How the White House and Congress Are Establishing an Imperial Presidency Analyses of pending and expected antiregulatory proposals have revealed the usual themes from years past � net benefits, regulatory budgeting, sunsets, and so on. An unexpected theme has also been emerging, which is worth noting for anyone committed to a progressive vision of an open, accountable government responsive to public needs: a trend in favor of concentrating power in the White House free of democratic accountability. In short, the creation of an imperial presidency. Imperial Presidency Proposals The White House has provided many examples of imperial presidency gestures throughout the Bush administration, from the decision in the first term to constrict the applicability of the Freedom of Information Act to the recent request in the Iraq war supplemental for over $5 billion in unrestricted foreign aid that senators from both parties are decrying as a �slush fund.� The consequences of an imperial presidency are tremendous for openness and government accountability, of course, but a few key recent examples of proposed and anticipated measures suggest the consequences for regulatory protections of the public interest. width="432">Track developments on the imperial presidency and more at www.ombwatch.org/files/regs. Raising Homeland Security Above the Law As we reported before, section 102 of the Sensenbrenner immigration bill (H.R. 418) would put the Secretary of Homeland Security above the law when securing the borders and removing obstacles to the detection of illegal immigrants. Superficial reportage in some press organs characterized the provision in passing as though it only enabled the Department of Homeland Security (DHS) to ignore a conflict with the California Coastal Commission that has been holding up construction of additional fencing in a three-mile segment near San Diego. In actuality, the provision as passed by the House would extend far beyond the San Diego area and would empower the DHS secretary to waive any and all laws, without any limit on the secretary�s discretion. Moreover, it is completely unnecessary; the federal law that governs the conflict with the California Coastal Commission already has waiver provisions that allow the White House ultimately to proceed, if necessary, with any needed fencing. UPDATE: White House releases proposals for power to completely restructure government. If the Senate agrees to this provision and the White House signs it into law, first in danger would be environmental protections along the border. The provision would allow DHS to waive many more protections of the public interest, such as the following:

• Criminal law -- from racketeering to murder and everything in between;
• Child labor laws;
• Laws that protect workers by ensuring safe and healthy workplaces, preventing unfair contracting through Davis-Bacon Act wage determinations, and banning retaliation against whistleblowers;
• Civil rights provisions that bar federal contractors from discriminating on the basis of race and sex;
• Ethics laws for clean contracting and procurement policy; and
• Laws that give small businesses a chance at winning contracts for construction work along the border.

Another component of the DHS waiver authority would make any waivers and any cases arising from waivers unreviewable in any court. This section does not apparently have any limitations; it could shield not only government agencies but also private contractors from any liability for deaths, dismemberments, or any injuries whatsoever. For example, this section would empower the DHS secretary to give no-bid contracts for border construction to private companies and then could shield those contractors from all employment discrimination and workplace safety laws. Workers harmed by the contractors would likely be left with no recourse whatsoever. Seizing Control Over All Government Operations The White House is also seeking the power to reorganize the very structure of all government operations and eliminate civil service protections in its management of the workers who serve the public in government agencies. Rep. Tom Davis (R-VA), chairman of the House Committee on Government Reform, has also vowed to reintroduce legislation to empower the White House to reorganize all federal agencies. Underneath the technical discussion of organizing, streamlining and restructuring government programs is the risk that the White House would use its new powers to weaken government programs that serve the public interest. We have previously documented how the Bush administration�s tendency to give in to special interests makes its regulatory record one long pattern of failure; new powers to reorganize and restructure government programs would likely continue that trend. Particularly at risk would be government programs that target highly vulnerable and underserved populations. The Appalachian Regional Commission, for example, was recently criticized in a White House program assessment for doing work that duplicates the work of other government programs, even though the ARC was created precisely because the existing patchwork of government programs was not doing enough to meet the needs of the severely disadvantaged population in Appalachia. The White House has pushed not just for the power to reorganize government programs but also for the authority to establish new management controls over the government workforce, free to ignore existing civil service law. The White House has already been granted such power for the Department of Homeland Security, and it has announced its intention to seek the same �flexibility� for all other government departments. The government workers whose jobs could be at risk without civil service protections are not merely faceless functionaries � they include such important figures as David Graham, the FDA researcher who discovered that Vioxx put seniors at risk; Sibel Edmonds, the FBI translator who blew the whistle on mismanagement of the so-called �war on terror�; and Jack Spadaro, a mine safety inspector who refused to keep quiet as the Department of Labor botched the investigation of what has been called the worst environmental disaster in decades. �Flexible� management policies without the procedural guarantees of existing civil service protections could threaten not just those who expose mismanagement and fraud but also those who, like Graham, reach conclusions that threaten the bottom line of the industries that exert extraordinary influence over the administration. Erasing Local Protections of the Public Interest The press is increasingly taking notice of the Bush administration�s campaign to serve corporate special interests by weakening and eliminating protections of the public. In addition to its efforts at the federal level by slashing agency enforcement budgets and weakening or eliminating federal regulations, the administration has mounted a similar attack on regulatory protections at the state level. One of the most prominent examples has been the Food and Drug Administration�s efforts, under former chief counsel Daniel Troy, to argue in court that drug companies should be exempted from state product liability laws whenever a harmful drug has been approved by the FDA. The FDA�s record on drug safety has recently been called into question by the Vioxx case and growing concern about adolescent use of antidepressants. The FDA�s preemption argument would prevent state and local governments from protecting their residents, even when the FDA�s only protective action is inaction. The White House�s attack on block grants, using the rhetoric of �performance� and �results,� is another example. In the White House�s performance assessment schema (the Program Assessment Rating Tool or �PART�), block grants must, like all other government programs, show �results� acceptable to the Office of Management and Budget. It hardly sounds controversial � who could be against �results,� after all? � but the rhetoric of results masks the underlying conflict with the very purpose of block grants, which is to send funds to the states with no strings attached. Most states actually have performance management programs of their own, but the PART essentially holds states accountable to the White House�s own measures. Aside from this basic conflict, the PART sets up block grants for failure, thus enabling the president to declare that a program�s failure to show results is the reason for proposed budget cuts. Eliminating block grants essentially means cutting off funds to the states, which have increasingly been the source of needed regulatory safeguards. Although the PART could disappear when the Bush administration leaves office, the recently reintroduced Program Assessment and Results Act would effectively codify the PART and enshrine it in law. The White House would therefore be empowered to continue using this tool in its larger campaign to serve corporate special interests by blocking the states from creating protections of the public health, safety, and environment that the administration refuses to provide. Fundamental Problems of an Imperial Presidency An imperial presidency spells disaster for regulatory protections of the public interest. As has been shown repeatedly � from the early 1980s, when the White House used the Paperwork Reduction Act to block the FDA from requiring Reye�s Syndrome warnings on aspirin, to a more recent decision such as the White House�s use of centralized regulatory review to weaken regulations requiring tire pressure monitoring systems � centralizing regulatory policy in the White House facilitates the undue influence of corporate special interests and can produce deadly results. Moreover, an imperial presidency is offensive to the constitutional order, which establishes checks and balances among three coequal branches of government, distributes power among multiple sovereigns in the federalist design, and diffuses federal power within each branch. Just as legislative power is split between two chambers, executive powers are allocated not only to the White House but also to the departments of government, to which Congress can directly delegate specific authorities. The very purpose of this diffusion of power is to avoid the dangers attendant to the centralization of power in a single office. Hovering over the potential imperial presidency is the specter of government by fiat, beyond the reach of the very people who constitute the government in a democratic state. The vision of the imperial presidency is not empire so much as the mythic corporate executive. The invincible executive has proven in recent years, however, to have feet of clay. Enron, Tyco, WorldCom � the list of colossal failures, and devastation to people�s lives from unchecked greed, continues to grow. The effort to reshape the presidency in the model of the corporate executive only sets us all up for more harm from the real corporate executives who come calling at the White House, day after day, leaving weakened protections as their calling card.