Executive Branch Agencies Research Articles

The End of Chevron Deference and its Impact on the Energy Industry

As is currently well known, on June 28 the U.S. Supreme Court overturned the Chevron Deference, a key foundation of modern administrative law for 40 years. The case, Loper Bright Enterprises v. Raimondo (Loper Bright), had nothing to do with energy, but the impact of the decision has significant implications in the energy arena. The order follows a steady drumbeat of U.S. Supreme Court decisions issued during this term and in recent prior ones curbing the regulatory enforcement capabilities of Executive Branch agencies. But while this is a landmark case and would be expected to lead to a host of new legal challenges to agency rules and actions, its practical effect might result in being more nuanced, maybe with some wholly unexpected consequences.

Lobbying venue selection under separation of powers and resource constraints

Prior work examines how organization resources and types shape venue selection strategies. Both Congress and executive branch agencies can change policy, so interest groups must consider which of these venues to lobby on a given issue. We argue that factors in the political environment—venues’ issue priorities and the power of groups’ allies in a venue—influence how groups with different resource constraints select lobbying venues. Examining over one million issue-level lobbying disclosures filed between 2008 and 2016, we find that low-resource groups strategically lobby the venue(s) controlled by partisan allies and respond to the government’s and public’s issue priorities. Meanwhile, high-resource groups more often lobby all venues relevant to their issues regardless of the political environment, especially on issues gaining significant attention within government but not in the public. Our findings suggest that separation of powers provides high-resource groups more venues to lobby for favored policies. Conversely, low-resource groups strategically only lobby venues they have the potential to influence.

Identifying bureaus with substantial personnel change during the Trump administration: A Bayesian approach.

Presidents and executive branch agencies often have adversarial relationships. Early accounts suggest that these antagonisms may have been deeper and broader under President Trump than under any recent President. Yet careful appraisals have sometimes shown that claims about what President Trump has done to government and politics are over-stated, require greater nuance, or are just plain wrong. In this article, we use federal employment records from the Office of Personnel Management to examine rates of entry and exit at agencies across the executive branch during President Trump's term. A key challenge in this endeavor is that agencies vary in size dramatically, and this variability makes direct comparisons of rates of entry and exit across agencies problematic. Small agencies are overrepresented among agencies with large and small rates. Yet small agencies do important work and cannot simply be ignored. To address such small-area issues, we use a Bayesian hierarchical model to generate size-adjusted rates that better reflect the fundamental uncertainty about what is happening in small agencies as well as the substantial likelihood that these entities are less unusual than raw statistics imply. Our analysis of these adjusted rates leads to three key findings. First, total employment at the end of the Trump administration was largely unchanged from where it began in January of 2017. Second, this aggregate stability masks significant variation across departments, with immigration-focused bureaus and veterans-affairs bureaus growing significantly and certain civil-rights focused bureaus exhibiting signs of stress. Finally, compared to the first terms of Presidents Bush and Obama, separation rates under President Trump were markedly higher for most agencies.

"The Houston Plan": an Unrealized Project of Interaction between American Intelligence Agencies in the Early 1970s

An article based on recently declassified documents from the U. S. National Security Archive reveals the so-called “Houston Plan”. Prepared by the White House and U. S. intelligence officials, it envisioned a range of covert operations from surveillance of political radicals and criminal organizations (such as the Black Panthers) to breaking into the offices of social organizations suspected of disloyalty. The plan, named after Tom Charles Houston, a young White House liaison to the Interagency Intelligence Committee (IIC), played a role in the impeachment of President Richard Nixon by providing evidence of his abuses of the FBI and other executive branch agencies.

Exploring the role of R&D collaborations and non-patent IP policies in government technology transfer performance: Evidence from U.S. federal agencies (1999-2016).

Around the world, governments make substantial investments in public sector research and development (R&D) entities and activities to generate major scientific and technical advances that may catalyze long-term economic growth. Institutions ranging from the Chinese Academy of Sciences to the French National Centre for Scientific Research to the Helmholtz Association of German Research Centers conduct basic and applied R&D to create commercially valuable knowledge that supports the innovation goals of their respective government sponsors. Globally, the single largest public sector R&D sponsor is the U.S. federal government. In 2019 alone, the U.S. government allocated over $14.9 billion to federally funded research and development centers (FFRDCs), also known as national labs. However, little is known about how federal agencies’ utilization of FFRDCs, their modes of R&D collaboration, and their adoption of non-patent intellectual property (IP) policies (copyright protection and materials transfer agreements) affect agency-level performance in technology transfer. In particular, the lack of standardized metrics for quantitatively evaluating government entities’ effectiveness in managing innovation is a critical unresolved issue. We address this issue by conducting exploratory empirical analyses of federal agencies’ innovation management activities using both supply-side (filing ratio, transfer rate, and licensing success rate) and demand-side (licensing income and portfolio exclusivity) outcome metrics. We find economically significant effects of external R&D collaborations and non-patent IP policies on the technology transfer performance of 10 major federal executive branch agencies (fiscal years 1999–2016). We discuss the scholarly, managerial, and policy implications for ongoing and future evaluations of technology transfer at federal labs. We offer new insights and guidance on how critical differences in federal agencies’ interpretation and implementation of their R&D management practices in pursuit of their respective missions affect their technology transfer performance outcomes. We generalize key findings to address the broader innovation processes of public sector R&D entities worldwide.

Exposing the Revolving Door in Executive Branch Agencies

We develop the first comprehensive mapping of the revolving door phenomenon in the U.S. by examining the work experience in executive branch agencies of 1,910,150 individuals covering top corporate positions in 373,011 unique firms. We document that the phenomenon is prevalent, with one out of every 15 firms, and one out of every three publicly traded firms, having at least one top employee with prior work experience in U.S. executive branch agencies. On average, former regulators are hired in response to or concomitant with increases in regulation as well as concomitant with more aggressive regulator behavior in the form of a higher incidence of fines. Firms headquartered in more corrupt states, firms seemingly more corruption-prone, and established violators receive benefits in the form of a reduction in the incidence of fines after hiring former regulators from fine-imposing agencies. In contrast, we do not observe other firms receiving benefits on average.

К ВОПРОСУ О ПОРТРЕТЕ ИНВАЛИДА В СМИ

The article presents the results of a study of the features of coverage of events involving disabled people in modern Russian media. The data obtained are considered in four perspectives: the reflection of socio-demographic characteristics of the disabled in the media, the main topics covered by publications with the participation of disabled people, the activity of disabled people described by the media, the general emotional coloring of news articles about people with disabilities. The article is based on the results of content analysis of news articles published in the period from December 2020 to August 2021 in RBC, RIA Novosti, Rossiyskaya Gazeta, TASS, Izvestia. The analysis showed that the image of a disabled person broadcast in the media is poorly differentiated with respect to socio-demographic parameters and health characteristics, leaving out of consideration the diversity of material living conditions and the social situation of people with disabilities. Basic needs are prevalent in the description of disabled people, while creative and spiritual ones are leveled. The media articles are dominated by paternalistic attitudes in characterizing the disabled: they need protection and assistance provided by the executive branch and law enforcement agencies. Despite a sufficiently high social activity, a disabled person turns out to be an object of action that has no identity.

Food Loss Waste in the United States Food Supply Chain: An Analysis of Its Functions, Oversight, and Recent Impacts from the Coronavirus Pandemic

Government oversight of the food supply chain consists of a complicated regulatory framework involving multiple executive branch agencies, congressional committees, and state governments. The agencies primarily involved with food safety issues are the Food and Drug Administration (FDA), the Food Safety and Inspection Service (FSIS), the US Department of Agriculture (USDA), the Environmental Protection Agency (EPA), and the National Marine Fisheries Service (NMFS). Although the above entities divide responsibility for different aspects of food safety and quality, according to a 2019 Government Accountability Office (GAO) report, the patchwork of statutes and regulations has led to “inconsistent oversight, ineffective coordination, and inefficient use of resources.”

Calidad democrática en Argentina. Un análisis sobre cómo la rendición de cuentas horizontal impacta en la vida de las personas con discapacidad

Argentina tiene políticas públicas nacionales para el colectivo con discapacidad. En particular, analizamos el diseño e implementación de las políticas para garantizar la accesibilidad física en el transporte y la inclusión laboral en el ámbito público, a través del cupo laboral del 4% para trabajadoras y trabajadores con discapacidad. Sin embargo, la mera implementación de estas políticas no ha resultado suficiente para alcanzar las soluciones esperadas. Para lograr una transformación real se necesita el compromiso de los gobiernos, la disponibilidad de recursos que asigna el Parlamento y, también, el funcionamiento de los organismos de control, que tienen a cargo la misión de asegurar que las políticas se implementen correctamente y los derechos se respeten. En otras palabras, desde la perspectiva de la rendición de cuentas horizontal de Guillermo O’Donnell, indagamos sobre la relación entre las dificultades de la implementación de las políticas públicas con la tarea de contralor de organismos del Poder Ejecutivo, el control parlamentario del Legislativo y el control del cumplimiento de las normas que dispone la Justicia.

Appointee vacancies in US executive branch agencies

AbstractWe analyse United States presidential appointee positions subject to Senate confirmation without a confirmed appointee in office. These “vacant” positions are byproducts of American constitutional design, shaped by the interplay of institutional politics. Using a novel dataset, we analyse appointee vacancies across executive branch departments and single-headed agencies from 1989 to 2013. We develop a theoretical model that uncovers the dynamics of vacancy onset and length. We then specify an empirical model and report results highlighting both position and principal–agent relations as critical to the politics of appointee vacancies. Conditional on high status positions reducing the frequency and duration of vacancies, we find important principal–agent considerations from a separation of powers perspective. Appointee positions in agencies ideologically divergent from the relevant Senate committee chair are vacant for less time than in ideologically proximal agencies. Importantly, this relationship strengthens as agency ideology diverges away from the chair and towards the chair’s party extreme.

Between the Agency and the Court: Ex Ante Review of Regulations

Abstract Administrative regulations are an important tool of modern government, but their legitimacy is often questioned since they are adopted by the executive branch rather than the legislature. Judicial review of the legality of regulations is necessary but not sufficient as an accountability mechanism because judicial review is subject to many practical and legal shortcomings, especially including its high cost. Consequently, the vast majority of regulations are never subject to judicial review, which creates an accountability deficit. This deficit can be remedied through ex ante administrative review of the legality of regulations by an executive branch agency that is independent of the adopting agency. This Article evaluates executive branch ex ante legality review schemes in California, Chile, Israel, and France. Although these regulatory review schemes vary greatly, each of them scrutinizes the substantive and procedural legality of regulations (as distinguished from their economic or environmental effect or their political acceptability). This review takes place before the regulations are judicially reviewed and before they become effective. Ex ante administrative review can compensate for the failings of judicial review, promote the rule of law, and enhance the legitimacy of the regulatory process.

The Office of Information and Regulatory Affairs and the durability of regulatory oversight in the United States

AbstractThe U.S. Office of Information and Regulatory Affairs (OIRA) is responsible for reviewing executive branch agencies' draft proposed and final regulations, coordinating the federal government's regulatory agenda, approving government collections of information from the public, and developing and overseeing the implementation of government‐wide policies related to information policy, information quality, peer review, privacy, statistical policy, and international regulatory cooperation. While some of those functions are statutorily granted, others—notably those related to regulatory policy—derive from presidential executive orders. Since U.S. presidents can, and do, rescind their predecessors' executive orders with ease, it is striking that these regulatory oversight functions, and the economics‐based framework underlying them, have not changed significantly through six very different presidential transitions. This article reflects on OIRA's evolution over the almost 40 years since the Paperwork Reduction Act created it in 1980 to understand what has made it so durable. It finds that regardless of their philosophy, presidents need an entity like OIRA to address the principal‐agent problem they face in managing the disparate agencies within the executive branch. The OIRA career staff responsible for bringing coherence to regulatory policies across the government provide analytical expertise and institutional knowledge that complement the actions of political actors in the White House. The article concludes with recommendations for allowing OIRA's roles and practices to evolve while retaining the core functions that have received bipartisan support.

Artificial Intelligence Will Merely Kill Us, Not Take Our Jobs

A prominent recent development in governance of artificial intelligence is the White House Office of Management and Budget’s 2020 Guidance for Regulation of Artificial Intelligence Applications (Federal Register Doc. 2020–00261, Filed 1–10–20), directed at heads of federal executive branch agencies, in fulfillment of Trump E.O. 13859 and building upon it. While the directive strikes the right tone in some instances, it opens the door to federal agencies too widely for oversight. Top-down federal funding and governance of scientific and technology research will be increasingly incompatible with a future of lightly regulated science and technology specifically, and with limited government generally. First is the the lack of concern that a key driver of investment and in turn trajectory of the sector is military and intelligence-based. Not to be flip about it, but when it comes to robotics and military, the concern is that Isaac Asimov’s widely famous but fictional Laws of Robotics (devised to forbid the harm of humans) are programmed out, not in. This is a part of what makes fusion of big government and private AI deployment problematic at the outset. Second is the insufficient appreciation of the extent to which the broader progressive regulatory bureaucracy at which the guidance is aimed holds a vision of “rule of law” entirely at odds from a more classical liberal frame of reference. Today’s administrative state has its own set of value pursuits and visions, of what are costs and what are benefits, and the sources of each. Make no mistake, the new AI guidance constitutes a set of regulatory principles rather than laissez-faire, property rights based principles, especially as they will be interpreted by less market-oriented administrations that later assume the helm and the agencies they direct. The White House guidance invites agencies to “consider whether a change in regulatory policy is needed due to the adoption of AI applications in an already regulated industry, or due to the development of substantially new industries facilitated by AI.” Unless externally restrained, a regulatory bureaucracy’s inclination is to answer the question, “Is there call for regulation?” in the affirmative, and this guidance does not restrain that impulse but adds to it. For example: Agencies are instructed to produce “Statutory Authorities Directing or Authorizing Agency Regulation of AI Applications” and to “List and describe any statutes that direct or authorize your agency to issue regulations specifically on the development and use of AI applications.” But no statutory definition of AI even existed at the time any such supposed predicates came to be. The guidance is favorable toward antitrust regulation. The guidance invites social policy regulatory experimentation. The guidance may undermine simultaneous reforms from the Trump administration to restrain the overuse of these very sort of sub-regulatory guidance measures to influence the private sector. Given public policy fears, real and imagined, over artificial intelligence, it is an area ripe for political predation. While big science need not entail big government; the alignment of forces in play at the moment implies that it likely will.

A German Miracle? Crisis Management During the COVID-19 Pandemic in a Multi-Level System

Germany has attracted much attention for its success in coping with the immediate health effects of the COVID-19 pandemic , keeping the rate of infection and death from the virus low compared to most other large Western countries, such as the United States, Great Britain, France, Italy, and Spain. In this contribution, we discuss Germany’s “exceptional performance”, beginning with an overview of the policy responses of the German governments at the federal and state (Bundesland) level. We then ask: To what extent did the COVID-19 crisis in Germany shift power to the executive branch? And did the crisis lead to a centralization of decision making --- a shift from the state and local level to the national level? We see no evidence of centralization; if anything, state-level autonomy with respect to health policy, business regulation, and education policy became more apparent during the pandemic. Executive branch agencies have dominated the crisis response, but we see little evidence of lasting changes in the distribution of power.

Seventy-Three Patent Practitioners, Comment Letter on Setting and Adjusting Patent Fees During Fiscal Year 2020, 84 Fed. Reg. 37398 (Jul. 31, 2019)

In September 2019, seventy-three patent practitioners cooperatively authored a comment letter on the Patent and Trademark Office's fee-setting proposal of July 2019. We are deeply troubled by several aspects of this proposal: • The PTO is an executive branch agency, not a private-sector company. The PTO is subject to many laws that are not recognized in the proposal. Various elements of this proposal violate laws that are not discussed. • There are a number of plain errors in the factual statements and rationale for the DOCX proposal, the annual practitioner fee proposal, and several of the “Rulemaking Considerations” sections. • The costs of several of the proposed rules are substantial; yet the only discussion is “The Office did not identify any monetized costs and benefits of the proposed rule, but found that the proposed rule has … no identified costs.” This sentence implies more about the quality of the Office’s analysis than it does about the merits of the proposed rules. This letter identifies dozens of costs that were not accounted for as required by various statutes.

Regulatory Oversight and Benefit-Cost Analysis: A Historical Perspective

The Office of Information and Regulatory Affairs (OIRA) in the Executive Office of the President coordinates the federal government’s regulatory agenda, reviews executive branch agencies’ draft regulations, and oversees government-wide information quality, peer review, privacy, and statistical policies. Remarkably, its regulatory oversight functions, and the benefit-cost framework underlying them, have not changed significantly through six very different presidential administrations. This article examines the evolution of executive regulatory oversight and analysis from the 1970s to today, exploring the reasons for its durability and whether the current imposition of a regulatory budget challenges the bipartisan nature of regulatory practice.

Today's Crusades: A Therapeutic Jurisprudential Critique of Faith-Based Civil Rights in Health Care

During the Crusades, Pope Gregory VII encouraged action against a demonized population, those practicing Islam, in the name of faith. Today, an important leader, the President of the United States, acting through Executive Branch agencies, supports discrimination against transgendered individuals in the name of faith with the same fervor. Two such attempts within health care provide opportunities for reflection and correction. Most recently, HHS has proposed eliminating protections for transgendered individuals in regulations guiding enforcement of section 1557 of the ACA, which was enacted to ensure that no American should have to endure discrimination on the basis of race, color, national origin, disability, age, or sex in the provision of health care. The HHS also has promulgated a final rule that purports to permit health care providers, without qualification, to refuse to provide many services to not only this population but also several other vulnerable groups based on religious beliefs. This Article demonstrates that the Administration’s animosity toward medical care for transgendered individuals is psychologically anti-therapeutic and reduces the quality of medical care that population receives, resulting in a public health crisis. First, the Article will review the Administration’s relevant rulemaking activities and the controversy surrounding them, focusing on the discrimination that the regulations encourage against transgendered individuals. Second, it will explore the psychological effects (and some of the relevant physical health considerations) of such discrimination on the patients affected. Finally, it will apply therapeutic jurisprudence principles to demonstrate how accounting for the psychological impact of discrimination by incorporating medical ethics into conscience clause enforcement would better serve individuals’ and the public’s health. These Crusades must stop.

Who Isn’t Running American Government: Appointee Vacancies in U.S. Executive Branch Agencies

We analyze presidential appointee positions subject to Senate-confirmation (PAS) without a confirmed appointee in office. These “vacant” positions are byproducts of American constitutional design, shaped by the interplay of institutional politics. Using a novel data-set, we analyze PAS vacancies across executive branch departments and single-headed agencies between January 1989 and January 2013. We develop a theoretical model in order to uncover the dynamics of vacancy onset and length. We then specify an empirical model and report results highlighting both position and principal-agent relations as critical to the politics of appointee vacancies. We find high-status PAS positions reduce the frequency and duration of vacancies. However, conditional on this and consistent with our theoretical model, we also find important principal-agent considerations from a separation of powers perspective, as vacant PAS positions in agencies ideologically divergent to the Senate majority are vacant for less time than in ideologically congruent agencies.

Statutory delegation, agency authority, and the asymmetry of impact analysis

ABSTRACTRequirements for regulatory impact analysis in the United States vary greatly. Executive branch regulatory agencies in the United States are required to conduct regulatory impact analysis before issuing regulations, and statutes sometimes require agencies to conduct some economic analysis. But when Congress considers legislation that mandates prescriptive regulations, legislators are under no obligation to conduct or even consider impact analysis. This paper documents the diverse degrees of discretionary authority Congress grants US executive branch agencies. It then presents a case study that systematically compares the quality of impact analysis that informed legislative and regulatory decisions on positive train control, a technology mandated by statute in 2008. The legislation was adopted with virtually no consideration of impact analysis. Given that major regulations are often required by statute, we conclude that regulatory legislation should be subject to the same kinds of impact analysis that US presidents have required regulatory agencies to conduct for almost four decades. Congress could develop this capability by creating a regulatory analysis division of the Congressional Budget Office (CBO) to evaluate the social benefits and costs of bills, similar to the way CBO scores the federal budgetary consequences of bills.

The Influence of Corporate Lobbying on Federal Contracting

ObjectiveCorporations spend significant resources lobbying for billions of dollars in federal procurement contracts, yet this important opportunity to assess the political influence of business has gone unstudied by scholars of business politics. We study it here.MethodsWe approach it by analyzing the influence of direct lobbying of five federal departments, along with data on the lobbying of, and campaign contributions to, members of Congress on patterns of contract awards broken out by congressional districts.ResultsOur analysis reveals that while there are many reasons to expect lobbying Congress to produce valuable contracts, we instead find that it is the direct lobbying of executive branch agencies that is most likely to bring big rewards.ConclusionThese results highlight the importance of studying corporate political power outside of the legislative branch, suggesting that it is the long‐term relationships that lobbyists build with bureaucrats that yield the most lucrative contracts.