Legislation and the Regulatory State

Park Safety Vehicle Act Sec. 1. The Council finds that vehicles create safety problems when operated in parks. The best solution is to ban any and all vehicles from all municipal parks. Sec. 2. No vehicles of any kind shall be allowed in any municipal park. Any person who brings or drives a vehicle into a park shall be guilty of a misdemeanor which may be punished by a fine not exceeding $500 or a two-day jail sentence or both. Sec. 3. “Vehicle” for these purposes means any mechanism for conveying a person from one place to another, including automobiles, trucks, motorcycles, and motor scooters. Provided that, bicycles shall be allowed in parks, so long as they are being pushed or carried and not ridden. What is the purpose of each section? Why bother to define only certain terms? Wouldn’t a dictionary be sufficient? Why not wait for a court to define things? Who else needs to know what the terms mean?

PSVA 2 13-year-old on skateboard Mother pushing baby carriage Six-year-old on tricycle Arguments for each: What about pattern of non-enforcement? What about a Segway?

Overview of Agencies Definition and role of agencies Sources of agency legitimacy and power: Constitution Statute Major agency forms: Executive-Branch Independent Agency staffing: Political appointees Career civil servants

Definition and Role of Agencies What is an agency? Why do we have agencies? List at CB3: why do you think each of these were created? Is it possible to have too many agencies?

Constitutional Role What does Article I say about agencies? What does Article II say about agencies? What does Article III say about agencies?

Constitutional Role 2 What does it mean to say that agencies are “extra-constitutional”? What legitimacy concerns does this raise? Are there any constraints on agency action? http://www.youtube.com/watch?v=gGJ6KV8dIzQ (at 2:20)

Sources of Legitimacy Expertise: Fairness & Rationality: What is “institutional competence”? What is a “systemic perspective”? Fairness & Rationality: What role does Due Process play? What is the APA? Why does the APA impose more detailed requirements on agencies than the Constitution does on the leg and courts? All three articles imply some

Sources of Legitimacy 2 Interest Representation: Does the rule-making process and APA improve democracy? Is the answer different for Executive-Branch vs Independent Agencies? Efficiency and Effectiveness: How would government perform all of its many functions without agencies? Could Congress and the Courts operate without agencies?

Agency Forms Executive-Branch: Independent: Single Administrator (“Secretary”); can be fired by President w/o cause; Cabinet departments but also others; Closer relationship to President; Independent: Multi-member commission or Board removable only “for cause”; Often bi-partisan requirement; FCC, NLRB and SEC are examples

Agency Forms 2: Independent Agencies Why does Congress sometimes create independent agencies? What aspects of independent agencies diminish Presidential Control? http://www.fcc.gov/what-we-do Who else do independent agencies answer to? What similarities are there between Indep and exec branch agencies? Reasons: political and practical From Strauss article: fewer appointments Independent enforcement/litigation authority Fewer oversight controls (OMB approval and OIRA approval) Similarities: function similarly APA applies Civil service is heart of both Organizational principles are the same

Mueller Special Counsel NOT an agency (but a little bit like one); replaced Independent Counsel mechanism; https://www.youtube.com/watch?v=KgZnAuWl5ns (Mueller Special Counsel explanation) § 600.1 Grounds for appointing a Special Counsel.The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Agency Forms 3: Executive-Branch Agencies How do executive-branch agency heads get their jobs? Why should the President to have the power to pick an agency head? How much control should the Senate exercise when approving appointments? http://www.youtube.com/watch?v=1rlScon_Tw8 (Cordray nomination) https://www.youtube.com/watch?v=rSe7UDVRNnE (Sanders grills Pruitt – EPA) NOTE: this slide begins material from CB57-79

Agency Staffing : Losing the Job What reasons might the President remove a political appointee? Are there situations when it is illegitimate to remove a political appointee? https://www.youtube.com/watch?v=jr8yNoXyyb0 (US Atty firings) 14

Agency Staffing 3: Civil Service What is a career civil servant? Why not have all political appointees? Are there potential costs to a career civil service system? http://www.ozarksfirst.com/news/the-difference-between-a-civil-servant-and-a-presidential-cabinet-pick/655237657 http://abcnews.go.com/Politics/deep-state/story?id=47086646 15