Thursday, January 21, 2010

How Do Bureaucrats Interpret the Law--a Test Case

One of the great myths of the old civics texts was that Congress writes the laws, the President signs them, and the executive branch implements them.  Why a myth: because it implies everything is clear and straightforward.  (IMHO it's of a piece with the originalist interpretation of the Constitution.)  In fact Congress often writes laws which can be interpreted multiple ways.  Sometimes that's intentional: when you're trying to compromise to reach an agreement coming up with words which mean different things to different people is a common tactic.  Another tactic is to use fudge words like "appropriate" or "as applicable".It's called kicking the can down the road, leaving issues up to the bureaucracy to resolve.

All that is a lead-in to issues raised in FSA's implementation of the new biomass crop assistance program. It starts with this post critical of FSA at Sustainable Ag.  Essentially the criticism goes that FSA is issuing too much money to old users of biomass to the detriment of developing new uses of biomass and these procedures accord neither with the intent of Congress nor the letter of the law. (In passing I've noted criticisms coming from others, including the Hill as mentioned in the post, but I don't have those handy.)

It continues with a comment by Paul Harte (warning: I knew and worked with Paul back in the day) taking the author to task.  His position is the wording of the law requires the procedures FSA is using, OGC (Office of General Counsel) and OMB signed off on FSA's regs, and the manager's report doesn't support the critics.

And there's a response to Paul posted on Sustainable Ag.

I don't have the energy or the interest to get into the weeds and decide who's right.  But I will offer comments;
  • you can usually find lawyers who will argue different interpretations of the same wording but my experience with USDA lawyers (OGC) is they're typical bureaucrats, not very adventurous in interpretation.  
  • Paul is right in pointing out that OGC and OMB review (and OGC rewrites, and rewrites) regulations.  That doesn't mean their view is right, but it does mean FSA isn't being arbitrary.
  • CBO and OMB have pictures in their head (in Lippmann's phrase) of how the program will operate but that doesn't mean the pictures match the way the bureaucrats and lawyers are going to interpret the language. And just because FSA, OGC, OMB and CBO are all part of the federal government doesn't mean they communicate welll, or at all, with each other.
So what happened in blowing a $70 million program up to $514 million.  There are logical possibilities:
  • the critics are right, FSA blew it  The question would be why: did lobbyists for paper mills etc.wield improper influence or are the bureaucrats and lawyers just incompetent?  Those seem to be the alternatives.
  • Paul is right, FSA is administering the law in accordance with the most reasonable interpretation of the wording.  Then the question would be why did the lobbyists for the sustainable ag people and the staff attorneys on the Hill fail to write the law better, or did the lobbyists for paper mills etc. stick an oar in?
  • neither is right or both are right.  FSA, OGC, and OMB made their decisions without realizing the potential for paper mills, etc. to get money and so did not alert the Hill to ask for a technical correction to clarify the language.
  • something entirely different.
(Paul by now is probably eligible to retire--I'm wondering what the USDA reaction to his comment will be.)

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