and community organizations. These may be directly involved in policy implementation or act to influence administrative agencies, or both. By no means are agencies fully in control of the implementation process. Here again, we find competition for power in the American political system.

The President

Article II of the Constitution states that “the executive Power shall be vested in a President....” No explanation is provided of what this entails. Further on, Article II says that “he shall take Care that the Laws be faithfully executed.” This would appear to empower and obligate the president to be involved in policy implementation. The president, however, has a wide range of duties and obligations. These include foreign affairs, economic policy and the wellbeing of the economy, policy development, and ceremonial activities as chief of state, as well as policy implementation. As Professors George Edwards and Stephen Wayne state, “Policy implementation has had a low priority in most [recent] administrations.” They explain, “Presidents know they will receive little credit if policies are managed well because it is very difficult to attribute effective implementation to them personally.”20 Lyndon B. Johnson was the last president to become fairly extensively involved in policy implementation.21 He received regular reports on agency officials, questioned officials about their programs, made recommendations for action, and more. He had a remarkable capacity to participate without getting bogged down in details. As an example, wage-price guide- posts were used to combat inflation. Johnson “met with business groups and labor leaders ..., made appeals in person and by telephone and tele- gram, suggested ‘levers’ that could be used to help induce compliance, and encouraged and pressured his subordinates to act. No major wage-price actions were taken without his approval.” Johnson was the quintessential activist president.

Occasionally a president and some of his advisers may decide that a law on the statute book is unconstitutional. What then should the president do? Should he direct that the law not be enforced? Or should it be enforced un- til the courts have rendered a definitive verdict? Recently President Obama faced this dilemma with respect to the Defense of Marriage Act (DOMA).22 He decided the law was unconstitutional and that his administration would no longer defend it in court. Together with his attorney general and some (but not all) of his advisers, he concluded it should be carried out. Other presi- dents have acted similarly. In June 2013, the U.S. Supreme Court, in a 5 to 4 decision, declared DOMA to be unconstitutional.

Presidents now rarely participate in the details of policy implementation. The best means that a president has for exercising control and direction over the executive branch, for getting officials and agencies generally to act as he wishes, is the power of appointment and removal. The president makes many hundreds of appointments to top-level positions in the departments and agencies. The president will be careful to select persons who share his political philosophy or policy orientations. George W. Bush’s conservative appointments to regulatory agencies and commissions (e.g., the EPA, Antitrust Division, and Securities and Exchange) were not vigorous regulators. They did not ignore the laws under their jurisdictions, but they did ease up on enforcement. In contrast, Obama’s appointments to these and many other agencies were much more activist. Thus, for instance, the EPA bore down much harder on air and water pollution regulations.

Presidents do not often remove officials from office. It is messy and un- pleasant, and seldom done. Presidential appointees generally regard following presidential leadership as one of the rules of the game. If you can’t do what the president wants, then you ought to get out, as a former Johnson administration official told me.

The Legislature

Some members of legislative bodies display much interest in the implementation of policies. Indeed, Professor Theodore Lowi holds that “the major problem and major focus of Congress is no longer simply that of prescribing the behavior of citizens but more often that of affecting the behavior of administrators.”23 Some of the techniques used by Congress and its members to influence administrative action and hold agencies accountable for what they do are examined here. Committee hearings and investigations are used to gather information, review the implementation of policies, publicize agency actions, put pressure on agency officials, and enhance the political reputations of members of Congress. (Technically, hearings focus on proposed legislation, whereas investigations deal with problems. They are lumped together here.) In 1997, the Senate Finance Committee held hearings on the Internal Revenue Service (IRS) at which taxpayers told “horror” stories about the IRS. Their sensational quality attracted much media attention and helped build bipartisan political support for the IRS Restructuring and Reform Act of 1998.24 This law created an in- dependent board to supervise the IRS, called for the agency’s reorganization, provided for disciplining agency employees who abused their authority, and expanded protection for taxpayer rights. Generally, it was intended to make the IRS a less adversarial and more taxpayer-friendly agency. Interestingly, it was later found that many of the horror stories related at the Senate hearings were unfounded or exaggerated.25

Another control device is the specificity of legislation. The more detail in the legislation that Congress passes, the less discretion agencies usually will have. Specific limitations on the use of funds may be written into statutes, or deadlines may be specified for some actions, as has been done in some environmental-protection laws; “hammers,” or stringent rules or requirements, may be incorporated in a law, to go into effect if an agency does not act with alacrity or effectiveness; or specific standards may be set, as in minimum-wage legislation. The committee reports that accompany many bills often include suggestions or statements explaining how legislation should be implemented or specifying projects that money should go for. These reports do not have the force of law but are ignored by administrators only at their own peril.

Senatorial approval, which is required for many top-level executive appoint- ments, provides senators with a lever that can be used to influence policy. Commitments on policy matters may be extracted by senators from nominees during hearings on their appointment. Or a nominee for a position may be rejected because some senators find objectionable his or her policy views or actions. This happened to two persons nominated by President Bill Clinton to head the Civil Rights Division of the Department of Justice. Conservative senators considered them to be “too liberal,” that is, they were supporters of civil rights.

The legislative veto is an arrangement whereby either congressional approval has to be secured before an administrative action can be taken or a specific action can be subsequently rejected by Congress or its committees; the veto originated in 1932. President Herbert Hoover wanted authority to reorganize the national administrative system, but Congress was reluctant to grant it. A deal was made. The president was authorized to reorganize the system, but Congress gave itself the right to disapprove his actions if it deemed them objectionable. The legislative veto gives administrative agencies flexibility in the implementation of legislation while permitting Congress, if it so chooses, to exercise control over what is done. It also enables Congress to become in- volved in the details of administration.26

As reported in Chapter 5, “Budgeting and Public Policy,” the Supreme Court in 1983 declared the legislative veto unconstitutional. Nonetheless, since then some 400 legislative veto provisions have been included in laws passed by Congress. Others have been put in place by informal agreements between Congress and the executive. During the George Bush administration, for example, the secretary of state agreed to give four congressional committees a veto over the expenditure of funds appropriate to support the Contras (rebels) in Nicaragua. Had this not been done, Congress might not have enacted legislation creating the aid program, which was strongly desired by the Bush admin- istration.27 The legislative veto persists because the legislative and executive branches view it as a practical way to handle some of their differing interests.

Finally, much of the time of many members of Congress and their staffs, and some of the time of all members, is devoted to “casework.”28 Typically, casework involves handling problems that constituents have with administrative agencies such as delayed Social Security or veterans’ benefits, difficulty in getting action on a license application, or uncertainty about how to apply for a grant. The constituents, of course, want their representatives to secure favorable action for them. Members of Congress engage in casework because it is thought helpful to their chances of reelection and because it contributes to their oversight of agencies. Beyond that, the practice helps “humanize” administration by making it more responsive to individual needs and problems. As for agency officials, responsiveness to congressional inquiries is seen both as appropriate and as a means of building or maintaining political support.

The Courts

Some legislation is enforced primarily through judicial action. Laws dealing with crimes are the most obvious example. Some economic regulatory statutes, such as the Sherman Act, are enforced by lawsuits brought in the federal district courts, some of which are eventually appealed to the Supreme Court. Because of this tactic and the act’s general language, the meaning of antitrust policy depends greatly upon judicial interpretation and application of the statute. In the nineteenth cen- tury, it was quite common for legislatures to enact laws requiring or prohibit- ing some action and then to leave it to the citizens to protect their rights under the law through proceedings brought in the courts. Generally, administrative regulation, in which primary responsibility is assigned to an agency for the enforcement of a statute, is now much more common than judicial regulation in the American political system. It is also more effective.

In some instances, the courts may be directly involved in the administration of policy. Naturalization proceedings for aliens are really administrative in form, but they are handled by the federal district courts. Bankruptcy proceedings are another illustration. A complex system of trustees, receivers, appraisers, accountants, auctioneers, and others is supervised by federal bankruptcy courts. In all, it is “a large scale example of routine administrative machinery.”29 A national bank- ruptcy agency could handle much of this activity. Many divorce and domestic- relations cases handled by state courts also appear essentially administrative, involving matters of guidance and management rather than disputed law or facts. There is no reason to assume that persons appointed or elected to judgeships are distinctly qualified to act in these matters.

The courts’ most important influence on administration, however, flows from their interpretation of statutes and administrative rules and regulations, and their review of administrative decisions in cases brought before them. Courts can facilitate, hinder, or largely nullify implementation of a policy through their decisions. The story of how the Supreme Court destroyed the effectiveness of early national railroad regulation under the Interstate Com- merce Act of 1887 by unfavorable rulings on the Interstate Commerce Com- mission’s (ICC) authority to regulate rates is well-recorded history.

In recent years, the Supreme Court’s rulings h have complicated and re- stricted the enforcement of equal-opportunity and affirmative-action programs. For instance, the Court has ruled that to be constitutional, an affirmative- action program has to be “narrowly tailored” to meet “a compelling government interest.” A Colorado program providing for the award of a portion of highway construction projects to minority contractors was struck down because it failed to square with this standard.30

Pressure groups

Because of the discretion often vested in agencies by legislation, once an act is adopted, the group struggle shifts from the legislative to the administrative arena. A group that can successfully influence agency action may have a substantial effect on the course and impact of public policies. Sometimes relationships between a group and an agency may become so close as to lead to the allegation that the group has “captured” the agency. In the past it was frequently stated that the ICC was the captive of the railroads,31 and it is not uncommon now to hear comments to the effect that the Federal Maritime Commission is unduly influenced by the ship- ping companies and that the Forest Service is too responsive to the interests of commercial timber companies. Also, groups may complain to Congress or the executive if they believe a statute is not being implemented in accordance with the intent of Congress (as they interpret it).

Groups also directly participate in administration, as when the representa- tion of particular interests is specified for the boards of plural-headed agen- cies. A common illustration is state occupational licensing boards, whose governing statutes frequently provide that some or all of the board members must come from the licensed profession. Occupational licensing (and regula- tory) programs are usually controlled by the dominant elements within the licensed groups. Consequently, such programs may do more to protect the in- terests of the licensed group than those of the general public.

Advisory bodies, such as the Advisory Committee on Vocational Education, the Advisory Committee on Hog Cholera Eradication, and the Advisory Committee on Reactor Safeguards, are another means by which groups may become participants in policy administration. Currently, around a thousand advisory groups serve na- tional administrative agencies.32 Some simply provide needed advice to agencies and their officials, as their name implies; others become more directly involved in program administration. Membership in advisory bodies may give group representatives privileged or special access to governmental agencies. Thus, many large defense contractors are represented on advisory committees for the Department of Defense. When advisory groups have a role in agency decision-making, they can add legitimacy to the policies that they have helped to develop.33

Some advisory committees may have direct control over program admin- istration. Each of the nineteen institutes within the National Institutes of Health (NIH) has an advisory council whose members must be leaders in science, medicine, and public affairs, including some who are specialists in the field covered by a particular institute (e.g., cancer, aging, or allergy and infec- tious diseases). Research grants to medical schools, universities, and others, which total more than $30 billion annually, can be made only after review and approval by each institute’s advisory council. This is intended to ensure that grants meet both scientific norms and public-policy criteria.34

Community Organizations

At the local level, community and other organizations occasionally have been used in the administration of national policies. Examples include farmer committees under the income-support and soil-conservation programs of the Department of Agriculture, resource advisory councils for the Bureau of Land Management, and representatives of the poor for Community Action agencies. Participatory democracy of this sort may give those involved considerable influence over the application of programs at the grass-roots level and also build program sup- port. Local draft boards (“little groups of neighbors,” as they were sometimes called) had a vital role during the Vietnam War years in determining, when only a portion of eligible males were required to meet military needs, who got drafted and who did not.35 Many of those drafted were sent to Vietnam. The compulsory draft and draft boards were later eliminated, although eligible males are still required to register with the Selective Service System Very early on in his administration, President George W. Bush created a White House Office of Faith-Based and Community Initiatives. Subsequently, several of the executive departments established similar offices. All of this was in accord with the President’s claims about “compassionate conservatism” during the 2000 campaign. The notion was that federal funds for social services should be funneled through local organizations, of which there were a vast number and variety in American society, because they would be more effective than governmental organizations.36 During the course of the Bush administration, many billions of dollars were channeled through these organizations. It was a controversial initiative because many observers thought that it violated (or could) the constitutional separation of church and state. President Barack Obama has continued a version of this program.

Concluding Comments

In summary, a variety of entities may play a role in implementing a policy of any complexity. In addition to those discussed here, the communications media (by reporting and criticizing an agency’s operations), other agencies with competing or overlapping jurisdictions, presidential staff agencies, and the judiciary, when used to challenge agency actions, may also get involved. These amalgams of participants are now often called “networks.” As an example, there is the Office of Management and Budget (OMB), whose interests reach beyond the funding of agencies. OMB is concerned with whether agency actions are in accord with the “policies and programs” of the president. Moreover, since 1981, the Office of Information and Regulatory Affairs (OIRA), an OMB unit, has been authorized by executive orders to oversee the issuance of rules and regulations by executive branch agencies. (More is said on this topic in Chapter 7, “Policy Impact, Evaluation, and Change.”)

The number and variety of participants in the implementation process will differ among policy arenas, depending upon policy salience, target populations, and the costs and impact of policies. The operations of the Railroad Retirement Board, which is located in Chicago rather than Washington, DC, draws little attention. In comparison, the Securities and Exchange Commission is a political magnet, attracting much attention and many interested parties.

Administrative Organization

One could say that one administrative agency looks pretty much like another, or if you have seen one agency, you have seen them all. Such a notion, however, is erroneous. Agencies in fact do vary greatly in structure, operating style, political support, expertness, and policy orientation. Those who want to influence the nature of public policy often are very interested in which agency or type of agency will administer a policy. Conflict over questions of administrative organization can be every bit as sharp as conflict over substantive policies. Forming administrative organizations is a political as well as a technical task. As a longtime observer of administration has remarked:

Organizational arrangements are not neutral. We do not organize in a vacuum. Organization is one way of expressing national commitments, influencing program direction, and ordering priorities. Organizational arrangements tend to give some interests and perspectives more effective access to those with decision-making authority, whether they be in the Congress or in the executive branch.37

The national executive branch comprises approximately seventy-five sepa- rate administrative entities and 2.8 million civilian employees (this includes the U.S. Postal Service), most of whom are covered by merit systems. Basically, there are four kinds of agencies: executive departments, independent regulatory commissions, government corporations, and independent agencies. They are listed in the historical order in which they appeared in the national administrative system. The fifteen executive departments—State, Defense, Commerce, Health and Human Services, to name a few—constitute the core of the executive branch. At the helm of an executive department is a presidentially appointed secretary who has cabinet rank and who is assisted in running it by various under-, deputy, and assistant secretaries. These are all political appointees, whose number has greatly expanded in recent decades.38

Most of the work of the departments in implementing programs and policies is handled by major administrative units that can generically be designated as “bureaus.” Thus, in the Department of Justice, one finds bureaus such as the Federal Bureau of Investigation, the Bureau of Prisons, the Drug Enforcement Administration, the Civil Rights Division, the Antitrust Division, and the U.S. Marshals Service. Because of their typically short tenure in office and lack of technical knowledge, the political appointees at the top levels of a department are often hard-pressed to exercise effective control and direction of its bureaus.

Independent regulatory commissions are plural-headed agencies that engage in the regulation of private economic activities, such as stock markets, banks, or labor-management relations (see Figure 6.2). Appointed by the president for fixed, staggered terms of office, only a majority of a commission’s members can come from the same political party. Unlike department secretaries, who serve for “the time being” and can be fired by the president whenever he or she chooses, regulatory commissioners can be removed only for such specified causes as malfeasance, inefficiency, and neglect of duties. None has been. Some have been pressured or urged to resign.

Thus, as a practical matter, the independent regulatory commissions, which handle a significant share of the government’s regulatory programs, are somewhat free from presidential control and direction. This is one reason why Congress has created them. On the other hand, the president can try to bring the commissions under his sway by appointing commissioners who share his policy preferences. The George W. Bush administration did this with the SEC. The results were not good for the performance of the economy.

Government corporations, which first became a part of the executive branch during the World War I era, are sometimes set up to handle businesslike or commercial activities for the government. Prominent examples are the U.S. Postal Service, the Tennessee Valley Authority, and the Federal Deposit Insurance Corporation. Wholly owned by the government, they look pretty much like other government agencies, but they have greater operating flexibility in financial and personnel matters. Typically, they impose fees or charges for the goods or services that they provide and can reinvest earnings.

Independent agencies number close to forty and, like independent and regulatory commissions and government corporations, are located outside of the executive departments. Some are large, well-known, and important, such as the National Aeronautics and Space Administration (NASA), the EPA, and the Central Intelligence Agency; others are smaller and somewhat obscure, such as the National Mediation and Conciliation Service, the Railroad Retirement Board, and the National Credit Union Administration. A variety of factors has contributed to their establishment. Some would not fit well into the executive departments (such as NASA and the EPA), others have watchdog or review duties (such as the Occupational Safety and Health Review Commission), still others provide services to a variety of agencies (such as the Office of Personnel Management), and some provide special notice for programs (such as the Peace Corps and the Commission on Civil Rights). Although all are subject to presidential control, much of what many of them do is not of presidential interest.

The Dodd-Frank Act (2010) provided for stronger protection of consumers by regulating financial products and services (e.g., payday loans and home mortgages) to ensure fairness and understanding of their terms. Implementation was assigned to a new Consumer Financial Protection Bureau, located in but independent of the Federal Reserve System (although it is funded by the FRS). Its director is presidentially appointed with Senate approval for a five- year term. Harvard law professor Elizabeth Warren (now a U.S. Senator) was instrumental in the bureau’s creation by her strong and persuasive advocacy.

Responsibility for implementing a new public policy usually is assigned to an existing agency. Occasionally, however, a new agency is created for this purpose, usually by legislative action. Thus, in 2001, Congress established the Transportation Security Administration in the Department of Transportation to handle airport security. (It has been moved to the Department of Homeland Security.) In other instances, new agencies were set up by the executive using administrative reorganization authority (now lapsed), which permitted the president to propose reorganization plans that went into effect automatically unless disapproved by either house of Congress. The EPA, established by a Nixon administration 1970 reorganization plan, administers environmental-protection programs formerly scattered among several agencies. A few other agencies— such as the Department of Agriculture’s Farm Service Agency, which administers income- and price-support programs, and the Centers for Medicare and Medicaid Services in the Department of Health and Human Services—have been created under broad statutory authority delegated by Congress to executive officials.

When a new policy or program is developed, the contending parties often seek to have its implementation awarded to an agency that they think will act favorably toward their interests. The case of occupational health and safety legislation is one in point. When it became evident in 1970 that legislation would be enacted, attention focused on how it would be implemented.39 Business groups, along with the Nixon administration, did not want the Department of Labor, which they viewed as pro-labor, to set health and safety standards. Nor did they want standard-setting and enforcement to be lodged in the same agency. Their preference was to have an independent board to set standards, Labor to inspect workplaces, and either the courts or another agency to impose penalties and hear appeals. Organized labor, spearheaded by the United Steel Workers, and liberal Democrats wanted all standard-setting and enforcement authority located in Labor.

The result was a compromise. The Department of Labor was awarded authority to set health and safety standards, enforce them, and impose penalties for their violation. Within the department these tasks were assigned to OSHA. An independent, quasi-judicial agency, the Occupational Safety and Health Review Commission, was created to hear appeals of OSHA enforcement action. The National Institute for Occupational Safety and Health within the Department of Health and Human Services (formerly the Department of Health, Education, and Welfare) was authorized to conduct research and to develop and recommend health and safety standards. Moreover, enforcement authority could be delegated to state governments with acceptable programs. This fragmented organizational structure has complicated and softened implementation of the occupational safety and health program. For example, enforcement and penalty decisions made by OSHA have frequently been modified or over- turned by the review commission.

Administrative Politics

A statute only gives an agency the legal authority to take action to im- plement policy on some topic. How effectively the agency carries out its legal mandate and what it actually does or does not accomplish will be substantially affected by the amount of cooperation and political support it gets and, conversely, the political opposition it runs into. To put it differently, an agency dwells and acts in a political milieu that affects how it exercises power and carries out its programs.

The environments of some agencies are more political, more volatile, and more tumultuous than those of others. The Bureau of Engraving and Printing and the U.S. Geological Survey lead much more serene political lives than do the EPA and the Federal Communications Commission. But whatever the conditions, the environment in which an agency exists may contain many forces that may, at one time or another, impinge on it and help give direction to its actions in multitudinous ways.40 These forces may arise out of the following sources.

The “basic rules of the game”: Included here are the relevant laws, rules, and regulations, accepted modes of procedure, and concepts of fair play that help form and guide official behavior and to which officials are expected to con- form. Public opinion and group pressures may focus adversely on officials who violate the rules of the game, as by appearing or proposing not to enforce a statutory provision or by enticing persons to violate a law so that they can be prosecuted. Officials who are overly zealous in enforcing laws, who cite com- panies for too many minor violations of health or safety standards, may be seen as unreasonable zealots. Adverse executive or legislative action may stem from such criticism.

The chief executive: Most administrative agencies are located within the presi- dential chain of command or are otherwise subject to presidential control and direction in such matters as top-level personnel appointments, budget rec- ommendations, expenditure controls, and policy directives. The presidential chain of command includes agencies and officials in the Executive Office of the President and top-level political appointees (e.g., secretaries and assistant secretaries) in the departments and agencies. Control and direction are much more likely to emanate from those who work for the president than from the president himself. Those who act for the president may or may not always act according to his or her preferences. There is sometimes suspicion, for example, that White House aides “go into business for themselves.” Presidents in recent decades seem not to have spent much time mulling over the operations of administrative agencies. Perhaps they should have.

The courts: Agencies may be strongly affected by the judiciary’s use of its powers of judicial review and statutory interpretation. Agencies may have their statutory authority expanded or shorn by judicial interpretation, or their decisions may be overruled because improper procedures were em- ployed in making them. OSHA and the Federal Trade Commission (FTC) have often had their actions challenged in the courts. Other agencies, such as the Federal Reserve Board (FRB) and the Bureau of the Mint, have little contact with the courts because their operations do not give rise to issues of the sort normally handled by the judiciary. The greater the likelihood of challenges in the courts of agency actions, the more influence lawyers have in shaping agency actions.

The congressional system of oversight: This supervisory system includes the standing committees and subcommittees, their chairs, committee staffs, and influential members of Congress. Congressional concern and influence is fragmented and sporadic rather than monolithic and continuous. It flows from parts of Congress, rarely from Congress as a whole, and focuses mostly on specific issues or controversies. Professional staff members handle much of the day-to-day congressional communication with agencies and may develop close working relationships with agency officials.

Other administrative agencies: Agencies with competing or overlapping juris- dictions may affect one another’s operations. In drug-law enforcement, the Drug Enforcement Administration, the U.S. Coast Guard, the Customs Service, and other agencies have engaged in turf battles and competed for recognition and credit in making drug busts, sometimes appearing to lose sight of their main task.41 Water agencies such as the Army Corps of Engineers and the Bureau of Reclamation (BOR) have also been rivals for the right to control and construct water projects. Occasionally, an agency may aspire to take over a program of another agency, and may succeed. Thus, the Department of Labor acquired the Job Corps program, which was initially run by the Office of Economic Oppottunity. Agency imperialism, however, is not as rampant as some commentators imply.42 Agencies sometimes do not want to take on new programs, especially if they are likely to be difficult to administer.

Moreover, agencies need to be cautious about intruding on the “organiza- tional heartland” of other agencies—the programs or responsibilities they view as essential to their missions and well-being.43 The U.S. Fish and Wildlife Service risks doing this when enforcing the Endangered Species Act to prevent habitat destruction threatening the survival of species by actions of the Corps of Engineers or the Forest Service.

Some agencies may form cooperative relationships, as have the FTC and the Antitrust Division of the Department of Justice in antitrust enforcement. An agency may even refuse to take a program from another agency. Stuart Udall, secretary of the interior during the Johnson administration, relates that he offered to give the Bureau of Indian Affairs Indian-education program to the Department of Health, Education, and Welfare so that its secretary, John Gardner, would have his own school system to run. Gardner refused the offer.44

Other governments: State, municipal, and county governments, school districts, and associations of state and local officials (such as the National League of Cities) may attempt to influence a national agency’s decisions. Associations of state highway officials are much interested in the activities of the Federal Highway Administration. The EPA encounters quite a lot of pressure, criticism, and resistance from state and local governments and their environmental agencies in developing and implementing standards for pollu- tion control. The effectiveness of many national programs depends upon how they are implemented by state and local agencies, which provide such governments with some leverage over their conduct. The No Child Left Behind Act is a case in point.

Interest groups: The group context differs considerably from one agency to another. Some agencies—the Forest Service and the Food and Drug Administration (FDA) are examples—attract the attention of many groups, some supportive and others hostile. Buffeted by opposition, such agencies may move more cautiously than others that deal primarily with one group, such as the Department of Veterans Affairs. No matter what the FDA’s decision is on an important issue, some groups probably will be sufficiently offended as to launch a judicial or legislative challenge. Other agencies—for instance, the Inter-American Foundation and the Railroad Retirement Board—experience few group pressures.

Agencies often actively seek group support (or consent) to increase the size, ease, or effectiveness of their operations. Advisory groups may be created, pre- sentations made at group meetings by agency officials, and program modifica- tions initiated in the quest for support.

Political parties: The role of the party organizations has declined in recent decades with the extension of merit systems of hiring to most agency per- sonnel. Appointments to top-level agency positions, however, still may be in- fluenced by considerations of party welfare and policy orientation. Because only a majority of the members of an independent regulatory commission can belong to the same political party, party affiliation is an explicit consideration in these appointments. Some agency actions may be influenced by an urge to enhance party success at the polls, as when the Reagan administration expanded the availability of agricultural loans in the months prior to the 1986 congressional elections.

Communications media: Beyond their use as forums for pressure groups, politi- cal parties, and others trying to influence an agency’s action, the mass-communications media have an independent role. The media may play an important part in shaping public opinion toward an agency by revealing and publicizing its actions, favorably or unfavorably. For decades, the Federal Bureau of Investigation was quite well treated by the press, although its problems in recent years have caused a decline in its support. In contrast, the political lives of the IRS and the Bureau of Alcohol, Tobacco, Firearms, and Explosives have been made more difficult by the battering they have received in the media. Also, it should be noted that agencies scrutinize the media in order to acquire information about the public and its preferences.

Specialized media, too, mostly journals, newspapers, newsletters, and websites, inform their clients and other interested persons about the operations of agencies or programs. These are increasingly more important for many agencies than are the more general media. This would be true of the Agricultural Marketing Service and the U.S. Fish and Wildlife Service. Field and Stream and Outdoor Life provide their readers with a particular slant on the U.S. Fish and Wildlife Service. So do local outdoors editors.

Each of the forces sketched here is multiple rather than monolithic. Conflicting viewpoints may be held by members in the same category as well as by those in different ones. Thus, a number of political forces may impinge on an agency, pushing and pulling against each other with varying intensity, and growing and ebbing. Agencies, of course, are not simply sitting ducks but rather will try to shape, influence, and mollify the forces in their environment. Pressure relationships between an agency and those who seek to influence it are therefore usually reciprocal.

The field of forces surrounding an agency (as shown in Figure 6.3) will be drawn from the preceding categories and will form the constituency of the agency, that is, “any group, body, or interest to which [an administrator] looks for aid or guidance, or which seeks to establish itself as so important [in his or her judgment] that he [or she] ‘had better’ take account of its preferences even if he [or she] is averse to those preferences.”45

The concept of constituency is broader than that of clientele, which comprises the reasonably distinct set of individuals and groups directly served or regulated by an agency. Thus, savings and loan associations were the clientele of the Office of Thrift Supervision; its constituency comprised a broader set of forces or stakeholders concerned with its operations. The OTC was abolished in 2010 for being too “chummy” with savings and loan associations.

The constituency of an agency is dynamic rather than static. Some con- stituents will be concerned with the agency only as certain issues arise or are settled; others will be more or less continually involved and will compose the stable core of the agency’s constituency. The stable core of the Food Safety and Inspection Service (FSIS) in the Department of Agriculture includes commercial meat- and poultry-processing companies, the congressional Agriculture Committees, and the relevant appropriations subcommittees. The chief executive, the FDA, the communications media, and consumer groups are intermittently involved with the FSIS. All other things being equal, the constituents who continually interact with an agency are likely to have the most success in influencing the agency’s action.

The character of an agency’s constituency will affect its power relations and capacity to make policy decisions and carry those decisions into effect. The relationship of an agency to one part of its constituency will partially depend on the kinds of relationships it has with other parts. For example, an agency with strong presidential support can afford to be less responsive to pressure groups than an agency without such support. On the other hand, strong congressional and group support may lessen presidential influence, as with the Army Corps of Engineers.46 An agency encountering criticism from state and local government officials may find that its congressional support also wanes as a consequence. As a general rule, an agency’s policymaking and implementation activities will reflect the interests supported by the dominant elements within its constituency, whether they are hostile or supportive.

An agency’s clientele is an important component of its constituency. Some agencies benefit from large, active clienteles. This is true for the Social Security Administration, the Small Business Administration, and some units within the Department of Agriculture. But size alone is not enough. Consumers are a vast group, but because they tend to be poorly organized and lack self-consciousness as a group, they provide little support to consumer agencies such as the FDA and the Consumer Product Safety Commission. If the FDA has been unduly respon- sive to food and drug manufacturers, as some allege, it is partly because it lacks consumer support and partly because the agency both needs the manufacturers’ cooperation in the administration of its programs and encounters organized pressure from them.

Some agencies have underprivileged or disadvantaged clientele; the Legal Services Corporation, the Federal Bureau of Prisons, and most welfare agen- cies fit in here. These clienteles will not be able to provide much help politically. Thus the Office of Economic Opportunity was hampered in administering poverty programs because its clientele, the poor and especially the black poor, were not a strong source of political support. An agency with a two-party clientele, such as the NLRB, whose clientele includes labor union and management groups, may be able to maintain some independence by playing one off against the other.

Agencies implementing distributive programs that provide services usu- ally elicit more support from their clientele than do regulatory agencies. Most people obviously prefer receiving benefits to being restricted or controlled. An agency with a foreign clientele (the Agency for International Development is an example) can draw little usable political support from its clientele. The lack of a domestic clientele has clearly been disadvantageous for the foreign-aid program. It has been a prime target for budget reductions.

Examining an agency’s constituency and clientele can provide insight into, and explanation of, why an agency acts as it does. It should not, however, be assumed that an agency is an inert force at the mercy of its constituency or the dominant elements therein. Because of their expertise, organizational spirit, or administrative statecraft, agencies can exert some independent control over events and help determine the scope of their power.47

Any bureaucratic agency has some expertise in the performance of its assigned tasks, whether these entail garbage collection, killing predators, regulating banks, or the conduct of diplomatic relations. All bureaucratic skills, however, do not receive equal deference from society. Agencies whose expertise derives from the natural and physical (“hard”) sciences will receive more deference than those drawing from the social sciences, which are less highly regarded in society. Compare, for example, the situations of NASA and the National Cancer Institute with the Census Bureau and the Economic Research Service (U.S. Department of Agriculture). Considerable deference is shown to the military as “specialists in violence,” and Congress often defers to the judgment of the Department of Defense and the Joint Chiefs of Staff in military and defense policy. Professional diplomats (“cookie pushers in striped pants”), on the other hand, no longer receive the deference in foreign policy that they once did. Power based on expertise may fluctuate as conditions and attitudes change.

Some agencies are more capable than others of generating interest in, and enthusiasm and commitment for, their programs from both their own members and the public. This condition is designated organizational esprit. It depends upon an agency’s capacity to develop “an appropriate ideology or sense of mission, both as a method of binding outsiders to the agency and as a technique for intensifying its employees’ loyalty to its purposes.”48 The Marine Corps, Peace Corps, Forest Service, and EPA are served with considerable fervor and commitment by their members. Other agencies have displayed much zeal in their early years, only to ease into bureaucratic routines and stodginess as the years slip by. This decline has weakened some of the national independent regulatory commissions.

Leadership, or the ability Professor Francis E. Rourke calls “administrative statecraft,”49 can also enhance an agency’s power and effectiveness. A government agency’s leadership, like that in all organizations, is situational, being shaped significantly by factors in the environment other than the leaders themselves. Nevertheless, leadership can still significantly influence the agency’s operation and success. Some agency leaders are more effective than others in dealing with outside interest groups, cultivating congressional committees, opening the organization to new ideas, and communicating a sense of purpose to its personnel. The mid-1980s revitalization of the EPA following its decline in the early years of the Reagan administration was aided by the able leader- ship of William Ruckelshaus and Lee Thomas as successive administrators.

Under the leadership of Paul Volcker, Alan Greenspan, and Ben Bernanke, the FRB carried the major burden in stabilizing the economy for more than two decades. In the early 2000s, however, Greenspan kept interest rates low and believed financial institutions would regulate themselves (which they did not). This contributed to the nation’s financial crisis. Greenspan later acknowledged that he had been wrong about self-regulation.

Administrative Policymaking

As we saw in Chapter 3, “Policy Formation: Problems, Agendas, and Formulation,” administrative agencies frequently participate in policymaking at the legislative stage. Here our analytical lens shifts to the administrative arena, where administrative officials have the capacity to make decisions that shape policy and are subject to influences radiating from their clientele and constituencies. Something of a role reversal occurs for legislators, who now act not as decision-makers but as potential influencers of decisions. Agency policymakers—political appointees and upper-level civil servants—occupy positions that convey discretion to them in the direction of the agency and its programs.

Tension often exists between the civil servants—possessed of long service and experience in agency affairs—and political appointees who represent the victorious political party and sometimes manifest a desire to make substantial alterations in agency activities, but who lack knowledge about the agency and its policies. Both differ greatly from the lower-level agency personnel a citi- zen is most likely to encounter—those selling stamps, guiding tours at national parks, handling customs matters at international airports, or processing Social Security documents. For these lower-level personnel, the line between politics and administration remains fairly distinct. In this section, two aspects of agency policymaking are examined: the char- acteristics of agency decision-making and the processes by which an agency can develop policy. It is well to keep in mind here the distinction between a decision and a policy.

Decision-making

Hierarchy is of central importance in agency decision- making. Although in legislatures each member has an equal vote, if not equal influence, within agencies those at upper levels have more authority over final decisions than the occupants of lower levels. To be sure, factors such as decen- tralization of authority, responsiveness of subunits to outside forces (such as pressure groups), and participation by professionals in administrative activity may work against hierarchical authority, but hierarchy should nonetheless not be underestimated. Complexity, size, and the desire for economical operation and more control over the bureaucratic apparatus all contribute to the development of hierarchical authority. Also, compliance with hierarchical authority is one of the rules of the game that organization members generally accept.

As for its consequences for decision-making, hierarchy provides a means by which discrete decisions can be coordinated and conflicts among officials at lower levels in the agency can be resolved. Hierarchy also means that those at upper levels have a larger voice in agency decisions because of their higher status and authority, even though lower-level officials may have more substan- tive qualifications and information. A separation of power and knowledge may thus threaten the rationality of administrative decisions.50 Hierarchy can also adversely affect the free flow of ideas and information in an organization; sub- ordinates may hesitate to advance proposals they think might run counter to “official” policy or antagonize their superiors. Few want to carry the message that causes the messenger to be shot.

Low visibility is another important feature of another important feature of administrative decision- making. Compared with that of legislatures, administrative decision-making is a relatively invisible part of government. Agencies may hold public hear- ings, issue press releases, and the like, but they exercise much control over the information that becomes available about their internal deliberations and decisions. Much of what they do is little noticed by the public or reported by the media. This invisibility can contribute to the effectiveness of decisions by providing a congenial environment for presenting and discussing policy pro- posals that might otherwise be avoided as publicly unpopular.

Deliberations by Kennedy administration officials during the Cuban missile crisis were more effective because they were private, or closed.51 Additionally, low visibility may facilitate the bargaining and compromise often necessary to reach decisions and take action because officials find it easier to move away from pri- vately stated than from publicly stated positions. On the other hand, privacy in administrative deliberation could mean that some pertinent facts are not considered and that significant interests are not consulted. Though secrecy contributed to the effectiveness of the Cuban missile crisis decisions, it had the opposite effect with regard to the Bay of Pigs invasion debacle in the previous year.

Low visibility is, on the whole, more a part of administrative delibera- tions in foreign and defense policy than in domestic matters.52 In the latter area, confidentiality has been reduced by legislation designed to open the admin- istrative process to greater public participation and scrutiny. The Freedom of In- formation Act provides a procedure for extracting documents and records from agencies, and the Government in the Sunshine Act requires most plural-headed agencies to open their decision-making sessions to the public.

Administrative agencies constitute “a governmental habitat in which expertise finds a wealth of opportunity to exert itself and to influence policy.”53 Agencies clearly are affected by political considerations, including the wish to protect their own power, in making decisions. Thus, the Department of Commerce is unlikely to make policy decisions that sharply conflict with important business interests. Nor is the Tennessee Valley Authority inclined to ignore major economic interests in its region. Agencies nonetheless do provide a context within which experts and professionals, official and private, can work on policy problems.

Scientific and technical considerations and professional advice are important factors in most administrative decision-making. Whether it is the Federal Aviation Agency considering the adoption of a rule on aircraft safety, the FDA acting on the safety of implanted medical devices, or the secretary of labor confronting a major choice on job-training programs, each needs good information on the technical feasibility of proposed alternatives. Decisions that are made without adequate consideration of their technical aspects or that conflict with strong professional advice may turn out to be faulty on both technical and political grounds.

Professional and scientific advice is not always sound, however. In 1976, following the identification of a few cases of influenza at Fort Dix, New Jersey, public-health officials decided that the nation was confronted with the possibility of a swine-flu epidemic similar to one that had killed 500,000 people in the United States in 1918. Acting on their advice, the Ford administration decided to initiate a costly nationwide immunization campaign. The flu epidemic never came, however, and the entire venture became a policy fiasco.54

Finally, administrative decision-making is very frequently characterized by bargaining. Experts and facts are important in administrative decision- making, but so also are accommodation and compromise. Some agencies may be less apt to engage in bargaining than others. Decisions from the National Institute of Standards and Technology and the Patent and Trademark Office are primarily expert findings based on factual records. Economic regulatory agencies, such as the Securities and Exchange Commission and the EPA, often find it necessary to bargain with those whom they regulate. In setting emission standards, the EPA has had to bargain with both polluters and state and local officials to reach tolerable decisions and help secure compliance. Another no- table example of bargaining involves the consent decrees used by the Antitrust Division of the Department of Justice to close most civil antitrust cases. Negotiated beyond public view by representatives of the division and the alleged offender, the consent decree states that the division will drop its formal proceedings in turn for the alleged offender’s agreement to stop practices such as price- fixing or acquisition of a competitor. Negotiations with other countries for tariff reductions also illustrate bargaining, in this instance with foreign officials.55

Patterns of policy making

Administrative agencies engage in a wide range of activi- ties and make multitudes of decisions as they administer the laws within their jurisdiction. (Some of these activities or techniques are discussed in the next section.) Out of this welter of activ- ity, four patterns can be identified and designated as policymaking because of the ways in which they help define the content and thrust of public policies. These patterns are rule-making, adjudication, law-enforcement practices, and program operations.

Rule-making: The Administrative Procedure Act defines a rule as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” Substantive rules fill in the details of general statutory provisions and have the force and effect of law. Interpretive rules indicate how an agency views or interprets the laws that it enforces and the meaning it gives to statutory terms such as discriminate, small business, or an appropriate education. Procedural rules describe an agency’s organization and how it will conduct its various activities. In practice, it is not always easy to distinguish these types of rules, or to separate them from informal statements of agency policy or practical ways easy to distinguish these types of rules, or to separate them from informal statements of agency policy or practice.56

Congress has delegated rule-making authority to a large number of administrative agencies. Thus, the Securities and Exchange Commission is authorized to make rules governing the stock exchanges “as it deems necessary in the public interest or for the protection of investors.” OSHA is empowered to make rules setting health and safety standards for workplaces. In the case of toxic substances, OSHA is directed to set the standard “which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no worker suffers material impairment of health,” even when exposed to a toxic substance over the course of a working career. The conditions embed- ded in this delegation reflect compromises made during the legislative process. They leave the meaning of the law vague and the agency uncertain as to what is required to meet the standard. Rule-making, which is one of the primary instruments of government in the United States, is the part of the administrative process that most resembles the legislative process.57 Most frequently it takes the form of informal, or notice and comment, rule-making. The procedural requirements governing informal rule-making are set for forth by the Administrative Procedure Act (Section 553):

1. A notice of proposed rule-making (NPRM) must be published in the Federal Register that specifies the legal authority for the rule, the terms or substance of the proposed rule, and the time, place, and nature of the public rule-making proceeding.

2. An opportunity must be provided for interested persons to participate in the rule-making, through either oral or written comments. For controversial rules, agencies will often choose to hold hearings. Although a hearing rarely changes anyone’s mind on a proposed rule, it serves to educate the public and permits a more extensive record of public participation to be compiled. This can help the agency if the rule is challenged in the courts.58

3. A concise statement of the rule’s “basis and purpose” must be included with the final rule. In the preamble to a rule, the agency indicates the information, data, and analyses that it relied on in developing the rule. Also, the number and nature of public comments, the issues that they raised, and actions taken (or not taken) by the agency in response may be detailed. The preambles to rules often exceed the actual rules in length.59

4. The final rule must be published at least thirty days before it becomes effective. These requirements are intended to provide for fairness in rule-making, which includes furnishing those interested in or affected by a rule with an opportunity to participate in its development and perhaps influence its content. (In actuality, most final rules differ little from their proposed form.)

These requirements are intended to provide for fairness in rule-making, which includes furnishing those interested in or affected by a rule with an opportunity to participate in its development and perhaps influence its content. (In actuality, most final rules differ little from their proposed form.)

In some instances, agencies are required by statutes to follow more de- tailed and stringent procedures in rule-making actions (see Figure 6.4). Thus, if a statute specifies that rules must be based on a formal record, then an agency, in making a rule, must hold a trial-type hearing, follow rigorous procedures, allow legal representation and cross examination of witnesses, and base its rule on “substantial evidence in the record.” The comparable standard for rules emanating from informal proceedings is that they must not constitute an “arbitrary or capricious abuse of discretion.” This is yet another of the mushy standards that one encounters in the policy world.

In addition to the Administrative Procedure Act, some other statutes impose procedural requirements on rule-making agencies. If a rule has a sig- nificant impact on the environment, the National Environmental Policy Act requires the agency to prepare an environmental impact statement. Should small businesses be disproportionately affected, the Regulatory Flexibility Act requires the agency to take steps to reduce a rule’s impact on them. If a rule necessitates the collection of information from the public, then the Paperwork Reduction Act applies. OMB approval is needed to ensure that the information collection does not impose an unnecessary burden on the public. These various requirements complicate and slow the rule-making process. And, as law-school dean Cornelius Kerwin notes:

Our legislators enact programs of regulation or social welfare but then en- cumber them with procedural requirements that will almost certainly stall their implementation. This simply confirms that political decision making is multidimensional. The combination of an aggressive and ambitious substan- tive mission combined with a cautious and painstaking process of imple- mentation can satisfy different sets of constituents.6

In addition to legislative requirements, beginning in the early 1980s, presiden- tial executive orders have required agencies (other than independent regulatory commissions) to submit proposed rules rated as significant or major to the Office of Information and Regulatory Affairs (OIRA) for cost–benefit analysis. OIRA gets a few “whacks” at such rules and can delay their issuance if it decides they do not pass cost–benefit muster. (See the discussion of CBA in Chapter 7, “Policy Impact, Evaluation, and Change.”)

A variety of factors may initiate the agency rule-making process. A few are noted here. The Dodd-Frank Act directed the Bureau of Consumer Financial Protection, the Commodity Future Trading Commission, and other agencies to make hundreds of rules spelling out the law’s provisions. Pressure groups may lobby for agency action and, moreover, use litigation to back up their demands. Legal action by the Center for Biological Diversity has caused the U.S. Fish and Wildlife Service to list scores of species as endangered. Agency research and enforcement experience may identify problems to be dealt with by rules. During the George W. Bush administration, the OIRA occasionally issued “prompt letters” to encourage rule-making on some topic or to give it higher priority. Some sort of crisis or accident also may generate rule- making. Presidential directives and recommendations from Congressional committees or federal advisory committees are other possibilities.

Notwithstanding the procedural and other obstacles that they encounter, national administrative agencies issue thousands of rules annually. These range from those that are of small moment and short duration—such as some Agricultural Marketing Service rules on the quality of fruits and vegetables— to those that impose major costs and affect large numbers of people—such as EPA rules on air quality and hazardous-waste disposal. Collectively, these rules, which daily are reported in in the Federal Register, are much larger in volume than the legislation enacted by Congress. Agency rules are codified in the Code of Federal Regulations.

Adjudication: Agencies can make policy when they apply existing laws or rules to particular situations by case-to-case decision-making. In so doing, they act in much the same manner as courts, just as they act in legislative fashion when engaged in rule-making. In the past, the FTC made policy by applying the legislative prohibition of unfair methods of competition to specific cases. These cases gradually marked out public policy and by induction indicated the kinds of practices banned by the general prohibition. An agency also may make policy when it gives an interpretation to a statutory provision in applying it in a case. The NLRB, which administers labor-management relations legislation, makes and announces statutory interpretations in deciding unfair-practice cases, which then inform its action in future cases. NLRB opinions on such matters as what constitutes “good faith” in collective bargaining become policy statements of importance to union and company officials.

Agencies frequently choose to make policy by adjudication, even though they have rule-making authority. This is true for the NLRB, for instance. (They may be authorized, but not required, to engage in rule-making.) An agency may find it no easier than a legislature to reach a decision on the content of general pol- icy, especially in a novel or highly controversial situation. Consequently, it can choose to proceed in a more piecemeal or incremental manner. Those affected by agency action, however, may be left in the dark as to what policy is supposed to be when it is made case by case. And indeed, agencies have been criticized for relying too much on adjudication and too little on rule-making as they develop policy.61

Much of the adjudication that administrative agencies engage in is infor- mal or routine, such as the hundreds of thousands of decisions made annually by the Department of Veterans Affairs and the Social Security Administration on applications for benefits. Still, within the framework of statutory language, seemingly routine decisions may shift the direction or skew the effect of policy.

Law enforcement: Agencies may also mold policy through their various law- enforcement actions. A statute may be enforced vigorously or even rigidly, in a lax manner, or not at all; it may be applied in some situations and not in others, or to some persons or companies and not to others. Everyone is familiar with the discretion exercised by the police officer on the beat or, what is more likely, in the patrol car. A ticket may be given to a speeder, or only a warning may be issued. If no drivers are ticketed unless they exceed posted speed limits by a specific rate, this choice amounts to an amendment of public policy. Even when statutory provisions are quite precise, thus seeming to eliminate discretion in their interpretation, enforcement officers still have some discretion with respect to the manner in which they will be enforced.

Policy may be shaped by administrative inaction or apathy as well as by an agency’s positive action and zeal. Inaction often adversely affects only the inarticulate or inattentive general public and consequently may pass unnoticed. In 1936, Congress enacted the Robinson-Patman Act to protect small retail- ers against price discrimination by large competitors such as chain stores and discount houses. Economists have long criticized the law as a barrier to price competition. During the past decade or two, both the FTC and the Antitrust Division of the Department of Justice, under whose jurisdiction the Robinson- Patman Act falls, have ceased to enforce it. Some question exists as to whether agencies should be able to ignore a law in this manner.

A second example involves the Reclamation Act of 1902, which authorized a massive irrigation program to encourage agricultural development in the western states. The land that a farmer could irrigate with low-cost water from federally constructed reservoirs was limited to 160 acres, or 320 acres for a farmer and spouse. Further, they were required to live on or near their land. For many decades these restrictions, which were clearly spelled out in the law, were not enforced by the BOR. As a consequence, much of the below- market-cost water from federal reclamation projects was provided to large farms, often owned by corporations, encompassing thousands of acres. Many were (and are) located in California’s Central Valley. These large landholders were strong supporters of BOR’s reinterpretation of the law.62

Pressure by environmentalists and organizations representing small farm- ers finally induced Congress in 1982 to pass the Reclamation Reform Act. The irrigation limit was increased to 960 acres and the residency requirement was repealed. Large landholders then created “farming trusts” to manage suppos- edly separate units not subject to the 960 acre cap. Collectively they far exceed it. Still intransigent, the BOR has continued to acquiesce in this subterfuge.63 In this instance, as well as that of the Robinson-Patman Act, one encounters agency nullification of legislative policy. What becomes of the rule of law? In addition to the attitudes and motives of its officials, external pressures, and financial resources, an agency’s capacity to carry out policies will be significantly affected by the enforcement authority and techniques available to it. Opponents unable to block legislative enactment of a law may seek to blunt its impact by handicapping its enforcement. Take the equal employment opportunity provisions in Title 7 of the Civil Rights Act of 1964, which prohibit firms or unions represent- ing fifteen or more employees from discriminating against individuals because of their race, color, religion, national origin, or sex. Along with the other titles in the act, these provisions were adopted over strong conservative opposition.

The EEOC was authorized to enforce the law through investigations, con- ferences, and conciliation, which means essentially voluntary action. If these methods failed, the EEOC could recommend civil action in the federal court, which required cooperation by the Department of Justice to prosecute cases. Moreover, the law provided that the EEOC could not act on complaints from states that had an antidiscrimination law and an agency to enforce it, unless the state agency was unable to complete action within sixty days. Complaints had to be filed “in writing under oath,” which is an unusual requirement for a law-violation complaint. This stipulation undoubtedly had a chilling effect on many southern blacks and others. Whatever the intent behind these pro- visions, they clearly limited the law’s effectiveness by making the successful completion of cases a slow, tedious process.

After 1964, the EEOC and many supporters of stronger enforcement ad- vocated giving the agency authority to issue cease-and-desist orders64 in dis- crimination cases and then to seek, on its own initiative, their enforcement in the federal courts. Opposition to this proposed change was particularly strong from conservatives and southerners. The EEOC was eventually empowered to bring court action on its own initiative but not to issue cease-and-desist orders when the conciliation of complaints was not successful. Though perhaps not as much as hoped, this new authority did help strengthen the enforcement and effectiveness of the anti-job-discrimination policy.

Program operations: Many agencies administer loan, grant, benefit, insur- ance, and service policies and programs, or engage in the management of public properties such as forests, parks, and hydroelectric plants. Although these activities are not usually thought of as law enforcement because they are not designed directly to regulate or shape people’s behavior, they are often of much importance to many people. How such programs are implemented helps determine policy both directly and indirectly. Some examples will provide clarification.