I posed this as an issue for debate in this thread on the “imperial presidency,” but though the thread went on for two pages, nobody took up that particular question. Charlie Savage, author of Takeover, describes how the Bush/Cheney Admin has attempted to exert an unprecedented degree of political control over the “permanent government,” i.e., the career civil servants, many of whom operate under express statutory mandates defining their missions that might be at odds with the agenda of any given administration. And The Nation has reported that some at least marginally effective opposition has been posed by just those bureaucrats. These people, afer all, are the government’s real professionals and technical experts. They’re the people who know what they’re doing, at least more so than the POTUS and Cabinet secretaries and undersecretaries.
OTOH, shouldn’t the various branches of federal government, generally speaking, be doing the bidding of our elected POTUS? Or what’s the point of our electing him/her? Politically unaccountable bureaucracies, on the whole, have an uninspiring history.
Related to this is the question of how oversight of the bureaucracy should be divided between the presidency and Congress.
As a working member of the bureaucracy of which you speak, the guidelines we typically work with are that the politicos set policy and the careerists carry it out, within the bounds of what is allowed under the enabling legislation. When the policy and the legislation differ, the legislation is supposed to take precendence, given that legislation is “the law of the land.” In practice, it’s rarely that simple. Legislation is often written with a lot of wiggle room - “the Secretary/Administrator shall, in his/her judgement…” and so on, with the key word being “judgement.”
There are sometimes situations in which the more experienced bureau-/techno-crats will step aside and let the younger ones take the lead on a big project, if the more experienced people realize that the policy direction is one big exercise in futility, meaning that they are well aware that the policy will be the subject of a lawsuit and overturned in court.
Relative to oversight, the executive branch political types exercise oversight almost constantly, through their setting of priorities and day-to-day decision making. Congress gets a shot at the issues sporadically, but they can make a difference if they’re paying attention. Congress wields most of their influence in the appropriation process, but doesn’t usually get involved in more detailed issues unless there is some big controversy.
Having worked under three administrations, there are big differences in organizational direction and tone, with pluses and minuses for each of them. My view is that the system does work relatively well, particularly if the appointed officials are capable. That doesn’t mean that I’ve agreed with what the politicos are doing, but in general, the policies of a given administration do get implemented, and are usually not a surprise given their political positions.
I think there is zero constitutional basis for viewing the bureaucracy and the president as being somehow separate. The first words of Article II read: “The executive power shall be vested in a President of the United States of America.” All executive power is held by the president. The bounds of executive power are issues to be wrangled over by the President, the Congress, and the courts, but I say the president is constitutionally obligated to run the “permanent government” how he sees fit.
That doesn’t mean that I agree with the decisions that may be made. But it does mean that an effort to somehow shield the government from decisions of our elected leaders is anti-constitutional.
But, all executive offices and jobs, except for the presidency and the vice-presidency, are statutory creations of Congress. Is it unconstitutional for Congress to state in the relevant legislation what the official is supposed to be doing?
They do. Congress has oversight authority, if and when they choose to use it. And the president, all presidents, will fight against that. It’s set up that way on purpose.
I just don’t see what you’re trying to debate here. Sounds like you’re asking why the president doesn’t do what you would like him to do. The answer is simple: he disagrees with you on how things should be run.
No, I’m asking whether he is right or wrong in this particular aspect of the “unitary executive theory.” Certainly the Framers intended the executive to be “unitary” in the sense that they created one CEO rather than some sort of executive committee. But did they intend that his power to order about all executive-branch organs and officials be unlimited, even by acts of Congress? That is the theory Bush or, rather Cheney, has put forward, and acted as if it were the only constitutionally defensible theory. And this is a question that transcends any one administration.
Later I’ll see if I can get Savage’s book out of the library and review the relevant passages regarding what Bush/Cheney have done with this idea. But I recall countless instances over the past seven years, reported in the news and discussed on this Board, of efforts on their part to extend more and more centralized political control over the various federal agencies. Remember that attorney-firings thing?
A large part of this problem is Congress’ fault. They don’t want to make tough decisions, so they set up an agencies with insufficient statutory guidance that look good politically and they become pawns of the executive (or captured by industry). It is a systemic problem. Congress both won’t make difficult political decisions (so it gives the EPA massive authority) and, on the flip side, won’t make non-partisan decisions when necessary (so we need someone like the SEC).
The enabling legislation of an agency could very easily lead to better Congressional control, if they have clear statutes and purposes–you don’t need independence beyond that.
On the narrower question of whether independent agencies like the SEC and Judicial Sentencing Commission should be Constitutional, I find myself skeptical. Either Congress should delegate its authority sufficiently such that agency independence is irrelevant, or they should not delegate that authority and just do their jobs.
BG, I think you might be mistaken about the claims of unitary executive theory. The wikipedia citation does not suggest that Bush et. al think agencies aren’t subject to statutes. It says they think independent agencies, not subject to the President’s removal power and executive orders, are unconstitutional. Such agencies, in addition to the normal non-independent kind, are subject to Congressional statute even under unitary executive theory (I believe).
BG, I think you’re mixing two issues here. Your title is, “How much control should the Administration have over the bureaucracy?” But now you seem to be changing the question in a subtle but important way, in questioning whether independent agencies are constitutional. I think of the bureaucracy as something distinct from independent agencies. Does anyone doubt that the Fed is fundamentally different than the Department of the Treasury?
So let’s get down to brass tacks: are you questioning whether the President should control the Fed, or whether he should control the Department of the Treasury?
None whatsoever. Somebody needs to keep the wheels turning and, in my experience, knowing not a few of them, politicians are, as a group, blithering idiots. Under no circumstances should they be allowed near The Wheel of State. That’s what the pros are for. Politicos are for silly grandstanding and soundbites.
The Fed and the Treasury are both Organs of Government, and explaining the political difference between them would tax the capacities of most citizens and voters, and, indeed, most persons with graduate degrees in relevant fields. Is it not so?
No, not in the slightest. The Treasury Department is simply an executive agency. The Fed is an institution created with the intention of delegating some of Congress’ constitutional authority to regulate the value of money, so in order to protect the president from exercising influence on a power that is really held by the legislature, Congress established safeguards from direct presidential oversight or direction. Off the top of my head, I think that’s a decent (though not very terse) explanation of the political difference between the two… and my graduate degree is in diplomatic history!