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Article Excerpt
As with most aspects of the Constitution, the power of presidents to hire, fire, and otherwise create an administration consistent with presidential tastes leaves much to the imagination. Much of the definition of appointive and dismissal power, and the creation of executive coherence through the power of appointment and, hence, the terms of service of appointees, would eventually be shaped through case law, interpretation, and the evolution of constitutional tradition. Sections 2 and 3 of Article II of the Constitution are especially relevant in this regard. Article II describes the executive power. Section 2 of that article refers to the conditions of appointment. Specifically, it says that the president
... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law, vest the Appointment of such inferior Officers, as they think proper in the President alone, in the Courts of Law, or in the Heads of Departments.
Moreover,
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next session.
One of the key phrases in the constitutional text is in the part that discusses the appointments of inferior officers--that is, the offices not specifically noted in the foregoing passage from Section 2. Such "inferior officials" do not have to be approved by the Senate but, once enabled by statute, may be appointed directly by the president or the president's "Heads of Departments." Equally notable is the limited permission given to presidents to fill vacancies when Congress is not in session--the so-called recess appointments. Although limited to a year with pay, the recess appointments are not merely used to fill offices in emergencies but also, and more importantly, to fill offices when the Senate has delayed or otherwise indicated its distaste for particular presidential nominees.
In Section 3 of Article II, the president is given the authority to "take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." The two powers and sections of Article II, taken together, constitute the origins of what in contemporary terms has become known as the administrative presidency. The "administrative presidency"--a term originated by Richard Nathan (1983), an academician and former executive branch official during the administration of Richard M. Nixon--is predicated on the president's control of the elements of administration--finances, laws, and people. The struggle for control over finances is a complicated one. Strictly speaking, the Constitution gives to Congress the power of the purse based on appropriations. Appropriations are the discretionary part of the budget. They constitute a continuously declining portion of the federal budget, however. The rise of entitlement spending (which also includes the pension benefits of federal civil and military officers) crowds out discretionary spending, as do the requirements to finance the deficit. The struggle over discretionary spending continues, with Congress holding the upper hand on domestic pork and the president having the advantage in defense appropriations. But both the president and Congress are losing ground to the expenditure commitments created by programs from the past--an obstacle to both congressional control and presidential command of the executive.
This makes laws and people especially important elements of the administrative presidency, and they tend to be presidential advantages in the struggle to create a unified executive centered in the presidency. The ability and willingness of the president to make law unilaterally through executive orders, administrative regulations, and structural rearrangements of the executive is now well established (Aberbach 2008; Howell 2003; Mayer 2001; Moe 1985; Moe and Howell 1999). In constitutional theory, the "take care" clause was likely meant to ensure that the president would faithfully carry out the acts and will of Congress--the will of which often would prove hard to discern or decipher. In practice, it has given the president the upper hand in defining, interpreting, and, ultimately, modifying the laws Congress passes to suit presidential tastes whenever possible and whenever presidents are of a mind to do so. Of course, Congress can respond in order to constrain the exercise of unilateralism when it chooses to do so. But it doesn't often choose that course because of the difficulties of producing overwhelming veto-proof majorities in both chambers. Moreover, judicial interpretations often have been favorable to executive discretion by allowing administrative discretion on all matters not expressly prohibited by the guiding statute. (1) In other words, executive authority need not rest exclusively on legislative guidance; it also may be exploited through the vacuum of legislative silence. As well, presidents can rearrange the executive furniture, so to speak, to make it easier for the White House to assert executive command, or at least to be in a position to require clearance of the regulations and other actions of the numerous agencies of the executive branch. Some of this does require legislative action--for example, the creation of the Office of Management and Budget from the old Bureau of the Budget, and the creation of the National Security Council (but, more importantly, not the creation of the council's staff or the assistant to the president for national security). But other actions, such as requiring departmental and agency legal counsels' offices to seek clearance from the Justice Department prior to issuing rulings and guidance--a tactic initiated by the Ronald Reagan administration to try to rein in potential outliers--are not dependent on legislation.
The final element of the administrative presidency (Nathan 1983) is personnel, which is the subject of this essay. Any president wants to have people who are more likely to do his or her bidding than not. Yet presidents are potentially constrained by other considerations. Equally, these considerations may reinforce what presidents are otherwise predisposed to do.
First, presidents must pay attention to their party and political support base. That is the consequence of the spoils system that emerged with the growth of professionalized political parties. In an earlier era, the political parties themselves filtered appointments, but these appointments are now mainly vetted through the White House (Weko 1995). As particular interest groups have come to be closely linked to the Democratic or Republican Party, attention also must be given to those groups that are most relevant to the president's party's political support base. It is an open question as to whether representatives or advocates of these groups represent the president's administration outward or facilitate claims inward and thus constrict the presidential administration's degrees of freedom.
Second, at least some of the time, presidents must recognize considerations of competence on matters that they think are important to the policy success of their administrations. Competence, of course, is in the eye of the beholder, and while presidents typically want responsive rather than neutral competence (Moe 1985), they also must concede to occasionally needing some measure of policy competence--typically in matters involving national security and macroeconomic concerns, although some critics of the George W. Bush administration have called this supposition into question.
Third, most presidents are unfamiliar, once past the first-tier appointments, with the people the American system peculiarly gives them the power to appoint. The Constitution allows that power to be delegated, and traditionally that is the way the "inferior" offices have been filled. However, the White House has been playing a much larger role in recent decades in vetting and even initiating appointments at levels below the first-tier cabinet-level appointments. In its second term, the Nixon administration moved known loyalists from its White House staff into cabinet departments whose nominal heads lacked independent political standing in contrast to their equivalents in the first Nixon administration (Nathan 1983). The Reagan administration was similarly, but more ideologically, motivated to appoint young enthusiasts of the conservative movement to secondary and tertiary department and agency positions--in some instances even prior to the naming of the cabinet officials. The basic idea was to constrain those cabinet members who were readily confirmable and perhaps more independent from straying from the Reagan administration's policy plans. The vast number of appointments that presidents theoretically have at their disposal--most of which do not require Senate confirmation--can be crucial to their administrations. Yet no president can plausibly know either all of the positions or all of the possible job candidates. Above all, presidents worry about people who stray from the White House line. They worry about leaks. They worry about embarrassments of a variety of sorts. They worry about offending constituencies that are critical to their political success. In administrative terms, the greater the number of people who are delegated authority, the more the White House has to worry about controlling them. In parliamentary systems, a corps of professional civil servants typically serve a tiny number of political officials above them. Their roles are premised essentially on the notion of neutrality--that is, the same people can serve loyally in governments of different political predilections. Whether career officials really can be neutral is a fundamental question. But even if civil servants can be helpful to political leaders of different persuasions, they may be more biased toward the status quo than toward any political party predilection (Aberbach, Putnam, and Rockman 1981; McCarty 2004). For those political leaders and their supporters who want to vigorously attack the status quo, comfort with the status quo may be an especially deadly sin.
The American system, in any event, has evolved in quite a different way, with political appointees serving in roles that, in other developed systems, would be filled by senior civil servants. The upshot is that when a new president settles in, there is a need to recreate the executive personnel system in a far more extensive way than is typically the case in other developed democracies. The process of vetting at every level--executive and legislative--leads to delays in filling positions and has created a complex and time-consuming process of appointment. The growth in the sheer number of appointees requiring Senate confirmation has been staggering, most of it occurring at secondary and tertiary levels and below (Light 1995; Mackenzie 2001). Between 1935 and 1998, for example,...
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