POLISCI109e Midterm

President's First-mover advantage

- president gets to set budget agenda first

- president is the one who gets to make treaties first because Congress can't initiate treaties

Cabinet Agencies

- headed by: single person called the administrator (secretary)

- compromises of the president's cabinet

- who can fire these people: they are subject to civil service protections, limited causes for their termination

- state, treasury, DOD, DOJ, HHS, DOE, DOED, DOI, DOL, DOC, VA, HUD, EPA

Independent Agencies

- headed by: group of people called commissioner

- who can fire these people: removable by the president only for causes (not on policy disagreement politics)

- ICC, FTC, SEC, FTCC, CFTC, FEC, NLRB, NRC

Executive Office of the President

Presidents created structures to control bureaucratic decisions

Regulatory Review

Starting with Regan in 1981, agencies must run major decisions. past office of management and budget in EOP

partisan conflict

who staffs the executive branch and who picks them is a source of conflict, republicans across branches have stronger incentives to intervene on agency personnel democrats

Historical Norms - Washington

The Decision of 1789: Executive Personnel (up to secretaries) serve at the president's pleasure, removing executive office

Historical Norms - Jackson

unified presidential responsibility, increased agency personnel control with the Spoils System

Appointment Clause

He shall nominate and by and with the Advice and Consent of the Senate, shall appoint public ministers and all other officers of the United States whose appointments are not herein otherwise provided for

Vesting Clause

the executive power shall be vested in a President of the USA

Commander in Chief Clause

the President Shall be Commander in Chief of the Army and Navy of the US and of the Militia of the Several States, when called into the actual service of the US

Direct Access Clause

The president may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to their duties of their respective offices

Inferior Officer Clause

but the Congress may by law vest the appointment of such inferior officers they think proper in the Presidents alone, in the court of law, or in the Heads of Departments

Take Care Clause

He shall take care that the laws be faithfully executed

For-cause Protection

civil service employees cannot be removed from office without cause

Serving at the pleasure of the president

individuals that are political appointees but aren't subject to review by Senate, members of the cabinet who can be dismissed anytime

control-expertise tradeoff

basic tradeoff of congressional delegation to agencies: lose some control, but gain expertise

rule making - definition of rules

agency of general applicability and future effect design to implement, interpret, or prescribe law or policy describing the procedure or practice requirements of an agency

rule making - sources of new rules

regulatory actions being produced by agencies, each rule must have a brief statement setting forth the agency's initial determination whether the rule is a major rule

rule making - OIRA review

every agency has to submit to OIRA a program about its resources and priorities and review its existing regulations for modification, all of which can be subject to consultation of the VP and the Regulatory Working Group

Executive Orders

- presidents can direct action of an entire executive branch with the "stroke of a person"

- presidents don't face veto points

- EO's that issue directions are not self-executive, it needs institutions under loose presidential control to supervise

- tools of the president that depend on centripetal and centrifugal politicization

- tools of executive branch work best together (direct instructions must work with supervision)

- EO'S are vulnerable

-- can be revoked as easily as they are passed

Legislative Veto

Congress can veto actions by the president

limitation riders

Congress can put limitations on appropriation bills that allow Congress to forbid agencies from spending money for specific uses

Congressional Review Act

federal agencies submit a report on new rules to Congress that let them overrule or oppose

Interpretation of Law

President has to comply to the court because the Supreme Court court sits on a level of interpretation that the President and Congress don't have

Interpretation of Fact

fact-finding judgments can affect how agencies gather data and implement regulations

Pendleton Act of 1883

- created a competitive service known as the merit system

- candidates took exams, appointments went to the top performers

- merit employees could not be fired for failure to donate or participate in campaigns

- enabled classification by president

- partisan politics drove cvil service reform into practice

- largest classification came from outgoing Presidents facing party changes

Formal Article II Powers

Formal text grants of formal power to the president over the executive branch

Historical Example of Expansion of Presidential Authority - Andrew Jackson

1. bank war: control over appointees policy decisions

Historical Example of Expansion of Presidential Authority - John Tyler

1. politicized appointment power (threatened impeachment over it)

2. packed administration with family

3. ended cabinet votes over major policy positions

Historical Example of Expansion of Presidential Authority - James Polk

1. personal oversight of budget

-- assertion of power in the policies appropriated by Congress

-- took request from agencies and departments

-- required the proposals run by them

2. used surplus to prosecute Mexican War

Constitutional Origins of Unitary Executive Theory

make bureaucratic government competitive with presidential control, relevant political direction is from the president and only the president

Constitutional Origins of "small r" republican leadership

make strong executive compatible with democracy, including expression of will by Congress

- relevant political direction can come from the president or congress

- this is the essence of the framer's problem, they chose a single executive to protect democratic accountability

- no founding era practices suggest illegitimacy of legislative input

Challenges to UET

control over executive has long been shared between president, congress, and courts

- UET amplifies changes in policy due to changes in the party of the president

- by locating unitary executive power in the constitution, UE theory supersedes any law or custom to the contrary

UET Differences with authoritarianism

- what the executive branch does depends on the president's agenda and customary practice

- the new president has control over executive branch, what executive branch does depends on the president's agenda

- customary restraints are illegitimate

- Authoritarianism weakened the other branches and focuses on absolute authority that is suppressive

centripetal politicization

bringing agency action to the president, centralization of authority

centrifugal politicization

taking the president's will into agencies, diffusion of president's people

PAS (Senate Confirmed Positions)

fixed by law, about 1,000 most senior policy making role in agencies and departments

Non Career SES (Senior Executive Service)

variable, under president's control, about 500-600 employees

Schedule C Appointees

in direct contact with career civil servants, under the president's control, about 1,500, "policy-making role subordinate to other appointees"

Moe's Argument about driver of institutional development

- nationwide constituency: the focus of presidents and an incentive for politicization

- public, media expectations: media scrutiny as well

- accountability: making things happen on a national scale, to meet demands the president needs information to devise policy and capacity to implement it

responsive competence

politicization means presidents will take some competence for responsiveness

control/competence trade-off

basic tradeoff of congressional delegation to agencies: lose some control, but gain expertise

Normative Justification of Bureaucracy in representative democracy

voters control elected branches, elected branches control bureaucratic policy making, by transitivity of control, the voters are control of the whole show

"deep" state

in Trump's administration, the deep state came to stand for administrators operating throughout the executive branch to put their own interest and ideology ahead of the preferences of their chief executive

"Deep State" V1

the deep state is a bureaucracy insulated from any political control, leaving bureaucrats to advance their objectives no matter what elected, stymie objectives of elected officials

"Deep State" V2

the deep state is a bureaucracy of incomprehensibly broad scope that is deeply embedded in all facets of everyday life

"Deep State" V3

the deep state is an insular cadre of bureaucrats who set boundaries on acceptable actions of elected officials or even who rules (a conspiracy theory)

"Strong State"

the Constitution system of checks and balances fragments authority, dispersing power and fracturing the unified, hierarchial lines of control

bureaucratic autonomy

bureaucrats can enact related policies they prefer even against the interest or "hierarchical" superiors

- they have the real authority of policy

- they give programs to life and affect the content of these programs

- something in between the laws articulated by Congress and the policy implemented by government is the discretion and policy entrepreneurship of the bureaucracy

Civil Service and Bureaucratic Capacity

1. policy discretion for bureaucrats

2. civil service protection for bureaucratic careers

policy discretion

career bureaucrats have a direct role in shaping policy

- they are people who care about policy so they find this job rewarding

- they are motivated

- this is in contrast to the spoils system where there was no policy determination so people were mainly getting jobs for pay and security

civil service protections

long term career produce:

1. strong incentive for policy-motivated staff to invest in expertise: long stream of payoffs

2. long careers -> institutional memory of program history, details, success and failure

Deep State's relationship to UE Theory

the unitary executive theory thrives on deep state fears, UET goes further where presidential control is essential for democratic accountability of administration state

- president has stronger tools, better incentives of broad control than congress

- president has stronger democratic pedigree than courts

- so president is best placed to keep bureaucracy accountable

- if you wanted to justify unitary executive power, you should invent a deep state

Brownlow Committee

FDR proposed broader, new powers for the President over the Executive Branch, committee came up with recommendations that would aid the president

office of management and budget

key for anything involving the executive departments (500 staff in this office alone)

- budget request clearance, everyone's budget goes through them

- legislative clearance

- regulatory clearance (office of information and regulatory affairs)

- agency and program evaluation

office of personnel management

HR of the federal government, hires new government employees

Executive Office of President's role in politicization

- agent of centripetal politicization

- EOP makes agency policy run through the president

- EOP is home of the OMB which carries out regulatory review

- EOP does not typically implement policy, does not interface with public, regulated business, grant receipts

- EOP helps president figure out what agencies are doing and what they should do

- EOP faces with departments of the president

- because the EOP is the president's agent, it judges "should" relative to president's priorities and interests

Growing Need for Presidential Control

Two Sources:

1. increasing technical complexity of policy

2. presidents as national party leaders

Executive Orders Durability

executive orders are more durable when:

- based on firm legal authority or recent statutory authority by Congress

-- looks at executive order is citing anything said by Congress

-- "by powers vested in me" are less firm

- consistent with ideology across administrations

-- executive orders that accumulate power in the presidency tends to be more durable, subsequent presidents keep it in place

-- still use the modification and extension to independent agencies, every president likes to have tools for authority

Constitutional Authority Claims

"powers vested in the president" by Constitution's Article 2 Section 1

Humphrey's Executor 1935

a commissioner of the federal trade commission who was terminated by president FDR because of Humphrey's unwillingness to go along with FDR's agenda

- removal for political reasons are not allowed to be reason of dismissal

- only reason for dismissal is insufficient duty, administrator is underperforming, or commitment of illegal acts

Agency Work determines politicization

bureaucrats are not politically neutral, so bureaucracy invites competing attempts to influence, conflict plays out in agency structure

politics of appointments

- appointees are the president's people, carry out his objectives into the departments, they are the agents of politicization

- agencies with more political continuous policy domains get more appointees

- agencies that manage other agencies get more appointees

- agencies with more technically demanding policy domains get fewer appointees

Limits of the Presidency

departments develop interest from the president, presidents get outmatched

impoundment

act of president spending money that has not been appropriated by Congress