Executive Memorandum #264
April 26, 1990
HOW CONGRESS IS MAKING THE NEW ENVIRONMENT DEPARTMENT UNCONSTITUTIONALAs the television lights and intense focus on Earth Day recede, the environment question is heating up a classic executive-legislative battle behind the scenes in Washin gton. The issue: who will control the new Department of Environmental Protection? Legislation to elevate the current Environmental Protection Agency (EPA) to a cabinet-level department passed the House of Rep- resentatives on March 28 and is headed for a S enate vote in early May., Contrary to custom and constitutional law, however, the House-passed bill would create an executive branch department firmly under the control of Congress and only nominally responsible to the President. . Section 111 of the Hous e -passed bill would create within the new department a powerful Bureau of Environmental Statistics charged with collecting and analyzing environmental data. Far from simply collecting data, however, the new bureau is empowered to advocate federal en- viron m ental policy totally independent from the direction or approval of the Secretary o the En- vironment or the President. This is unprecedented, argues Representative Frank Horton, the New York Republican, who notes that the bill abandons principles that hav e guided this nation for more than 200 years. A leading proponent of such "good government" laws as the 1978 In- spector General Act and the 1989 Whistleblower Protection Act, Horton charges that the House is "creating an office, the head of which is answe r able to no one, [and whose] work products - in- cluding policy analysis - can be reviewed by no one.... even the Inspector General." Who's In Charge. The bill pointedly excludes the President and the Secretary of the Environ- ment from having control over the Bureau. Instead, all functions "that relate to the gathering, analysis, and dissemination of environmental quality and related public health information" are vested in a newly created Director of Environmental Statistics. The proposed law requires tha t the $75,000 per-year director be a career bureaucrat appointed by the Secretary of the Environ- ment for a term of four years, and removable only for "malfeasance in office, maladministration, or neglect of duty." The meaning: neither the Secretary nor t h e President can fire the director. Congress, by contrast, appears to have given itself adequate control over the director. While it prohibits the President and other executive branch officials from approving or previewing the bureau's reports, the bill re q uires that the director, upon request, shall "make special statistical compilations, surveys, and reports for Committees of the House of Representatives and the Senate" Congress it seems is not creating an executive branch department, nor even an inde- pe ndent agency, but a wholly owned congressional subsidiary that is merely housed within the ex- ecutive branch.
Another way that Congress is seeking to control the new department is by limiting sharply the president's ability to appoint the senior policy staff of the new executive branch department. Sec- tion 103 of the bill, for example, requires that no fewer than two-thirds of the Deputy Assistant Secretaries of the new department "shall be filled by individuals who have at least five years of service i n the Federal civil service." The meaning: non-bureaucrats need not apply. Section 113 imposes an even broader restriction, limiting unrestricted presidential; appointees to no more than 10 percent of the department's total senior executive staff. Althoug h the bill contains a clause that allows limited exceptions, the effect of the prohibition is to. prevent the President from appointing policy makers who support his views. The result: senior. level policy staff of the new department will be more likely to support and respond to Congress than to the President. Non-civil servants appointed by the President to key executive branch policy positions are com- monly referred to as political appointments. Such appointments are very important. They allow a Presiden t to employ a staff that is committed to his policies. Political appointees often come from the private sector where the range of creative thinking is not limited to such solutions as new government regulations or more government spending. Political appoin t ees, moreover, represent a more democratic approach to governing since they usually support the policies that the Presi- dent was elected to pursue. Career civil servants, by contrast, need have no commitment to the President's platform and are not accoun t able to the voters. Buri'aucrats' "True Employers." The notion of non-political bureaucrats is rooted in the dubious notion that politics can and should be separated from the "administration" of govern-' ment. Yet experience has proved that bureaucrats ar e no less political than are presidential ap- pointees. Rather than responding to a particular political party, however, bureaucrats are biased toward protecting and expanding bureaucracy. Bureaucrats quite naturally are most attentive to those who control their budgets: members of Congress and congressional staff. As noted in 77te Imperial Congress "...executive branch bureaucrats will respond to those who can most directly in- fluence their long-term career advancement and prospects. In that sense it is c l ear that the profes- sional bureaucracy of the federal government regards Congress as its true employer." Rather than simply elevating the EPA to a cabinet-level department!- a proposal that was strongly supported by George Bush and a bipartisan majority i n Congress - the House has passed a bill that creates new bureaucracy that once again challenges and probably violates the constitu- tional separation of powers. It is a bureaucracy over which the President has very little control. Warns Representative Ho r ton: "In Eastern Europe, government officials for the first time are be- coming answerable to the people. In the House of Representatives, there seems to be a feeling that we should go the other direction." Bush already has made clear his intention to vet o the bill unless the offending provisions of the House bill are excised. As the bill nears consideration in the Senate, he should articulate his posi- tion to the public and be prepared to make good on his veto threat. Mark B. Liedl Director, U.S. Congres s Assessment Project
For ftirther information: "TheTiff Over EPA," editorial, 77te Washington Post, April 1, 1990. Robert Rector and Michael Sanera, eds., Steering the Elephant. How Washington Works (New York: Universe Books, 1987). Gordon S. Jones and Joh n Mari4 eds., 77se Imperial Congress. Cdsis in the Separation- of Powers. (New York: Pharos Books, 1989).}}