The Politics of Agency Enforcement Discretion

Abstract

Accusations of presidential attempts to subvert an agency’s fulfillment of its statutory duties have become a staple of contemporary political discourse. Although White House influence over the most salient form of agency decisionmaking – rulemaking – remains subject to considerable oversight by other institutional actors, administrative agencies possess a variety of policymaking tools beyond rulemaking, including the issuance of policy guidance documents and the strategic exercise of enforcement discretion. The relative weakness of legal and political checks on these alternative tools would appear to create powerful incentives for agencies to channel policies – particularly contested or controversial ones – through particular tools to minimize constraints on executive power. This article evaluates the extent to which this account reflects contemporary agency practice through a case study of the Department of Education’s Office for Civil Rights (OCR). It finds that OCR has employed rulemaking to implement presidential policy preferences only once in the past quarter century, and the rare instances of OCR rulemaking show a judiciary and public eager and able to challenge resultant policies. The agency has been far more reliant on guidance documents to adopt presidential priorities, and these policies have proven immune from judicial attack, although they have been exposed to some public criticism. Most interestingly, OCR appears to effectuate significant policy shifts through the strategic exercise of enforcement discretion and has succeeded in evading any legal or political oversight in doing so, raising significant normative concerns regarding the accountability and legitimacy of such policies. While the importance of OCR’s mission renders this agency worthy of study in its own right, these findings carry broader implications regarding checks to presidential control across the administration state. The article closes by exploring the potential for institutional design reforms to strengthen existing checks on presidential control, focusing in particular on structural reforms to temper politically-motivated enforcement decisions.