Presidential Signature Requirements As a Tool for Enforcing Democratic Accountability

III.

Conclusion

Looking back at the recent history of major Title VI and Title IX rules, the members of Congress

who were concerned about bureaucrats issuing rules that were out of step with public opinion werelargely proven right. When the presidential signature requirement was actually followed in the 1960sand 1970s, the rules that agencies issued did not go far beyond the scope of the statutes they were implementing and tended to be noncontroversial. After the President delegated this authority to the Attorney General in the 1970s, various federal agencies, including the Departments of Education and Justice, increasingly promulgated rules that are more questionable and controversial exercises of their statutory authority under Titles VI and IX. The delegation of presidential signature authority should not be exclusively blamed for these developments, but it has worked in tandem with other doctrines giving broad authority to the civil rights state to contribute to government overreach. Counterfactual history is always hard. Nonetheless, looking at the politics and public opinion surrounding some of the most prominent Title VI and IX rules of the last few decades, it is at least plausible that some either would never have been promulgated at all or would have looked different if the then President had had to sign them. The members of the 88th Congress who anticipated that a presidential signature requirement would prevent agency bureaucrats from overreaching were probably right. Enforcing the presidential signature requirement would likely help to ensure that significant and controversial decisions about civil rights regulation get made by politically accountable actors—the President or Congress.

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