Evading Public and Congressional Review of Agency Policy Statements

Abstract

Between 1946-2002, Congress passed no fewer than five statutes intended to ensure that federal agencies’ statements of policy were quickly and permanently available in print and then accessible online for ongoing public and Congressional review. Moreover, in 2007, the White House’s Office of Management and Budget issued a directive reiterating that agencies should publish and immediately post online all significant new policy statements and other guidance.

Yet despite these rules and public reaffirmations of the value of “transparency” and sunshine in government, this Article examines the available data from the last seventeen years and reveals a darker picture of federal agencies that are increasingly less likely to publish their new policy statements for public review or submit them to Congress for its review. These failures were exemplified in several recent high-profile cases involving health care reform, death penalty drugs, and sexual orientation discrimination, where agencies in both Democratic and Republican administrations attempted to alter key law enforcement policies while evading statutory mandates for public and congressional review. Such practices raise troubling questions about democratic accountability across the government — should Congress and the voting public be forced to depend on newspaper reporters fortunate enough to stumble upon these policy changes months or years after their implementation?

This Article studies and explains the failures of prior efforts to publicize and regularize administrative policymaking, and offers suggestions on what Congress, the public, and the agencies themselves can (or should) do to remedy these issues.

Keywords: policy statements, FOIA, Administrative Procedure Act, Congressional Review Act, appropriations, transparency