Regulating the Family: The Impact of Pro-Family Policy Making Assessments on Women and Non-Traditional Families

Introduction 2I. "Impact Assessments" and Public Policy 4A. Environmental Risks 6B. Family Well-Being 7II. The Emergence of the New Right and "Pro-Family" Concerns .....9A. A Reversal of Fortune 11B. "Pro-Family " Policy and the Reagan Administration 13IV. Imposing a "Pro-Family" Lens on Federal Rulemaking 18A. Presidential Control of the Regulatory Process 19B. Executive Order 12,606-The Family 20C. Legislative Control and "Pro-Family" Rulemaking 24IV. The Family Impact Assessment in Practice 26A. The Silencing Effect of the Family Impact Statement 27B. Measuring Family Well-Being 32Conclusion 36IntroductionOn September 25, 1973, Dr. Margaret Mead testified before a Senate hearing on American Families: Trends and Pressures, 1973.' Along with other prominent witnesses, she urged Congress to support policies that prioritize the well-being of all families because "as the family goes, so goes the nation." Senator Walter Mondale (D-MN) voiced the sentiment of many of the witnesses when he warned that "[t]o envision a single model family or a single way to raise children would do great damage to the pluralism and diversity that makes our country strong."3 One of the most forward-looking recommendations to come out of the hearing was the development of a family impact statement that would analyze the impact of federal policies on American families in order to maximize the "options and choices that families need to do their best job."4Despite the initial enthusiasm, it would be fourteen years before this recommendation would be implemented by President Reagan through Executive Order 12,606.5 By that time, much had changed in the national political landscape. The original proposal had been aimed at supporting the pluralism and diversity of American families, including dual-wage, single parent, and multigenerational families. According to Executive Order 12,606, however, these labels applied to problems, not families. The Executive Order adopted a "pro-family" perspective that, contrary to Senator Mondale's warning, envisioned a single-model family and a single way to raise children.6 It advocated a normative view of the "traditional" family and sought to strengthen "the stability of the family," "marital commitment," and "personal responsibility."7 President Clinton rescinded the Executive Order in 1997,8 but in 1998, Congress enacted legislation requiring pro-family impact assessments for all rulemaking. The "Family Policy Making Assessment" remains in effect today, mandating a profamily lens for all federal rulemaking.10This Article examines the evolution of the family impact statement from a progressive template for inclusive policymaking to a "pro-family" values check designed to promote and protect the "traditional" American family." The normative switch that occurred corresponds with the larger cultural shifts of the period that saw the rise of the New Right and the Reagan Revolution.'2 Originally proposed as a way to improve family well-being through better and more targeted federal policy, the family impact statement was recast as a necessary bulwark to protect families from federal regulation.13 Although rarely mentioned in the legal literature, the story of the family impact statement illustrates a number of significant changes that occurred in the 1980s with respect to rulemaking, family policy, and general views on the desirability of federal regulation.14 It illustrates the potential power of the administrative state to impose an across-the-board ideological lens on all federal policy. It also raises important questions regarding how we measure family well-being and how we define family. …