Association for Public Policy Analysis & Management

When does Congress choose to draft legislation a great deal of specificity and less interpretative flexibility for agencies to rely on when designing new programs? To what extent do lawmakers provide some agencies with more scope as they draft regulations that implement a new program, and why? We focus on how the alignment between the executive and legislative branches affects these choices, considering both the ideological correspondence between the Congress and the President, as well as the relationship between the Congress and the agencies in question.

In this paper, we study these questions through a large sample empirical analysis, examining to what degree the regulations that agencies draft needs to expand on the underlying legislation upon which they are based. We extend a large delegation literature (e.g., Moe (1985), Epstein and O’Halloran (1999), Huber and Shipan (2002), and Lewis (2003)) that has primarily focused on how Congress may bind agencies’ program administration through administrative procedures. Rather than procedures that affect program execution, we focus in this paper on initial implementation, asking whether the agency is able to expand on the legislation in a significant way and how it does so.

Our analysis is based on a difference-in-difference approach, comparing levels of discretion in new legislation before and after the 2008 presidential election. We study all significant regulations promulgated based on legislation passed during fiscal years 2007 through 2011 by evaluating whether the degree of discretion afforded agencies changed after the election. We accomplish this both by analyzing how legislative and regulatory word counts changed before and after the election as well as through a textual analysis of the legislative acts and the regulations, particularly the preambles, to prepare measures of relative discretion.

Employing this new dataset and controlling for whether the legislation addressed complex or scientific questions, and the characteristics of the agency (notably, whether or not it is a regulatory agency or an independent or executive-branch, we first consider how a Democratic Congress over the period treated discretion differently across agencies. We study which types of agencies and programs were given more open-ended guidance and, employing measures of agency ideology, and whether that discretion was centered more on Democratic-leaning agencies (agencies favored with higher appropriations by the Democrats during their periods of unified Congresses). Exploiting the changeover in administration, we next test how statutory language intended to direct agencies in implementing programs changed -- offering more interpretative flexibility -- with a narrowing of the ideological distance between the executive office and Congress, , depending on whether the agency  was perceived to agree with the administration ideologically.