In recent weeks, President Barack Obama announced plans to use executive authority to implement immigration reforms in absence of cooperation from Congress. House Speaker John A. Boehner also announced plans to initiate a lawsuit designed to check the president’s power to take unilateral executive actions. Given this tension, it’s a good time to consider how exactly the executive branch is able to implement policy without congressional consent.
The executive branch has many devices at its disposal if it decides to act unilaterally. Indeed, executive branch regulatory agencies evade Congress and other accountability checks seemingly all the time. For instance, agencies issue guidance documents, policy memoranda and other similar documents. Some of these are necessary, but some elicit behavioral changes by the public that look a lot like how regulations work.
To improve the present situation, OIRA needs more resources. The agency’s budget and staffing levels have fallen significantly over time, even as regulatory agency spending continues to swell. OIRA should have the authority to review all guidance documents, policy memos, waivers and other agency publications. It should also be able to require that agencies go through the notice and comment process or produce economic analysis for policies the OIRA administrator believes will have significant economic effects. At the very least, the government should track agency activities in a more transparent manner, so researchers can better assess the extent of the evasion problem.