Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Conclusion

In an era in which governmental controls invade every sphere of human activity, from economic to cultural and political, administrative responsibility is essential to the maintenance of the democratic system. Administration which is responsible is lacking in the elements of bad faith, arbitrariness, or capriciousness. It constitutes a reasoned effort, in good faith, to approximate the legislative intent.

Congress is one important source of oversight of administration. Its effectiveness in performing this role is a function of (a) the adequacy of its tools, and the skill, conscience, and sustained interest of the members in wielding them, and (b) the standards it applies in measuring the adequacy of administrative action.

Experience in this area indicates that Congress is more imaginative in fashioning tools for checking and influencing the administration of delegated powers than it is skillful and determined in employing them to hold administrators to clearly defined standards of performance.

The national legislature has attempted to employ reporting devices and the concurrent resolution to influence, enable or require executive action, to terminate or suspend the conditions authorizing it, or to restrict the application of programs to specified groups. Not infrequently it has made the exercise of delegated powers contingent upon prior congressional approval or disapproval.

With the exception of the last category, however, Congress has not effectively wielded the tool it engineered. The veto resolution has received ample use because the executive automatically initiates congressional review when it invokes the delegated power which is subject to veto. Where Congress must initiate review, the concurrent resolution provisions tend to lie dormant, or congressional action tends to be directed at vindicating sectional interests (revocation of daylight saving time), or direct participation in the framing of administrative decisions, case by case (deportation suspensions).

Perhaps the moral of the story is that we must free congressmen from constituency loyalties and subject them to strict party discipline if we wish to insure that available techniques for the legislative control of administration are effectively employed to serve an interest which is broad and public.

Chapter IX
INTER-AGENCY RELATIONSHIPS

The study of administration proceeds within the framework of a taxonomy of human relationships, the breadth and content of which remain fluid. In large measure, when we speak of law we refer to a socially prescribed and sanctioned taxonomy of human relations. The analysis offered in this chapter is grounded upon the premise that clarification and refinement of a taxonomy of administrative relationships may result from the study of legislative enactments prescribing relationships between administrative agencies. It also reflects the supposition that at a time when the behavioral or human-relations approach to the study of administration is in ascendancy, such a review may provide an essential foundation for the contrasting of formality and actuality which is one of the characteristics of behaviorism.

In the following pages we record and classify various kinds of inter-agency relationship prescribed by statute. We have attempted to employ the inductive approach, permitting the categories and gradations of relationship to emerge from the materials. But we are not unaware of the inevitable intermixture of the a priori.

When fashioning economic regulatory legislation, Congress must heed the complexity of the industrial society to which the controls are to be applied, and of the bureaucracy through which regulation is to be accomplished. It will be possible to realize the legislative purpose only if the active co-operation and help of a wide variety of official agencies and private groups can be enlisted. And these must include the groups to be regulated.[659]

Thus it is not surprising to find, upon examining a large number of emergency regulatory statutes enacted during the last twenty-five years, that they contain many provisions detailing the relationships which should prevail between the administering agencies and other groups, official, semiofficial, or private. Such provisions establish a variety of rights and obligations. They may have the effect of enlarging or constricting the discretion of a particular agency to interpret and pursue legislative policy goals. In the pages which follow we attempt to sort out and categorize such provisions.

The confusing medley of statutory provisions for kinds and gradations of inter-agency relationship is perhaps best reduced to order by invoking the image of three overlapping spheres.

Permissive or mandatory solicitation or receipt or advice of a nonbinding nature
Mandatory performance in accordance with instruction of another agency
Joint pursuit of policy goals by co-ordinate agencies

The center sphere, into which and from which the others spill, represents the kind of inter-agency relationship in which one agency performs a mandatory, nondiscretionary function at the direction or “request” of another. Flowing into it, from the left, is the sphere in which agencies are permitted or compelled to receive advice from, to consult or confer with others, but are under no obligation to follow the advice received. The third sphere is that in which two or more co-ordinate agencies share active responsibility and authority for the pursuit of a common policy goal.

If the interagency relationships provided for by statute are scaled according to the binding quality of the advice received by one agency from another or according to the degree to which two or more agencies share authority and responsibility for program administration subtle nuances of interagency relationship are revealed. Advice received may be purely of an informative and nonbinding nature, or the statute may be so worded as to indicate that “advice” from one agency to another amounts virtually to direction. In the sharing of program authority and responsibility, one agency may perform ministerial functions at the direction or “request” of another, or, at the opposite extreme, interagency personnel, judgment, and resources may be fused toward the accomplishment of a common goal.