Deference To Administrative Agencies Motivated By Pure Politics

April 9th, 2014

One of the core tenets of administrative law  is that courts should defer to the determinations of expert, non-partisan agencies, that make decisions for the common good, and not based on partisan decisions. How is this presumption maintained when it becomes abundantly clear that these determinations are made for purely partisan reasons? I’m not asking how current case law treats it–the answer is to look the other way. My point is more meta. Why do we continue to labor under these false pretenses. A few recent episodes brings this issue to mind.

First, and foremost, is Obamacare. The various decisions made by HHS in the implementation, and delays of Obamacare, have been made by the White House to minimize the brunt of Obamacare till after the election. There is no other way to explain the precarious manner in which different waivers and extensions have been timed.

How do we know this? Treasury Department officials have testified that the White House made the decision to delay the individual mandate.

“Information obtained by the Committee suggests that last year’s decision to delay the employer mandate was made by the White House and not the Treasury Department,” the letter continues. “We were surprised to learn that the White House Chief of Staff knew about the employer mandate delay prior to the head of the department implementing the program. This finding raises serious questions about whether the White House directed the delay of the employer mandate for political reasons.” …
Issa cited testimony from Treasury Assistant Secretary for Tax Policy Mark Mazur, who in an interview with Oversight said repeatedly he couldn’t recall if anyone at Treasury discussed whether the agency had the legal authority to delay the mandate.

“These admissions are stunning: there are more than two thousand attorneys in the Department of Treasury, and the official responsible for tax policy cannot recall a single one inquiring into the legal authority for the employer mandate delay,” the letter says. “Furthermore, Mr. Mazur’s responses are inconsistent with the Department’s claim that it relied upon an asserted authority under § 7805 of the Internal Revenue Code.”

In fact, a Treasury Official even testified that the Treasury Department never even analyzed if the government had the legal authority to do so!

A Treasury Department official testified Tuesday that the department never analyzed whether it has the legal authority to delay the Affordable Care Act’s individual mandate because officials concluded ahead of time that such a delay would harm individuals.

At a Ways and Means Health subcommittee hearing, Rep. Kevin Brady (R-Texas) asked Deputy Assistant Secretary Kevin Iwry more than five times if department officials believed they had the authority to delay the individual mandate the way they did the employer mandate.

“If we don’t believe it is appropriate to be delaying that provision, if we believe it is fair to individuals to keep that in place because it protects them … then we don’t reach the question whether we have legal authority,” Iwry said.

Treasury argues that employers needed more time to comply with the mandate because of the complexities of the law. Individuals who can’t afford insurance can apply for Medicare or premium subsidies, or if they can’t pay the penalty associated with the mandate, can apply for a hardship exemption, Iwry said

The Attorney General, who said DOJ provided guidance, would also not explain the basis of this authority.

Second, there are many, many stories floating about how the government delays rulemaking until after elections. The very essence of the administrative process–notice and comment–is subject to these kinds of partisan games. In December, the Washington Post reported on the White House delaying rulemaking, specifically from the EPA, till after 2012 election. Recently the Post also reported that Democratic Senators in tough reelections were actually making requests to the White House to alter administrative actions.

Sen. Mark Begich has said repeatedly that he thinks President Obama is wrong about a host of policies, whether on oil drilling, the military or the environment. Begich also has made it perfectly clear that he has no interest in having his fellow Democrat out to his home state of Alaska, saying this year that he doesn’t “care to have him campaign for me.”

But that doesn’t mean he’s not looking for the president’s help. Begich has, in fact, submitted a long wish list to the Obama administration for agency decisions that he thinks would boost his reelection chances. Other Democrats have done so, too. …

Sometimes, though, the requests set up a difficult dynamic for the administration, which must decide between helping vulnerable Democrats and going against broader goals. Many of Begich’s requests, for example, would allow for more oil drilling at the expense of disturbing environmentally sensitive areas.

In some cases, the senators get what they want; in others, not so much. Begich named four issues that the administration has delivered on for Alaska, including allowing snowmobiles in pristine locales and loosening environmental regulations on gasoline, but he can name several more that have not been resolved.

If you believe this White House spokesperson who claims the process is not political, I have a bridge to sell you:

Administration officials stressed that decisions are not political calculations. Lawmakers are advised on how to make strong cases to particular agencies, officials said, but the decisions are made through a complicated process aimed at preventing an overly politicized bureaucracy.

“These types of decisions are ultimately made on the merits,” said Eric Schultz, a White House spokesman. “Our legislative affairs staff work to keep lawmakers appropriately informed about agency-level decision-making, but the underlying determinations are based on substantive criteria and decided by respective policy specialists.”

None of this is to suggest that courts should invalidate administrative actions. Rather, I would reconsider the level of broad deference given to these agencies, which are acting in manners inconsistent with how administrative law views them.