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Authors: Judith E. Michaels

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Page 13
in policy administration is a forceful lever for change yielding significant results," there are costs to such a strategy. Congress, by paying too much attention to administrative and implementational detail, undercuts its own capacity for effective oversight. Bureaucratic accountability then suffers as an overburdened Congress focuses on details rather than on broad policy issues (ibid., 6, 9).
Because presidents and their appointees operate in a limited time frame they are more inclined to take short cuts (of sometimes dubious legality, or even outright illegality, e.g., Watergate, Irangate) and less inclined to develop norms of cooperation. However, if they follow their short-term interests in the name of policy advancement, they are more likely to provoke congressional retaliation, as transpired in the Nixon era. What happens then, of course, is that presidents have incentives to take more short cuts or violate laws to circumvent congressional response, as occurred in the Reagan administration's Iran-Contra scandal, a prime example of policy desires driven by a short time frame overcoming institutional integrity.
Because the bureaucracy and the Congress have no choice but somehow to work together, NAPA calls for a long-term commitment to reforming the relations between these two branches of government: a new era of bridge-building between the two sides of divided government to reduce tensions and improve the operation of government.
Some also look to the development of new norms of cooperative behavior as a way to move the American system of governance beyond paralyzing competition. In order to avoid congressional and judicial backlash they urge presidents to cast their command and control net more narrowly in order to "influence a government that they only partially head and which has an executive apparatus that is not under their exclusive control" (Aberbach and Rockman 1988, 611).
Bureaucratic Legitimacy, the Separation of Powers, the Politics/Administration Dichotomy, and the Administrative State
The issues surrounding the roles and relations of the PASs within the bureaucracy are many, varied, and complex. They spring in part from the ambiguous role of the bureaucracy itself and, in part, from the de jure and de facto aspects of its context. On the one hand, the bureaucracy is not identified, per se, in the Constitution of the United States, and so lacks the automatic de jure legitimacy of the legislative, executive, and judicial branches. On the other hand, history has played a key role as the bureaucracy has grown and developed, along with the nation, to meet the in-
 
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creasing demands placed on the government by the citizenry. Its very existence and size, not to mention its essential place in modern government, give the bureaucracy a de facto, if sometimes begrudged, legitimacy.
In fact, the omnipresence and power of the bureaucracy in American life provides grounds for more-than-grudging acceptance of the legitimacy of the nation's permanent government:
Knowingly or not, Americans are governed by a modern administrative state which has developed alongside and within constitutional democracy. People's lives, fortunes, and futures are today decided by both the Constitution and an administrative state. Grafting this "unwritten constitution" into our written document (remember, the U.S. Constitution says nothing about bureaucracy, budgets, personnel rule, civil service, or legislative oversight, and it does not use even the term, "executive branch") was a substantial accomplishment, perhaps matching some of the brilliant achievements of the Philadelphia Convention in 1787. (Stillman 1987, 6)
The constitutional separation of powers comes from the founders' desire "to create a system that would give each branch a motive and a means for preventing abuses or misguided action by another. This would prevent the 'accumulation of all powers, legislative, executive, and judiciary, in the same hands"' (Rosenbloom 1983, 224).
This separation fostered the development of the theory of the politics/administration dichotomy when, late in the nineteenth century, with Congress ascendant and problems with the patronage system readily apparent, a growing reform movement sought to end corruption by strengthening the executive. Another group of reformers sought to strengthen the legislative branch to the same end. The politics/administration dichotomy, with its simplistic "division . . . between deciding and executing," provided the answer to the constitutional "ambivalence in the status and direction of American public administration" and united the two groups of reformers in a compromise position. ''The dichotomy in its less rigid form appeared as an innovative and promising development. Even a crude version could provide some support for the emergence of the administrative state" (O'Toole 1987, 18).
The Pendleton Act of 1883 created the civil service and enshrined competition-based merit in the American personnel system. It also strengthened the separation of powers and furthered the development of the administrative state through its implicit support for the politics/ad-
 
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ministration dichotomy. The act's commission mechanism insulated "the civil service and various aspects of its administration from the overtly political actors in government; the Pendleton Act erected a kind of politics/administration border" (ibid.). It also distinguished positions related to government careers from strictly political appointments. It allowed the Congress and the executive to take a step back from the treacherous shoals of patronage and at the same time created "'the first institutional recognition of the president' as 'the active head of the administrative system.' The Pendleton Act was a momentous innovation in the American system of governance because it simultaneously strengthened executive leadership, legitimized neutral competence as the goal of the civil service, and gave a boost to the separation of powers" (O'Toole 1987, 19-20).
The Hatch Acts of 1939 and 1940 served to augment the original Pendleton Act's goal of creating a neutral civil service by prohibiting permanent federal employees from engaging in certain partisan activities, such as running for party office, some campaign activities, and fund-raising. They also insulated them from political pressure by forbidding political superiors to "entice or coerce partisan support from the bureaucracy." While maligned and altered several times since their inception and in large measure repealed in 1994, the acts "represent quite clearly an American effort to accommodate the neutrality goal, embraced by the politics/administration dichotomy, in a system of party competition, fragmentation, and separation of powers" (ibid., 22).
However, the separation of powers also created a "tendency toward inaction," because the checks and balances designed to keep the three branches of government coequal "also serve(d) as a check on popular political passions," making the government responsive to issues of broad agreement among the electorate, but only in the long run (Rosenbloom 1983, 224). In the short run, this form of government tends toward "inertia and inflexibility." To counter this tendency, the nation has gradually developed a more flexible ''administrative state" to respond as needs arise and circumstances change. An unintended consequence of this is that the powers have become more merged than separated in an institutional bureaucracy that "makes rules (legislation), implements these rules (an executive function), and adjudicates questions concerning their application and execution (a judicial function). [Thus is seen] the collapsing of the separation of powers" (ibid., 224-25).
With the collapse of the separation of powers has come the virtual collapse of the formal politics/administration dichotomy. O'Toole's perceptive insight is that "focusing on the separation of powers in the na-
 
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tional government's structure neglects the important reality of sharing" of powers that goes on between the executive and legislative branches. The existence and operation of numerous regulatory agencies demonstrate the reality of powers shared on the current governance landscape (O'Toole 1987, 23).
Exercising Power in the Administrative Presidency
Lacking unambiguous constitutional authority to manage the administrative state, what resources are at a president's command to do so? Advocates of the strong presidency lament the president's lack of real command power to master the "unruly beast" that is his or her own bureaucracy: "The most difficult task most presidents face is trying to sell their programsnot to Congress but to the bureaucracy. This is the case even when an agency is headed by an official selected by the president" (Waterman 1989, 20). There are, however, three well-worn strategieslegislative, judicial, and administrativethat presidents can use to promote their policy objectives both inside and outside their administration. A legislative strategy focuses on passage of favorable legislation and involves close work with congressional leaders. A judicial strategy focuses on the selection of judges who are supportive of administration goals, and it seeks heightened court activity on behalf of policy goals. An administrative strategy looks to political appointees to shape the bureaucracy so that policy goals are paramount (Nathan 1986, 125). Richard Nathan was once in Richard Nixon's employ and, by his own
admission, "no shy flower" when it came to advocating a strong president. He represents those who think it "appropriate and, in fact, desirable in our governmental system for political appointees to be involved in administrative processes." Because the agencies they head are legally empowered to create, implement, and adjudicate regulation, the PASs have significant power to set direction and tone for their agency. The responsive competence embodied in the president's own appointees is expected to dominate and lead the careerists' neutral competence to govern in accord with the president's agenda (Nathan 1985, 376-77).
1
Nixon is widely credited with originating what Nathan christened "the administrative presidency," though FDR, Eisenhower, and Kennedy had all used it to some extent, devising new programs and agencies to bypass the existing administrative structures. President Eisenhower's 1953 creation of Schedule C political appointments allowed higher-level appointees to place partisans deep in the agencies as secretaries, confiden-
 
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tial assistants, even chauffeurs, as low as General Schedule (GS) grade 9. Jimmy Carter's civil service reforms of 1978 created the Senior Executive Service, composed of noncareer partisans (10 percent) and supergrade (GS 16 to 18 or equivalent) careerists (90 percent) significantly accountable to political supervision. With these and other innovations, presidents hoped to find more political responsiveness in new people and agencies loyal to them and their policy ideas.
In the modern era, this substitution of "responsive competence" for "neutral competence" becomes even more pronounced in a time of divided government, in which one or both houses of the Congress and the White House are in the hands of different parties. Divided government has become the modus vivendi of American government; consequently, one should expect more use of the administrative presidency as presidents seek to achieve through administrative means what they cannot through legislative
2
The administrative presidency puts the career bureaucracy in a difficult position. Careerists must be both neutral and competent, serving the policy goals of the current president yet maintaining sufficient professional proficiency and credibility to work effectively and efficiently in their agency. Their success at the former, however, makes them suspect the next time the White House changes parties (or even presidents within the same party).
As the administrative strategy developed over time, so did an array of tools with which to implement it and to elicit responsive competence from the bureaucracy. These tools are the powers to: appoint and remove surrogates, control budgets, reorganize agencies and government, delegate program authority to the states, mandate central clearance from the White House for agency actions, and order cost-benefit analysis before decisions are made (Waterman 1989, 185-86).
While confrontation can be an effective tactic, prudent exercise of the administrative tools can best be of use to presidents if they understand the limits of their power and are careful not to invite unintended or poorly planned confrontation. These tools can also be used in tandem, as, for example, when loyal appointees support Office of Management and Budget (OMB)-mandated budget reductions in their own agencies, in which case, surrogates, central clearance, and budget control are all utilized.
The improvident use of these tools, however, can weaken the presidency more than strengthen it. These tools are also based on the questionable assumption that presidents
can
control the bureaucracy, an assumption that may not give sufficient credit to the tenacity of the
BOOK: The President's Call: Executive Leadership From FDR to George Bush
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