Yes, the Presidency Has A Role to Play   Leave a comment

Although we tend to think of the administrative state as the executive branch run riot, it really is more complicated than that. To a large degree, the administrative state is not wholly under the authority of the President at this time. This is not to say it couldn’t or shouldn’t be.

The President can take greater control of the truly executive functions of administrative agencies and federal departments, restoring the chief executive’s constitutional authority to oversee executive branch affairs (and creating incentives for Congress to stop delegating its power).

The expansion of the administrative state has not led to an expansion either of the power of the President in general or of the executive branch in relation to the administrative state. The administrative state is a “fourth branch” of government in which the three types of governmental powers are consolidated and exercised. It does not have just executive power.

While the President now has control over a few bureaucrats within some agencies and departments, he has little oversight of the day-to-day activities of administrative agencies. Except for the Cabinet and certain heads of some agencies and regulatory commissions, the President has little control over most agency personnel, who remain in power regardless of who occupies the Oval Office.

The inability of Presidents to control bureaucrats has frustrated Democratic and Republican administrations alike over the past several decades. Harry Truman sympathized with the plight of his successor, Dwight Eisenhower, as the supposed “chief executive” under the Constitution: “He will sit here and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the army.” Truman knew this would happen from his own experience. He complained, “I thought I was the President, but when it comes to these bureaucrats, I can’t do a damn thing.”

The bureaucracy was so hostile to Richard Nixon that it even captured the loyalty of his political appointees. “We only see them at the annual White House Christmas Party; they go off and marry the natives,” said John Ehrlichman about some Nixon appointees.

While these agencies appear to be part of the executive branch, they are not subject to the direction of the President, who is given the executive power in the Constitution. If anything, the President became weaker as a result of the creation of the administrative state.

Some Presidents have responded by trying to recapture control of the bureaucracy, with typical bipartisan results. Obama’s “czars” are merely his attempt to consolidate the power of the administrative state in the White House. Rather than being located in the executive departments, where they interact more with career bureaucrats than the President’s confidants, these“czars” are part of the White House office and interact more regularly with the President and his advisers. It is easier for the President to direct White House staff than to direct his political appointees in the executive departments.

In general opposition to anything Obama, many conservative critics have opposed this practice, but the czars may actually enhance the accountability of the national bureaucracy by making an elected official directly responsible for its activities. We can hold bureaucrats accountable through the President, but only if the President actually influences what the bureaucrats are doing. Oddly, their use may not be as antagonistic to constitutional principles as we believe.

The President can take more action to make the national bureaucracy more accountable to the people, and Congress can enact laws to support these actions. One possibility is for Congress to give authority to the President to remove administrative officials more easily.

According to the Constitution, Congress has the power to vest the appointments of “Inferior Officers” in the hands of the President, the courts of law, or the heads of departments (Article II, Section 2). Since the rise of the administrative state, most federal personnel are selected through the civil service system, in which “open, competitive examinations for testing applicants for appointment” are employed. Currently, most career bureaucrats are selected by an assembled examination, which is a written test, or by an unassembled examination, which is also a merit-based civil service system. Once a person is appointed through the civil service system, he or she becomes a career bureaucrat relatively immune from the oversight of the President.

The President’s relatively few political appointees are often not able to change the way the entrenched career bureaucracy has done things. We may elect a President on a platform of regulatory change and reform and still see little progress on that front because the President truly does not have control of the bureaucracy. Congress can change how agency personnel are selected by placing more power in the hands of the President to appoint and remove agency personnel, thereby enhancing the accountability of agencies.

Alternatively, Congress can give the President the power to intervene in particular decisions, overturning agency and departmental actions with which he disagrees. This alternative to granting appointment and removal powers to the President would achieve accountability of administrative decisions and public views could be translated into policy in line with the way the Framers intended the political process to work.

In reality, the President could try to exercise this power even absent Congress granting it to him, simply by directing an agency to change its decision based on his political priorities and his power as chief executive. Presidents have done this in the past. It’s how Andrew Jackson killed the national bank. It would probably cause a fight and the constitutional question would be raised. Are these agencies accountable to the President or not? If they are not accountable to the President, where in our constitutional structure are they accountable?

Too often we focus on one party or the other as the solution to our problems, but the administrative state should be brought to the forefront of public debate. If the powers of the agencies are indeed executive, as many defenders of the administrative state argue, then why is the President unable to control the people charged with exercising these powers or to change agency decisions with which he disagrees? If the President could directly order agencies to follow his commands, it would reinforce accountability. It would also provide incentives for Congress to make the laws itself, since the legislative power it delegates would go into the hands of the Presidency, a rival branch of government. It would also clarify in the public mind where(or if) these agencies are located in our constitutional structure.

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