In a world with an ever more powerful administrative state, how can we prevent civil service bureaucrats from overreaching and writing rules that go beyond the text Congress enacted into law? Requiring the President to personally sign rules before they become law may be one partial solution.

Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funds from discriminating on the basis of race, color, or national origin. Because Congress understood that rules interpreting this broad language could prove particularly vulnerable to bureaucratic overreach, it added a unique procedural safeguard to ensure that Title VI rulemakers would be held accountable. Title VI requires that any rules any agency promulgates under Title VI must be personally signed by the President: “No such rule, regulation, or order shall become effective unless signed by the President.” Eight years later, Title IX of the Education Amendments of 1972 was enacted to prohibit sex discrimination by education programs or activities that receive federal funding. Congress then adopted a signature requirement nearly identical to the one found in Title VI. This approval authority was later delegated to the Attorney General. But such delegations are legally questionable.

In a paper recently published in the Georgetown Journal of Law and Public Policy, I look carefully at the legislative history of the Title VI signature requirement and its Title IX twin. I conclude that given the importance Congress attached to having the President personally sign rules, the delegation to the Attorney General was legally questionable. I also look at Title VI and Title IX rules that were promulgated before and after the delegation of the presidential signature requirement.

Looking back through this history, it appears that the members of Congress who were concerned about bureaucrats issuing rules that were out of step with public opinion were largely proven right. When the presidential signature requirement was actually followed in the 1960s and 1970s, the rules which 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 1980, various federal agencies, including the Departments of Education and Justice, increasingly promulgated rules that are more 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 and contributed to government overreach.

The President should consider revoking the delegation of signature authority to the Attorney General. The President should also review any rules that were signed only by the Attorney General (or never signed at all) and consider repromulgating them with a presidential signature to avoid future legal challenge. Finally, Congress should consider including presidential signature requirements in future regulatory statutes to protect democratic accountability.

The full text of my essay is available here.

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