Retrospective Congressional Oversight and the Dynamics of Legislative Influence over the Bureaucracy

Research stresses that congressional committees increase their oversight of the bureaucracy during divided government. We extend this research by developing an explanation, rooted in a more dynamic view of policymaking, for why Congress would sometimes conduct vigorous oversight under unified control as well. In short, committees seem to engage in what we call “retrospective oversight” and take advantage of newly friendly executive administration to refocus existing policy made under a past opposition president. We assess our perspective using two separate sources of data on oversight hearings spanning more than 60 years and find support for our claims regarding retrospective oversight.     

Regulatory Science and the Data Quality Act

The importance of data quality was highlighted in an amendment attached to a 2000 law enacted by the 106th U.S. Congress. The law known as the “Data Quality Act” or the “Information Quality Act,” mandated that the Office of Management and Budget (OMB) issue guidance to federal agencies for “ensuring and maximizing the quality, objectivity, utilility, and integrity of information (including statistical information) disseminated by federal agencies.” In turn, OMB required more than 90 federal agencies such as the United States Environmental Protection Agency (EPA) to implement data quality guidelines. These guidelines have created a rigorous, if not rancorous, debate within the regulated community. This paper will provide a brief synopsis of the evolution of the Act, discuss how the Act and scientific uncertainty interrelate, and review the status of the Act's petition process for correcting government disseminated information.     

Spreading Influence Through Weak Ties: Cosponsorship,Legislative Networks,and Bill Success in Fragmented Congresses

Literature on legislative success tends to focus on independent variables of which lawmakers have scarce control. This article analyzes instead how legislators’ strategies affect their success in Congress. I posit that while weak ties between congresspeople are the most useful in increasing success in the chamber of origin under majoritarian settings, they do not raise the likelihood of bill approval in the second chamber or in plurality‐led legislatures. Building on a data set that contains all bills proposed to the Argentine Congress between 1983 and 2007, results support these context‐dependence hypotheses. I then use data from the Uruguayan Congress (1995–2010) to explore how the argument plays out in a Latin American legislature with weaker gatekeeping rules (i.e., an “open sky” legislature). Findings help gain insight into the strategies used in environments different from that of the widely studied U.S. Congress.     

Regulatory beneficiaries and informal agency policymaking

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to- consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise low-level employees and supply valuable information to regulated entities regarding how an agency will implement a program. Thus far, however, the debate has largely ignored the distinct and substantial interests of regulatory beneficiaries--those who expect to benefit from government regulation of others. Regulatory beneficiaries include, among others, pharmaceutical consumers, environmental users, and workers seeking safe workplaces. When agencies make policy informally, regulatory beneficiaries suffer distinctive losses to their ability to participate in the agency's decision and to invoke judicial review. This Article argues that considering the interests of regulatory beneficiaries strengthens the case for procedural reform. The Article then assesses some possible solutions.     

Current good manufacturing practice regulation and investigational new drugs. Direct final rule

The Food and Drug Administration (FDA) is amending its current good manufacturing practice (CGMP) regulations for human drugs, including biological products, to exempt most investigational "Phase 1" drugs from complying with the requirements in FDA's regulations. FDA will instead exercise oversight of production of these drugs under the agency's general statutory CGMP authority and investigational new drug application (IND) authority. In addition, FDA is making available simultaneously with the publication of this direct final rule, a guidance document setting forth recommendations on approaches to CGMP compliance for the exempted Phase 1 drugs. Elsewhere in this issue of the Federal Register, FDA is publishing a companion proposed rule, under FDA's usual procedure for notice-and-comment rulemaking, to provide a procedural framework to finalize the rule in the event the agency receives any significant adverse comments and withdraws this direct final rule. The companion proposed rule and direct final rule are substantively identical. Elsewhere in this issue of the Federal Register, FDA is announcing the availability of a draft guidance for industry entitled "INDs--Approaches to Complying With CGMP During Phase 1" to provide further guidance on the subject.     

“人大主导立法”原则下的立法体制机制重塑

"人大主导立法"是指在立法中应由人大把握立法方向,决定并引导立法的内容、原则和基本价值取向。"人大主导立法"既是党的重要主张,也已成为一项立法原则,是我国基本立法制度的强力回归。而要贯彻落实"人大主导立法"原则,则需要对我国的立法体制机制的相关方面进行更为科学合理的重塑,包括人大主导立法与党领导立法的关系定位、全国人大与地方人大立法关系机制重塑、人民代表大会与人大常委会立法关系机制重塑、人大与政府立法关系机制重塑以及人大主导立法与公众参与立法关系机制重塑。     

Using Reasonable Efforts Determinations to Improve Systems and Case Practice in Cases Involving Family Violence and Child Maltreatment

The Adoption and Safe Families Act (ASFA) of 1997 reinforced that the safety, permanency, and well‐being of the child should be the primary concerns when making decisions about child protection interventions, child placement, and efforts at reunification. The court's role in oversight of agency practice in individual cases through the requirement of specific judicial findings as a condition of receipt of certain funding was also maintained and strengthened by ASFA. Based on the recognition of the number of cases where there is a co‐occurrence of domestic violence and child maltreatment, there is a need for communities and agencies to set reasonable expectations of good practice for responding to the issues raised. As the community sets the expectations of good practice through agency policy, training, and service delivery, the judiciary, through the findings regarding “continuation in the home” or “reasonable efforts” in each individual case, provides the oversight of practice required by ASFA. This article will explore the current applications of reasonable efforts, discuss ways that courts and communities are defining the concept, and examine the need for the development of a reasonable efforts protocol.     

40 YEARS OF THE RULE OF ADMINISTRATIVE LAW: ENHANCEMENTS,EXPERIENCE, AND EXPECTATIONS

Based on major landmark events and the rule of law development, the administrative rule-of-law construction in China, over 40 years since the initiation of the reform and opening up policy, can be divided into four stages: the “recovery” stage; the “rapid development by focusing on administrative legislation” stage; the “implementing the basic policy of law-based governance of the country and focusing on law-based administration of government” stage; and the “simultaneous advancement and integrated construction in building the rule of law in China” stage. Over the past 40 years, China’s administrative rule-of-law construction has achieved fruitful results in terms of theoretical shaping, system construction, and concept popularization. The future construction of the administrative rule of law should promptly respond to the theoretical needs put forward by state governance, administrative changes, emerging science, and technology development, and it should continue to improve the theoretical system of administrative law with Chinese characteristics; we should strengthen legislation in key areas, solve practical problems in the construction of a government under the rule of law, and promote the effect of law enforcement and system implementation. We should also focus on improving the awareness and qualities of the rule of law at all levels of leading cadres and form a good rule of law atmosphere in the entire society.     

从宪法到普通法:法律文本里的地方立法权流变考

地方立法权的存在和运用必须有明确的宪法、法律依据,此乃法治之基本要求。而根据我国《宪法》之规定,除民族自治地方的人大享有自治条例和单行条例的制定权外,仅授予省、直辖市人大及其常委会以地方性法规制定权。其他地方国家政权机关,包括自治区人大及其常委会,以及"较大的市"的人大及其常委会的地方性法规制定权、地方人民政府的规章制定权等,则是分别通过《地方组织法》、全国人大或其常委会的相关授权决定的方式所获得的,并最终为《立法法》所确认。     

府际结构下领导注意力的议题分配与优先:基于公开批示的分析

注意力成为政策过程研究的关键要素,领导注意力的分配与优先性表达是理解政策变迁与体制运作的新维度。论文通过构建中央-省-市级政府首长的批示文本数据库,比较了府际间领导注意力在政策议题上分配的稳定性和多样性,并检验了议题优先性在中国府际结构中的呈现。研究结果表明:核心议题作为领导注意力焦点对其他议题具有挤出效应即存在议题优先性,并且随着领导层级的降低,其挤出效应愈发显著;府际间领导注意力在议题分配上的稳定性、多样性分别与领导层级呈现出正相关性,这亦与政府职责分工体系特点深刻关联;政治周期变化对于领导注意力变迁具有显著的“间断效应”。论文探索了多层次主体的注意力比较研究,为解释中国体制运作中的“议题优先”及其运作提供了注意力层面的证据。     

Looking for some light through the lens of “cryptowar” history: Policy options for law enforcement authorities against “going dark”

As companies and end-users increasingly deploy end-to-end encryption, law enforcement and national security agencies claim they “go dark”, i.e. lose in practice the power to legally intercept and gain access to information and communications. This has revived a debate that seemed closed by the late 1990s, namely whether backdoors should be embedded in encryption systems. This paper provides a historical overview of the policy debates surrounding encryption, to identify the potential regulatory options for policy-makers, based on the lessons that can be learned from “cryptowar” history. We discuss the First Cryptowars (1990s, focusing on backdoor schemes), the Interbellum (featuring a rise in powers to order decryption), the Second Cryptowars (2010s, renewed backdoor discussions) and their aftermath: the newly emerging battlefield of legal hacking. The latter can be seen as a condition for the truce with which – for now – the Cryptowars seem to have ended. Cryptowar history teaches us that the two main policy options for decryption by government agencies – ensuring access to keys ex ante (backdoors) or ex post (decryption orders) – both suffer from fundamental flaws. Therefore, legal hacking powers – if human rights standards are sufficiently taken into account – could be the only realistic policy option to preserve some light in an era of dark communication channels.     

Opioid drugs in maintenance and detoxification treatment of opiate addiction; Substance Abuse and Mental Health Services Administration, HHS. Final rule

The Department of Health and Human Services and the Substance Abuse and Mental Health Services Administration (SAMHSA) are issuing final regulations for the use of narcotic drugs in maintenance and detoxification treatment of opioid addiction. This final rule repeals the existing narcotic treatment regulations enforced by the Food and Drug Administration (FDA), and creates a new regulatory system based on an accreditation model. In addition, this final rule shifts administrative responsibility and oversight from FDA to SAMHSA. This rulemaking initiative follows a study by the Institute of Medicine (IOM) and reflects recommendations by the IOM and several other entities to improve opioid addiction treatment by allowing for increased medical judgment in treatment.     

The progressive policy shift in the debate on the international tax challenges of the digital economy: A “Pretext” for overhaul of the international tax regime?

This contribution presents a critical overview of the policy and legal debate (primarily from a tax treaty law perspective) surrounding the challenges raised by the digitalisation of the economy for the international tax regime. The article addresses some key policy challenges inherent in the proposals for reform currently under consideration. It focuses in particular on the difficulties associated with fitting the concept of “value creation” within the pre-existing framework based on “source” and “residence”; a gradual transition from a primarily “supply” approach to a “supply and demand” approach in the understanding of “source”; and an implicit drift in the policy debate on the tax implications of the digitalised economy from a targeted analysis aimed at incrementally reforming the existing regime to a full-blown reconsideration of some of its fundamental tenets.     

Supreme Court Preview:Reed v. Town of Gilbert to Address Content Neutrality in Sign Regulation

Abstract

For the first time in two decades, the U.S. Supreme Court is scheduled in the 2014–2015 term to review the thorny planning and legal subject of local government regulation of outdoor signs and billboards and the core First Amendment requirement that regulations of speech be ”content neutral“. In basic terms, the content‐neutrality doctrine prohibits the government from regulating a speaker's content or message–including messages on outdoor signs. In Reed v. Town of Gilbert, the Court will be asked to decide whether Gilbert, Arizona's sign code, which distinguishes among several categories of signs, including religious, political, and ideological signs, meets the content neutrality requirement. In so doing, the Court may provide direction on how far local governments can go in regulating speech based on message, and the Court can resolve a longstanding division among the federal appellate courts over the meaning of content neutrality     

Delegation Dilemmas: Coalition Size,Electoral Risk,and Regulatory Governance in New Democracies

This article addresses the determinants of regulatory agency design in multiparty‐coalition governments. Previous research has mainly focused on U.S. institutions, producing context‐specific findings. We found electoral uncertainty, government turnover, and coalition size to be key factors explaining the bureaucratic autonomy of 31 state regulatory agencies recently created at the subnational level in Brazil. The legislative support that chief executives enjoy only acquires explanatory power when it is interacted with government turnover. Because Brazilian governors have great ability to build oversized majority coalitions, coalition strength influences the governor's strategy when the governor faces credible threats from rival elite groups.     

Dodging Dodd‐Frank: Excessive Speculation,Commodities Markets,and the Burden of Proof

Inspired by the wave of regulatory rulemaking, which followed the 2008 financial crisis and the passage of the Dodd‐Frank Act, this article examines the efforts of the Commodities Futures Trading Commission to implement one such rule: Rule 76 FR 4752. Born of concerns with the impact of financial speculators on commodities prices, the rule calls for the expanded use of position limits to control “excessive speculation” in US commodities markets. In documenting the political and legal life of this rule from its roots in policy reports through to its suspension by a federal judge, the article explores the place of “evidence” in the rulemaking process. Particular attention is devoted to the growing evidentiary burden placed on financial regulators who are expected to frame market problems in terms of quantitative, price‐based forms of harm. In the case of position limits, this has involved statistical analyses of the causal connections between excessive speculation and commodities prices and the use of a single statistical test: Granger causality. By examining the parameters and limitations of this test, the article offers a valuable window into the unique challenges of financial regulation and their roots in questions of knowledge, evidence, and proof.     

Emergencies,Executive Power,and the Uncertain Future of US Presidential Democracy

This article reexamines the question of how best to restrain executive power in a political and social context that seems to favor its dramatic expansion. Modern interventionist government amidst a dynamic social environment, where the executive faces a seemingly endless series of “crises” or “emergencies,” provides a heightened scope for executive discretion. At the same time, the US‐style separation of powers, in which an independent president faces a potentially obstinate Congress, offers executives many incentives to exploit crises, real or otherwise. The works examined in this article confront, with varying degrees of success, the seemingly inexorable expansion of executive power within the US version of liberal democracy. We can only hope to deal with the many intellectual and political tasks posed by the symbiotic nexus between executive‐centered and crisis‐oriented government by confronting some tough questions about US constitutional design and the possibility of radical institutional reform. Unfortunately, even those scholars who provide plausible accounts of the US system's fragilities seem hesitant to do so.     

公职人员双轨惩戒制度的宪法基础

政务处分法设置双轨惩戒制度有其宪法上的依据。我国宪法为公职人员设置了两种责任制。在功能上,权力责任制强调公职人员应当受人民监督;工作责任制则强调提高工作质量和工作效率。在理念上,权力责任制体现了“为人民服务”的政治要求;工作责任制则意在“反对官僚主义”。由工作责任制发展出的“社会主义责任制”,还进一步确认了相应组织具有宪法赋予的自主管理权。以上述区分为指引,可以合理划分处分决定机关的管理权限。政务处分虽可用于落实工作责任制,却主要是落实权力责任制的工具;任免机关、单位的狭义“处分”则主要是落实工作责任制的工具。监察机关依法不能代替机关、单位直接作出狭义“处分”。狭义“处分”程序可由公职人员任免机关、单位的组织(人事)部门推动。     

Intersectional Coalitions: The Paradoxes of Rights‐Based Movement Building in LGBTQ and Immigrant Communities

Over the past decade, inter‐ and intra‐movement coalitions composed of organizations within the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) and immigrant rights movements have formed at the local level. These coalitions speak to a massive organizing effort that has achieved some rights campaign successes. However, coalition unity that culminated in “wins” like marriage equality came at a cost. While both movements expanded and unified, they simultaneously ossified around goals that matter to the most privileged segments of their respective communities. The result is a paradox: coalitions do sometimes form within and across movements, promote enduring unity across seemingly divergent movements, and facilitate rights campaign “wins.” However, coalitions simultaneously reinforce hierarchical exclusions through the continued marginalization of issues that uproot conventional power dynamics, like police violence, economic inequality, and gender justice. This essay argues that the construction of a common “civil rights past” identity within coalitions can help to explain this paradox. The development of this collective identity expands movements, occasionally thwarting the power dynamics responsible for the centering of the interests of the most privileged constituencies within social movements. However, the episodic nature of rights‐based campaigns simultaneously contains and undermines the formation of this collective identity, reinforcing movement divisions based on race, gender, and class.     

European Agencies' Rulemaking: Powers,Procedures and Assessment

This article aims at identifying European agencies' rulemaking powers, mapping the procedures through which such powers are exercised and assessing the existing procedural arrangements. The first section analyses the main forms of European agencies' rulemaking. It shows, on the one hand, that not all European agencies are actually engaged in the adoption of administrative rules, on the other hand, that European agencies carrying out rulemaking activities tend to converge on two specific forms of rulemaking, namely participation in the adoption of binding implementing rules and regulation by soft law. The second section, devoted to mapping the procedures through which rulemaking powers are exercised, argues that the two main types of European agencies' rulemaking cannot be said to be subject to a really common procedural framework. In both cases, the emerging procedural rules implement the same principles of transparency and participation and rely on the same consultation mechanism, sometimes complemented by regulatory impact assessment. Yet, proceduralisation has an uneven development: while the establishment of a procedural discipline is quite common with reference to participation in the adoption of binding implementing rules, regulation by soft law remains largely under‐proceduralised. The last section proposes an assessment of the European agencies' rulemaking procedures. Two main shortcomings are identified: the asymmetry between the tendency to proceduralise the adoption of binding implementing rules and the parallel tendency to keep informal the process of adoption of soft law measures; and the too rudimental development of consultation.