Despite what most of the public may think, the vast majority of policymaking by the federal government comes in the form of rules and regulations rather than through new laws. Using the 2010 Affordable Care Act as a case study, Simon F. Haeder and Susan Webb Yackee write that the move from law-based to regulatory policymaking has given Democratic and Republican presidents alike unprecedented powers that often do not need to take into account the views of Congress

Haeder, Simon F.

Webb Yackee, Susan

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LSE Research Online

While	Congress	sits	on	its	hands,	Presidents	aremaking	policy	by	regulationDespite	what	most	of	the	public	may	think,	the	vast	majority	of	policymaking	by	thefederal	government	comes	in	the	form	of	rules	and	regulations	rather	than	through	newlaws.	Using	the	2010	Affordable	Care	Act	as	a	case	study,	Simon	F.	Haeder	and	SusanWebb	Yackee	write	that	the	move	from	law-based	to	regulatory	policymaking	has	givenDemocratic	and	Republican	presidents	alike	unprecedented	powers	that	often	do	notneed	to	take	into	account	the	views	of	Congress.In	the	middle	of	a	global	pandemic,	the	political	campaign	season	is	heating	up	in	the	United	States.	In	JunePresident	Trump	held	a	much-criticized	rally	in	Tulsa,	Oklahoma,	and	the	American	airwaves	are	saturated	withcampaign	advertising	by	both	presidential	candidates.Of	course,	the	US	House	of	Representatives	and	Senate	are	also	up	for	grabs	in	the	November	elections.	At	thistime,	predictions	put	the	presidency	in	the	Democratic	column,	with	the	House	remaining	that	way,	while	the(currently	GOP-held)	Senate	appears	to	be	on	a	knife’s	edge	with	different	forecasts	putting	it	in	Republican	orDemocratic	hands	or,	even,	a	tie.	Thus,	even	if	the	Democrats	were	to	win	the	Senate,	they	would	not	come	closeto	holding	a	filibuster-proof	majority	of	60	in	2021.So,	what	does	this	mean	for	a	potential	Democratic	President	Joe	Biden	and	the	Democrats’	ability	to	shapepolicymaking	after	they	enter	the	White	House?	Would	Joe	Biden	be	a	lame	duck	from	the	very	start?	Alternatively,should	President	Trump	pull	off	a	victory,	what	does	this	mean	for	his	policy	ambitions	if	the	Republicans	continuewith	a	Congress	where	at	least	one	house	of	the	legislature	is	of	a	different	party?Such	questions	may	produce	predictions	of	policy	gridlock.	Yet,	things	might	not	be	as	dire	as	some	may	think,which	we	detail	in	our	new	work.	While	major	law-based	accomplishments	might	elude	a	president	facing	dividedgovernment	(or	lacking	a	filibuster-proof	majority	in	the	Senate),	all	presidents	have	one	important	policy	instrumentat	his/her	disposal	to	shape	American	public	policy:	“rulemaking.”Rulemaking:	Policymaking	by	Administrative	MeansFor	most	casual	observers	(and	many	political	scientists),	American	policymaking	takes	place	primarily	in	theCongress.	Yet,	a	closer	look	at	policy	change	over	the	last	few	decades	paints	a	starkly	different	picture.	Everyyear,	federal	government	departments	and	agencies	pump	out	tens	of	thousands	of	pages	of	regulations	that	carrythe	weight	of	law.	By	one	estimate,	9	out	of	10	US	“policies”	are	the	result	of	administrative	agency	actions.	This“massive	policy	output	created	by	public	sector	administrative	agencies”	has	led	some	observers	of	the	US	policy-making	process	to	conclude	that	policy	making	today	is	primarily	administrative	rather	than	legislative.	Yet,	notably,much	this	activity	occurs	outside	the	public’s	and	the	media’s	attention.Rulemaking	as	a	Presidential	Policymaking	ToolWhile	regulation	has	emerged	as	the	primary	form	of	policymaking	in	the	United	States	in	general,	this	particularlyholds	true	for	the	Affordable	Care	Act	(ACA)—President	Obama’s	signature	legislative	achievement,	which	passedin	2010.	As	we	note	in	our	recent	article	the	statutory	text	of	the	ACA	references	the	word	“secretary”	more	than3,000	times	to	refer	to	11	different	cabinet	agency	secretaries.	Many	if	not	most	of	these	references	are	devolvingpolicymaking	authority	to	the	government	bureaucracy.USApp – American Politics and Policy Blog: While Congress sits on its hands, Presidents are making policy by regulation Page 1 of 3		Date originally posted: 2020-07-27Permalink: https://blogs.lse.ac.uk/usappblog/2020/07/27/while-congress-sits-on-its-hands-presidents-are-making-policy-by-regulation/Blog homepage: https://blogs.lse.ac.uk/usappblog/‘President	Trump	Signs	an	EO	on	Healthcare	Transparency‘	by	The	White	House	is	Public	DomainWhile	the	vast	regulatory	potential	of	the	ACA	is	readily	apparent	in	its	text,	the	true	reach	becomes	apparent	whenlooking	at	the	actual	regulatory	record.	By	the	end	of	2019,	ACA-derived	rulemakings	combined	for	a	regulatorypolicy	length	of	almost	9,000	pages	or	more	than	nine	million	words.	This	compares	to	the	law’s	length	of	just	961pages	or	474,622	words.	As	a	result,	each	page	in	the	ACA	is	matched	by	more	than	9	pages	of	regulations,	whileeach	word	in	the	ACA	is	matched	by	more	than	19	words	in	regulations.	For	those	interested,	the	busiest	regulatorswere	the	US	Departments	of	Health	and	Human	Services	with	roughly	two-thirds	of	all	rules,	and	the	Departmentsof	Treasury	with	17	percent	and	Labor	with	11	percent.Yet,	the	extent	of	ACA	rulemaking	is	only	part	of	the	story.	We	use	two	case	studies	to	illustrate,	the	shift	fromlegislative	to	administrative	policymaking	has	also	endowed	presidents	with	significant	unilateral	powers	to	shapepolicies​	largely	without	the	input	from	congressional	statute	writers	and,	sometimes,	in	direct	opposition	tocongressional	preferences.Our	case	studies	focus	on	two	hotly	contested	issues:	contraception	coverage	for	women	and	short-term	limitedduration	insurance	plans.With	regards	to	former,	the	Obama	Administration	had	sought	to	walk	the	tightrope	of	expanding	contraceptioncoverage	to	most	American	women	while	also	not	offending	the	millions	of	Americans	that	objected	tocontraception	as	a	result	of	their	religious	beliefs.	Yet,	the	issue	remained	unresolved	as	the	Trump	Administrationentered	office	in	2017.	Once	in	office,	the	new	administration	abruptly	changed	course—relying	on	interim	finalrules—to	provide	much	more	flexibility	to	employers	on	religious	and	moral	grounds.	This	“course	correction”	hasjust	recently	been	validated	by	the	US	Supreme	Court.Our	second	case	study	focused	on	short-term	limited	duration	insurance	plans.	Seeking	to	avoid	adverse	selectionand	offer	stability	to	the	nascent	Affordable	Care	Act	insurance	marketplaces,	the	Obama	Administration	strictlycurtailed	the	availability	of	these	types	of	plans.	Once	again,	the	Trump	Administration	reversed	course	and	madethese	plans	much	more	available.	In	doing	so,	the	Trump	Administration	fundamentally	changed	the	orientation	ofthe	underlying	public	policy.	As	with	the	contraception	issue,	the	Trump	Administration	found	support	for	theiractions	in	front	of	the	courts.Implications	for	US	PolicymakingUSApp – American Politics and Policy Blog: While Congress sits on its hands, Presidents are making policy by regulation Page 2 of 3		Date originally posted: 2020-07-27Permalink: https://blogs.lse.ac.uk/usappblog/2020/07/27/while-congress-sits-on-its-hands-presidents-are-making-policy-by-regulation/Blog homepage: https://blogs.lse.ac.uk/usappblog/While	we	have	focused	on	the	Affordable	Care	Act,	opportunities	for	presidential	policymaking	via	regulationsinherently	emerge	from	almost	every	statute	Congress	passes.	And	for	good	reason.	Congress	does	not	have	theexpertise	or	resources	to	hash	out	all	policy	details	in	legislative	statutes.	Indeed,	specificity	would	also	makecompromise	and	bill	passage	much	more	challenging,	if	not	impossible,	because	much	of	the	ambiguity	needed	tobring	congressional	lawmakers	on	board	would	be	eliminated.In	a	time	of	congressional	gridlock,	many	would	say	that	the	ability	to	move	policy	along	is	crucial	to	keep	thecountry	functioning.	For	now,	vague	congressional	delegation	and	vast	regulatory	powers	in	the	hands	of	thepresident	is	a	key	way	that	policymaking	continues.	But	policymaking	via	rulemaking	also	has	its	drawbacks.	As	wehighlight,	two	different	presidential	administrations	can	propose—and	deliver—two	diametrically	opposed	ways	toimplement	the	same	congressional	statute.	As	a	result,	the	Affordable	Care	Act’s	regulatory	implementation	overthe	last	decade	provides	a	cautionary	tale	regarding	the	role	that	congressional	delegation	plays	within	the	USpolicymaking	process.	This	article	is	based	on	the	paper	‘A	Look	Under	the	Hood:	Regulatory	Policy	Making	and	the	Affordable	CareAct’	in	the	Journal	of	Health	Policy,	Politics	and	Law.Please	read	our	comments	policy	before	commenting.Note:	This	article	gives	the	views	of	the	author,	and	not	the	position	of	USAPP	–	American	Politics	and	Policy,	northe	London	School	of	Economics.Shortened	URL	for	this	post:	https://bit.ly/3jMjNB1About	the	authorsSimon	F.	Haeder	–	Pennsylvania	State	UniversitySimon	F.	Haeder	is	an	assistant	professor	in	the	School	of	Public	Policy	at	Pennsylvania	StateUniversity.	He	also	is	a	fellow	in	the	Interdisciplinary	Research	Leaders	(IRL)	program,	a	nationalleadership	development	program	supported	by	the	Robert	Wood	Johnson	Foundation.	He	also	waspart	of	the	inaugural	cohort	of	the	American	Enterprise	Institute’s	Emerging	Poverty	Scholarsprogram.	sfh5482@psu.eduSusan	Webb	Yackee	–	University	of	Wisconsin–MadisonSusan	Webb	Yackee	is	the	Collins-Bascom	Professor	of	public	affairs	and	political	science	and	isdirector	of	the	La	Follette	School	of	Public	Affairs	at	the	University	of	Wisconsin–Madison.	Herresearch	interests	include	the	US	public	policy-making	process,	public	management,	regulation,	andinterest-group	politics.	She	received	the	2019	Herbert	A.	Simon	Career	Award	from	the	Midwest	PublicAdministration	Caucus.USApp – American Politics and Policy Blog: While Congress sits on its hands, Presidents are making policy by regulation Page 3 of 3		Date originally posted: 2020-07-27Permalink: https://blogs.lse.ac.uk/usappblog/2020/07/27/while-congress-sits-on-its-hands-presidents-are-making-policy-by-regulation/Blog homepage: https://blogs.lse.ac.uk/usappblog/

While Congress sits on its hands, presidents are making policy by regulation

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While Congress sits on its hands, presidents are making policy by regulation

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