Activist Administrators

10 March, 2004

The prime argument being made by Republicans against same-sex marriage is a procedural one. Those seeking to allow same-sex couples to marry, they say, are advancing their cause by looking to activist judges like the Supreme Judicial Court of Massachusetts or activist executive officials like San Fransisco mayor Gavin Newsom. Opponents of same-sex marriage, trusting that public opinion leans toward them, insist that the democratic process -- by which they mean elected legislatures responding to the will of the people -- is the only proper terrain for this fight.

There's something to be said for the desire for a democratic decisionmaking process when a major change from past practice is considered. If nothing else it makes the final decision stronger. It would be nice to think that Republicans were applying this standard across the board, trusting to public debate and the legislative process to make important decisions. A quick look at environmental policy under George W. Bush, sadly, shows a strong desire to dodge democracy -- perhaps because the public is well known to value the environment. Though Bush touts a new environmental philosophy of non-regulatory approaches and local control, he has gone about implementing it by maneuvering around behind the backs of the existing federal regulatory laws.

For one example, look at the administration's evisceration of the democratically enacted Clean Air Act. Claiming that the current regulations are burdensome to the energy industry, the administration has pushed to shift to weakened standards and expanded cap-and-trade mechanisms. Former Environmental Protection Administration head Christine Todd Whitman wanted Congress to make the call, in recognition of the gravity of the change from the traditional aim of pollution control law. But the energy industry and the administration higher-ups weren't interested in a public and democratic process. Instead, they pushed the revisions in the executive branch, quietly reinterpreting the implementation of the law.

For another case, take the decision to drill for oil on Alaska's North Slope. Last year, after a high-profile (or as high profile as environmental debates get) public debate, Congress turned down the administration's proposal to open the Alaska National Wildlife Refuge to drilling. Bush aims to give congressional approval for drilling in the ANWR another shot this year. In the meantime, the Interior Department has ignored a deluge of negative public comments to open several million acres of nearby areas of the North Slope to drilling. The area in question is part of the National Petroleum Reserve, set aside for national-security use and previously untouched by commercial drilling.

From removing road-building restrictions on Tongass National Forest to slowing the rate at which sites are added to the Superfund National Priority List, the Bush Administration has preferred to undercut past environmental protection practices from the administrative end rather than directly challenging the law through democratic processes. The Healthy Forests Initiative was a comparative breath of fresh air, since it was fought over and eventually approved by Congress (though the administration did go as far as possible toward implementing its principles under the old laws while waiting for Congress to act).

Are these actions within the authority of the executive branch? Perhaps. But the same can be said of the same-sex marriage decisions made by the SJC and Newsom.

This administrative activism is in its way even less democratic than judges and mayors imposing gay rights. The SJC and Newsom sparked a flurry of national debate. By the time the issue is decided, the pros and cons of same-sex marriage will have been extensively probed through a very public debate. Even without a formal mechanism of democratic accountability, those who make the call will be hard-pressed to avoid taking into account the vigorous discussion as the nation attempts to figure out the issue. Administrative undermining of environmental policy, on the other hand, is subtle. The issue doesn't dominate the newspapers or the radio -- indeed, most people haven't given much thought to it. And so the Bush Administration is able to slip its environmentally damaging policies past the public. The nation would be better off if we could debate the direction we want to go in our care for the environment as thoroughly as we're debating where we want to go with respect to sexuality and family structure.

Stentor Danielson