Sourcebook of United States Executive Agencies (Selin and Lewis, 2018)

 # About the Administrative Conference of the United States (ACUS)

• Mandate and Purpose: The Administrative Conference of the United States (ACUS) is an independent federal agency dedicated to improving the fairness, efficiency, and effectiveness of federal agency processes and practices through consensus-driven applied research.
• Membership Structure:
  • The Council: Includes the Chairman and $10$ other presidential appointees.
  • Senior Government Officials: $50$ members drawn from federal agencies, boards, and commissions.
  • Public Members: $40$ members from the private sector and academia, reflecting a wide diversity of views.
  • Staff: Supported by a small, full-time staff in the Office of the Chairman.
• Key Functions and Impact:
  • Conducts research that serves as the foundation for best practices.
  • Issues formal recommendations to agencies, Congress, or the Judicial Conference.
  • Since inception in $1968$, it has issued over $200$ recommendations, many enacted into law or followed by agencies and courts.
  • Focus areas include e-Rulemaking, video hearings, and alternative dispute resolution (ADR).
  • Acts as a central resource for nonpartisan, expert advice and reference guides on administrative procedures.

Defining the Federal Executive Establishment

• Conceptual Distinction: The report uses the term "federal executive establishment" rather than "executive branch" because numerous agencies do not fit neatly into the executive branch. They may be designed to be outside the direct control of the President or Congress.
• Scope of Governance: In $2017$, the establishment employed approximately $2.68$ million civilians (excluding undisclosed intelligence personnel), $1.38$ million military personnel, and an estimated $7.5$ to $10$ million contract and grant-funded employees.
• Defining a "Federal Agency": There is no single overarching definition in law.
  • Administrative Procedure Act (APA): Defines an agency as "each authority of the Government of the United States," excluding Congress, the courts, and territorial governments.
  • Sourcebook Definition: For this report, a federal agency is defined as a federal executive instrumentality directed by one or more political appointees nominated by the President and confirmed by the Senate (PAS).

The Executive Office of the President (EOP)

• Historical Evolution:
  • Early presidents paid staff from their own salaries; Congress first appropriated money for presidential staff in $1857$.
  • The Brownlow Committee (1937): Formally known as the President’s Committee on Administrative Management, it argued the President needed help and recommended staff expansion.
  • Reorganization Act of 1939: Created the EOP, which initially included the White House Office and the Bureau of the Budget (now OMB).
• Structure and Responsiveness:
  • The EOP is a "warehouse" for distinct agencies (currently $12$ units, employing $1,876$ people).
  • Staff are considered the most responsive to the President, as they generally lack "for-cause" removal protections.
  • The "Czars" Controversy: Pejorative term for White House policy coordinators who may lack direct democratic accountability or Senate confirmation, potentially interposing between the President and Cabinet Secretaries.
• Financial Constraint:
  • The Russell Amendment (1944): Prohibits using appropriations to fund any agency established by Executive Order if it has been in existence for more than one year without specific congressional authorization.

Executive Departments (The Cabinet)

• Historical Development:
  • The first departments (Treasury, State, and War) were created in $1789$.
  • Growth followed national crises or clientele pressures (e.g., Agriculture in $1889$, Homeland Security in $2002$).
• Structural Characteristics:
  • Hierarchy: Managed by a Secretary, Deputy Secretary, and various Under and Assistant Secretaries.
  • "Holding Company" Departments: Many departments (e.g., Defense, Interior) act as aggregations of autonomous bureaus with their own legal authority delegated by statute.
• Scale of Personnel (2017 Estimates):
  • Department of Defense (DOD): $737,855$ civilians.
  • Department of Veterans Affairs (DVA): $373,149$ employees.
  • Department of Education (DOED): $4,362$ employees (highest percentage of political appointees at $0.04\%$).

Independent Agencies and Commissions

• Origin: Began with the Interstate Commerce Commission (ICC) in $1887$. Congress sought expert, bipartisan entities insulated from partisan politics.
• Criteria for "Independence":
  • Location: Established outside the Executive Departments or EOP.
  • Structure: Features intended to limit presidential control (e.g., multi-member boards, fixed/staggered terms, party-balancing requirements).
  • Removal Power: Most critical is the "for-cause" protection, meaning the President can only remove a leader for "inefficiency, neglect of duty, or malfeasance in office."
• Types of Hybrid Entities:
  • Government Corporations: Wholly or partially government-owned instrumentalities (e.g., FDIC, TVA) that perform business-like functions.
  • Government-Sponsored Enterprises (GSEs): Private, for-profit organizations created by Congress to facilitate credit in specific sectors (e.g., Fannie Mae, Freddie Mac).

The Federal Personnel System

• Pendleton Act of 1883: Established the merit-based civil service system, initially covering $10.5\%$ of federal jobs.
• Modern Pay Systems:
  • General Schedule (GS): Covers administrative and professional jobs ($15$ grades).
  • Federal Wage System (FWS): Covers blue-collar work.
  • Senior Executive Service (SES): Created by the Civil Service Reform Act of $1978$ for top managers; no more than $10\%$ can be political appointees.
• Four Categories of Political Appointees:
  • PAS: Presidential Appointment with Senate Confirmation ($1,237$ positions).
  • PA: Presidential Appointment without Senate confirmation.
  • NA: Non-career SES appointments.
  • Schedule C: Appointees in policy-determining or confidential roles (e.g., speechwriters, assistants).
• Systemic Trends:
  • Thickening Government: Proliferation of management layers; by $1992$, the number of "title-riding" positions per Assistant Secretary rose to $5.8$ from $1.4$ in $1960$.
  • Decentralization: Growth of agency-specific personnel systems (e.g., Postal Service, FAA), making centralized management by OPM difficult.

Creation and Termination of Agencies

• Creation Mechanisms: Statute, Executive Order, or Reorganization Plan (the latter authority lapsed in the $1970$s).
• Motivation for New Agencies: Often created when existing agencies are perceived as resistant to new missions or ideologically misaligned with the President.
• Agency Longevity: Between $1946$ and $1997$, $62\%$ of new agencies were terminated or substantially reorganized.
• Insulation Features:
  • Bypassing OMB: Some agencies (e.g., CFPB, FED) can submit budget requests and legislative testimony to Congress without OMB clearance.
  • Independent Litigating Authority: Some agencies can represent themselves in court without the Department of Justice.
  • Self-Funding: Agencies that operate on fees or assessments (e.g., OCC, USPTO) are less susceptible to congressional "power of the purse" controls.

Mechanisms of Political Control and Oversight

• Presidential Tools: Appointments; OMB review of budgets, communications (Circular A-$19$), and "significant" regulations (Exec. Order $12,866$).
• Congressional Tools: Appropriations; Confirmation of PAS nominees; Hearings; Reporting requirements; Earmarks and limitation riders.
• Oversight Redundancy: The Department of Homeland Security was overseen by $108$ different committees/subcommittees at the time of the $9/11$ Commission Report.
• Transparency Mandates:
  • Inspector General Act (1978):
    • "Establishments": $PAS$ Inspectors General.
    • "Designated Federal Entities": Agency-appointed Inspectors General.
  • The Sunshine Act (1976): Requires multi-member bodies to hold open meetings.
  • Chief Officer Mandates: Requirements for Chief Financial Officers ($CFO$), Chief Information Officers ($CIO$), and Chief Human Capital Officers across major agencies.