How the Clinton administration is expanding its power before it leaves town.
The Clintonites are good. One might think that, saddled with a Republican Congress, a presidential pronouncement that "the era of big government is over," and the aftermath of a distracting impeachment and trial, even the most bullish advocate of government would leave the mess behind and move on. Not so with Clinton's folks: They are as active as ever.
Committed to the idea that federal power can transform America into what they think is a better, more just place, these appointees see the waning administration as an excellent opportunity to expand state power. This is the hour to consolidate gains, and to translate the extreme views of temporary bureaucrats into lasting policy.
Take, for example, the sudden expansion of Title IX of the Education Amendments of 1972. On October 29, Clinton's civil rights crew at the Department of Justice published a little-noticed proposed rule in the Federal Register that would greatly extend the government's reach under this law.
Like most laws, Title IX is vague. Its operative clause states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." President Ford's Department of Health, Education, and Welfare issued regulations interpreting the law in 1975. Four years later, Jimmy Carter's HEW handed down an interpretation for nondiscrimination in athletics, the now infamous three-prong test. To prove it's not discriminating against women, an institution must show one of the following: It meets the athletic needs of its female students; it is expanding to meet those needs; or its female and male students participate in athletics in percentages roughly proportionate to those of their respective enrollments.
In practice, proportionality provides the only "safe harbor" for schools that wish to avoid costly investigations or litigation. And proportionality is just a fancy synonym for quota, as Rep. Maxine Waters (D-Calif.) took some pleasure in reminding her colleagues on the House Constitution Subcommittee in June 1997. "It's the biggest quota you've ever seen," Waters said with glee during a hearing. "It is 50/50. It is a quota–[a] big, round quota."
This quota applies to both athletes and scholarship money. Since women choose to participate in sports at lower rates than men do, and since athletic budgets are limited, many schools are unable to meet their quota without cutting men's teams. From 1992 to 1997, more than 200 men's teams were cut, locking more than 20,000 male athletes out of college locker rooms. Over the same period, according to the Independent Women's Forum, institutions of higher learning added 5,800 female athletes to their rosters. (See "Title IX from Outer Space," February 1998, and "Manly Pursuits," November 1999.)
As nasty as it has proven in the 1990s, Title IX up until now has affected only those educational institutions that receive federal aid. The Clinton administration wants to expand it to cover any institution, public or private, that receives federal money and 1) conducts educational programs or 2) contracts with educational institutions to provide noneducational services. Included in this dragnet are not only an alphabet soup of 25 federal agencies and departments but also private companies that provide America's students with a variety of services. "A forestry workshop run by a state park receiving funds from the Department of Interior," the Federal Register informs readers, will be covered by Title IX. So too will "vocational training for inmates in prisons" and "a lecture series on the history of dance at a local school of ballet," if either the prison or the school gets a dime of federal money.
Under the rationale of ensuring against sex discrimination, the Clinton administration is granting federal bureaucracies the power to regulate any company, agency, or government that engages in education-related activities and receives federal funds. This expansion also means more lawsuits. Unlike other nondiscrimination laws, Title IX gives third parties with no direct interest in the alleged discrimination (e.g., feminist advocacy groups, such as the National Women's Law Center and National Organization for Women) the right to file a complaint against any school. If they can find a plaintiff, they can march directly to court, where compensatory and punitive damages are available. These damages, along with attorney fees, underwrite future meddling. Lisa Tietig, an attorney suing a high school under Title IX, was blunt when 20/20's John Stossel asked if she was requesting up to four times her actual costs in fees. "Right," she replied. "We put that money into other lawsuits."
The Clinton administration characterizes the change as a minor extension of existing law, one that doesn't require Congress to amend the statute or even hold hearings. According to the administration, the changes are so trivial that federal agencies don't even have to bother with the usual cost-benefit analysis. Of course, if the proposed change were that trivial, the entire exercise would be redundant.
Doing an end run around Congress (and thus around the Constitution), and even around full administrative review, has been common in the Clinton administration, where disregard for the rule of law starts at the top.
In 1995, Clinton issued an executive order prohibiting companies from hiring replacements for striking workers–a policy that a Democratic-controlled Congress considered and rejected on four separate occasions. A federal court quickly struck it down. That same year, Clinton met congressional opposition to the bailout of Mexico with a plan to lend the money administratively.
Similarly, Interior Secretary Bruce M. Babbitt, after running into congressional resistance to increased grazing fees, figured out he could achieve the same goal–reduce the number of cattle ranched on federal land–"administratively." When ranching leases come up for renewal, the Bureau of Land Management cuts the cattle allotment by up to 85 percent.
Babbitt also ran into trouble reforming the Mining Act of 1872 to limit mining. No problem. Last year his department just reinterpreted the law to impose a five-acre limit on storage sites for excess rock and dirt removed from mines. According to a National Journal report chronicling the success of Clinton's cabinet, that could"essentially end open-pit mining in the West."
"When I got to town, what I didn't know was that we didn't need any more legislation," Babbitt told National Journal's Carl M. Cannon, adding, "We've switched the rules of the game. We're not trying to do anything legislatively."
Why bother? It's easier to change the law without going through Congress. Clinton has used presidential proclamations–and more than 300 executive orders–to achieve much that couldn't make it through Congress. He's been particularly active circumventing Congress in the environmental area. Just prior to the 1996 presidential election, Clinton issued a proclamation creating the Grand Staircase-Escalante National Monument on 1.7 million acres in Utah. A year later, he issued an executive order to create his American Heritage Rivers Initiative, which wasn't likely to pass Congress but is likely to put federal bureaucrats in charge of millions of acres of private land.
His underlings were quick studies. Environmental Protection Agency head Carol Browner, faced with a hostile Congress, figured she'd update the environmental laws administratively–that is, through regulations. She handed down a set of strict clean-air regulations in 1997.
Writes National Journal's Cannon: "Browner–also without the benefit of authorizing legislation–has streamlined the procedures for cleaning up the abandoned inner-city industrial sites known as `brownfields'; nearly doubled the list of chemicals whose release into the atmosphere companies must disclose publicly, under the EPA's `right-to-know' regulations; and, under a directive from Al Gore, teamed up with the USDA to write a blueprint for water cleanup that is nothing short of an administrative rewrite of the Clean Water Act." Bragged Browner, "We completely understand all of the executive tools that are available to us. And, boy, do we use them."
Congress is not without fault. If members had the will, they could hold hearings and stop much administrative legislating. Says Michael Greve, executive director of the Center for Individual Rights, a public interest law group, "If they wanted to stop it, they could." But the fight can be tough. Rep. David McIntosh (R-Ind.), chairman of the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, has been trying to get the EPA to refrain from implementing sections of the still unratified global warming accords drawn up in Kyoto. McIntosh can't find authorization in the Clean Air Act to regulate carbon dioxide. The EPA insists the authority is there, if only in spirit.
"The Clean Air Act is not a regulatory blank check," says McIntosh. "EPA is claiming a power Congress has not delegated for the apparent purpose of implementing a treaty the Senate has not ratified. I am determined to block any such usurpation of legislative power."
Ultimately, a federal court may have to decide. Courts have not been a friend to Clinton's EPA. It has lost two-thirds of the 65 cases brought against it in the U.S. Court of Appeals in the District of Columbia, according to a soon-to-be-released report by the Reason Public Policy Institute.
The end is near, however, and before the Clinton's appointees leave office they need to consolidate their gains. While in power, a bureaucrat can achieve much with what is known as "sub-regulatory guidance." Through an unrecorded phone call, or a letter that doesn't need approval from the central office and therefore isn't "official policy," a bureaucrat advises a recipient of federal funds how things ought to be done. And since the bureaucrat is the liaison to those higher-ups who control federal money, those "unofficial opinions" are taken seriously.
The Occupational Safety and Health Administration's recent "letter of interpretation" informing a Texas company that it was responsible for conditions and accidents in its employees' home offices is an example of sub-regulatory guidance. OSHA bureaucrats spent two years drafting the letter, which at some point would have been applied to other companies and perhaps even used in court. Yet when the contents wound up on the front page of The Washington Post, it took less than 24 hours for Labor Secretary Alexis H. Herman to claim her office never reviewed it and it wasn't official policy.
Come 2001, a Republican appointee might be working the phones and writing the unofficial letters, so Clinton's enforcers need to codify their views. At the same time, they may just set themselves up for a lucrative life of private policy-making.
This is the central issue in the expansion of Title IX, and the reason that the Clintoncrats and their allies fight so fiercely for such regulation. Ultimately, the proposed regulation is not about helping any victims of purported sex discrimination. A woman already has a choice of ways to sue any government agency, private business, or government contractor she feels has discriminated against her.
Take the case of a forestry workshop run by the state park, the example cited in the Federal Register. If the park passed on hiring a qualified woman so as to hire a less qualified man, the aggrieved applicant could vindicate her rights under Title VII of the 1964 Civil Rights Act. The Equal Employment Opportunity Commission would investigate her complaint and, if it concluded that the charge was valid, pass the lawsuit on to the Department of Justice to pursue on the woman's behalf. If the EEOC didn't find fault, the woman could sue on her own. If a private company rather than a government agency is involved, Executive Order 11246 prohibits the company from discriminating against the woman. The Department of Labor's Office of Federal Contract Compliance would be responsible for investigating. If the woman was dissatisfied with the outcome, she could still go through the EEOC and file her own Title VII suit.
Title IX's expansion is, in the words of Cornell political scientist Jeremy Rabkin, "weapons modernization" for bureaucrats, lawyers, and left-wing activists. As CIR's Greve notes, "Title IX quotas in sports are the single hardest quotas we have." Combine these quotas with the mechanism that allows third parties to lodge complaints, as well as the compensatory and punitive damages Title IX makes possible (not to mention the inflated attorneys' fees), and the new, improved Title IX becomes the perfect vehicle to keep soon-to-be former political appointees employed as saviors of society's numberless victims.
There is, after all, plenty of unfinished business to attend to. Many universities and colleges still use the SAT for admissions. Some private companies still use standardized tests as a factor in hiring decisions. Title IX-style quotas might soon improve immeasurably the education programs in America's prisons, not to mention the possibilities for lectures on dance. True, Congress could hold oversight hearings and spoil all these social improvements. But don't count on it.