GOVT 2302

The Executive Evolution

In this section we trace the development of the executive branch over American history.

Blog Tags:

- executive power.- executive agencies.- imperial presidency.

- presidential persuasion.- regulatory agencies.

- regulations. - the bureaucracy.- agency capture.

- justice department. - EPA.

The increase in authority and power has been substantial.

Some evidence:

First: After the creation of 3 executive departments by the 1st

Congress, 12 more have been created.

Recall that no executive departments are created or

mentioned in the Constitution.

The first three:

State Department (1789) Treasury Department (1789)Department of War (1789)

Then:

Department of the Interior – 1849 Department of Justice – 1870

Department of Agriculture – 1889 Department of Commerce – 1903

Department of Labor – 1913 Department of Defense – 1947

Department of Health and Human Services – 1953 Department of Housing and Urban Development – 1965

Department of Transportation – 1966 Department of Energy – 1977

Department of Education – 1979 Department of Veterans Affairs – 1989

Department of Homeland Security – 2002

Note that the establishment of each department reflects an

expansion of national power into an area where often that power

did not previously exist.

Second: Over history, hundreds of bureaus and agencies have been

established within those departments.

Often these are created in response to a crisis that led to the passage of

legislation that created an institution to deal with that crisis.

When Congress creates a new agency it delegates power to it.

Instead of having to pass legislation, Congress authorizes the

new agencies to issue rules to carry out the agency’s function.

We will discuss the issues associated with rulemaking later.

Some links explaining rulemaking further:

- Regulations.gov.- Rulemaking – US Department of Labor.

- FCC: The Rulemaking Process.- rulemaking.wordpress.com.

- FAA: Rulemaking.- EPA: Rulemaking.

- SEC Regulatory Actions.

Agencies that exist within one of the executive departments are called bureau level agencies.

Example #1: The Federal Bureau Of Investigation exists within the

Justice Department.

Here’s their organizational chart:

Agencies also exist outside the structure of executive

departments.

This is to provide them a degree of independence form the president.

There are three types:

Independent Agencies

These are agencies with powers over public services too expensive

or important to be left to the private sector.

Examples:

NASACIA

Government Sponsored Enterprises.

Similar to independent agencies, but structures like private companies.

Examples:

AmtrakU.S. Post Office

Fannie MaeFreddie MacSallie Mae

Independent Regulatory Commissions

Entities granted powers to make broad rules regulating some aspect

of the economy.

Examples:

FTCFCCSECEPA

Third: A three part advisory system for the President. These allow the

president the ability to manage the executive branch.

Note that the president does not rely on the advise and consent of the Senate as originally designed.

These are the three groups of advisers:

White House StaffExecutive Office of the President

The Cabinet

White House Staff

These people work directly for the president – meaning that they are

hired and fired by him - and are responsible for organizing his day

to day activities.

Executive Office of the President

Developed in the late 1930s to assist the president in setting the policies to be implemented by the

bureaucracy.

The Cabinet

Composed of the heads of the executive departments. Each department contains a large

number of smaller agencies. They do the actual implementing of law.

4 - With the creation of these agencies came a large federal

workforce that developed a degree of autonomy.

The Civil Service Commission

The growth may have confirmed the fears some had about the

creation of a singular presidency.

The Anti-Federalists were worried about the potential strength of the executive branch. There would be a gradual increase in power in the

office at the expense of state power.

They were right to be concerned. The executive branch has grown in size and strength over the course

of American history.

Question:

Is this expansion the result of presidential aggression or a

legitimate response to the need of the republic as they presented

themselves?

Constitutional Dispute:

Should the Presidency be active or passive?

Should the office lead or follow?

Does Presidential authority boil down to how one interprets Article 2?

Two views of presidential power from two presidents.

Theodore Roosevelt

Saw himself as a “steward of the people” and was bound to do anything he saw fit in their

interests. As president he thought it was legal to do anything that the office was not

specifically prevented from doing.

TR v

Bigfoot

!!!

- Pushed a “progressive” agenda. Similar in spirit to today’s “liberal” agenda.- Used the authority granted in the Sherman Anti-Trust Act to break up monopolies, reversed laissez-faire policies.- Aggressively used military and diplomatic power, reversed isolationist policies.- Promoted the passage of the Pure Food and Drug Act, increased regulations.- Developed a strong relationship with the press, promoted the expansion of presidential power and visibility.- Expanded the National Park System. “. . . he designated 150 National Forests, the first 51 Federal Bird Reservations, 5 National Parks, the first 18 National Monuments, the first 4 National Game Preserves, and the first 21 Reclamation Projects.”

William Howard Taft

Adopted a restricted reading of Article 2. Believed the president was only able to

perform those functions either specifically detailed in the document or granted by a law passed by Congress that was itself based on

some clearly delegated power.

While Taft continued some of TR’s agenda, he did not use the press to promote them. This had the effect of alienating almost everyone. He

did not see the president as “leader” of the nation.

He would later serve as Chief Justice of the Supreme Court. He is

the only person to occupy both positions.

The Taft Court.List of cases decided by the Taft Court.

Since the Presidency of Franklin Roosevelt, the executive branch has emerged as the dominant

branch of government.

Most Americans would probably argue that the executive branch is the primary branch of government because it seems to be where most

action takes place.

Presidents do more than simply oversee the implementation of the

law.

They tend to run for office promoting legislative agendas, not their expertise as administrators.

The Constitutional role of the office as Chief Executive, and little

more, seems to have been forgotten. There are at least two

reasons for this.

First, Congress has expanded the powers of the executive branch by passing laws over time granting it new functions as well as a degree

of discretion in how these laws should be implemented.

The executive branch, through rulemaking powers, has been able to claim some legislative powers, meaning, a degree of autonomy

from the legislative branch.

Rule making is a key component of bureaucratic power. It gives the

bureaucracy discretion in implementing laws depending on

how the law is written.

How much discretion should the executive branch have in implementing the law?

These powers give presidents the ability to respond quickly to

events, quicker than Congress.

Examples: a recession, or a crisis like the Gulf Oil Spill.

Second, modern media technology has allowed presidents to connect

directly to the American public and, if popular, mobilize them

behind their proposals.

The White House Staff contains a communications office which

attempts to influence how the president is seen by the general

public.

Persuasion

This allows presidents to persuade the general public and Congress to

go along with their proposals.

A popular President, or at least one who is more popular than

Congress, or his opponents, can “go public.”

Take a message public and use public opinion to persuade others

to go along.

This requires a president to be mindful of his approval ratings.

Gallup Presidential Approval Center.

The contemporary President has more tools to work with and a

greater ability to connect with the general population than did

previous presidents.

Third, by the dawn of the 20th Century the United States became

a force on the world stage.

The president’s unique powers over foreign affairs (diplomatic and

military) put the president in a position where he could exercise

leadership regularly.

The Two Presidencies Thesis

Presidents have two faces, one concerning domestic policy, the other concerning foreign policy.

The president shares power with Congress on domestic affairs, but

dominates on foreign affairs.

When foreign affairs are foremost in the public’s mind, the president

necessarily dominates.

Researchers have assigned several stages to the periods where the

power of the President has grown.

Stages of Presidential Power

Chief ClerkModern PresidentImperial President

Post Modern President

The Chief Clerk1789 – 1933

The Executive Branch, institutionally, took a back seat to Congress and simply saw that the

laws were implemented. The scope and authority of the office was

small.

During this era, presidents tended to be undistinguished, with the

occasional activist who was able to use personality or the nature of

the times to expand power. These expansions tended to be

temporary.

Communications technology made it more likely that the electorate identifies with their member of

Congress, not the president.

The institutional nature of the office kept its powers limited, unless outside factors made it

more likely that strong leadership was necessary.

Most Presidents in this era were weak and ineffective, deliberately.

Some were not, for various reasons.

Washington – The FoundingJefferson – Manifest DestinyJackson – Democratization

Lincoln – Civil WarCleveland – Regulation

T Roosevelt – ProgressivismWilson – Foreign Affairs

The institutional structure of the executive, and technological

improvements set the stage for a major increase in Presidential

power.

Mechanisms for Exerting Presidential Power

A Bureaucratic ApparatusAn Advising System

New Media Technology

The Modern President1933 – current

The President is in a position to dominate government by his

ability to use the news media to set government’s agenda and to

influence the bureaucracy.

The First Modern President

Franklin Roosevelt

- On Roosevelt and His Legacy.

Roosevelt enters the presidency in a time of economic crisis.

Crisis creates the opportunity for an expansion of power.

FDR’s First Inaugural Address:

“I shall ask the Congress for the one remaining instrument to meet the crisis--broad Executive power

to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign

foe.”

The New Deal can be considered as being a, relatively, permanent

increase in the size and functions of the national government.

A sample of the agencies created during the New Deal:

Securities and Exchange CommissionRural Electrification Administration

Tennessee Valley AuthorityThe Social Security Administration

Public Works AdministrationNational Recovery Administration

National Labor Relations BoardFederal Deposit Insurance Corporation

United States Housing Authority

Neat Trivia:

The Texas director for the National Youth Administration

was Lyndon Johnson.

Johnson would learn from Roosevelt. The Great Society was,

in essence, a second New Deal.

A sample of the laws passed during the Great Society:

Civil Rights Act of 1964 Economic Opportunity Act of 1964

Voting Rights Act of 1965 Food Stamps

Head Start Higher Education Act of 1965

Elementary and Secondary Education Act Social Security Act of 1965 (Medicare and Medicaid)

National Endowment for the Arts National Endowment for the Humanities

Constitutional questions remained regarding New Deal programs. Some argued that there was no

justification for the new agencies and some were found

unconstitutional.

An Example

The National Industrial Recovery Act was found unconstitutional. The Supreme

Court ruled that Congress had inappropriately delegated its regulatory power without both a clear statement of policy and the establishment of a specific set of standards by which the President

was empowered to act.

Later court cases would broaden the meaning of certain parts of the Constitution to not only provide a basis for New Deal legislation, but

future legislation as well.

Other factors leading to increased presidential power:

Media TechnologyIncreased importance of Foreign

Affairs

Fireside Chats

Periodic, personalized radio addresses made by Roosevelt. For

the first time the president was able to connect directly to the

electorate and push his agenda.

Transcripts of the Chats.

Audio Files of the Chats.

One additional factor leading to increased power. The creation of

the Executive Office of the Presidency (EOP) and other

advisory positions.

The Office was suggested by the Brownlow Committee, and

established in the Reorganization Act of 1939.

Increased foreign involvement allowed the president to exert

additional power in a policy area where he has constitutional

autonomy.

Commander in ChiefWorld War II

As the position of the president increased in strength, questions

were raised whether the position was growing too strong, and too

autonomous.

Especially with regard to military power.

The Department of Defense authorized a peacetime army and put the President in a position to use the military at his discretion

without needing to consult Congress to build a military.

AUMF

Authorization for the Use of Military Force

The United States has not fought in a declared war since the creation

of the Department of Defense.

The Imperial President

A term used to describe the presidencies of Lyndon Johnson

and Richard Nixon when presidential power was suspected

of becoming too powerful and potentially abusive.

VietnamWatergate

The War Powers Resolution

An effort to place limits on the ability of the president to use

military powers at his discretion.

After Nixon’s Presidency there were efforts to curtail presidential

power.

These came to fruition, for a brief period of time, after the end of the

Cold War.

The Post-Modern President1989 – 9/11/01

This theory argues that the power of the president is diminishing because the office

is no longer able to control the agenda since the media environment is so

decentralized and because foreign affairs were no longer centersatge.

Devolution and Privatization were dominant buzzwords during this

time.

Devolution refers to attempts to send responsibility for federal

policies back to the states.

Privatization refers to efforts to allow the private sector to provide

goods and services previously provided by government.

Presidents elected during this period has more experience at the state level than the national level

CarterReaganClinton

W. Bush

Since 9/11, and since the financial collapse and the recent oil spill, is presidential power on a rebound?

Some history

Tracing the growth of executive departments

How in fact has the executive branch grown over time and factors explain that growth?

First, a few words on the Bureaucracy.

Executive DepartmentsIndependent Regulatory Agencies

Government Corporations

Executive Departments

The primary unit of the federal executive branch. Most other

agencies and bureaus are located within one of the 15 executive

departments.

These departments implement the laws passed by Congress. Within

each department is a large number of agencies and bureaus with smaller, more defined tasks.

There are also a variety of Independent Agencies which exist outside the executive departments

and either regulate specific activities, or implement laws not

carried out by executive departments.

The scope of the original executive branch under Washington was

relatively limited.

Three Executive Departments were established initially.

Department of State – 1789

Is responsible for international relations and oversees the

diplomatic agencies and foreign service.

Department of the Treasury – 1789

Manages government revenue and provides the basis for the nation’s

financial system. Is also responsible for currency and other

delegated commercial powers.

Department of War – 1789

Oversaw the management of armed conflict until the

establishment of the Department of Defense.

More controversially, following the advice of Alexander Hamilton, a

national bank was chartered.

Hamilton called for an expansive reading of the constitution in order

to justify a national bank, infrastructure development and

the establishment of a solid line of credit in order to purchase bonds

at low rates.

The national bank was based on the necessary and proper clause.

Andrew Jackson would later challenge that position.

Hamilton made three key proposals:

First Report on Public CreditSecond Report on Public Credit

Report on Manufactures

The position of Attorney General was also established in 1789.

The Attorney General served as the top lawyer for the nation.

Currently there are 15 Executive Departments.

13 were developed after State and Treasury. The Department of War, along with the Navy,

would be rolled into the Department of Defense.

Executive Departments are headed by a Secretary nominated by the President and confirmed by the

Senate to manage the department in accordance with the President’s

objectives

Second in command: Deputy Secretary who serves as Chief

Operating Officer

The secretary and deputy secretary are the first tier of the bureaucracy

Second Tier: Undersecretaries

Have management responsibilities for one or more of the agencies

within the department.

Third Tier: Agencies and Bureaus

There are sometimes called line agencies that deal directly with the public. They are

created by Congress and granted the power to implement the law. These are

the individual you and I are most likely to interact with.

Sample of Agencies within Homeland Security:

United States Citizenship and Immigration Services U.S. Customs and Border Protection

U.S. Immigration and Customs Enforcement Transportation Security Administration

United States Coast Guard Federal Emergency Management Agency

United States Secret Service

Examples of Bureaus

Federal Bureau of InvestigationThe Forest Service

Agricultural Research Service

The heads of the executive departments are called the

president’s cabinet, but they are generally not the closest advisors

to the president.

The Cabinet

The United States Cabinet (usually referred to as the President's Cabinet

or simplified as the Cabinet) is composed of the most senior

appointed officers of the executive branch of the federal government of

the United States.

Presidents are generally closest to members of the White House Staff.

Conflict between executive departments and the White House

Staff are common.

We will run through the executive departments created after

Washington’ first three

This provides a great way to understand the process by which

the national government has grown.

Post Office 1792 – 1971

Now organized as a government corporation, similar to AMTRAK.

An office of postmaster general existed throughout the colonial era. For many years Benjamin

Franklin held the office. It provided him an opportunity to help

distribute Good Richard’s Almanac.

Department of the Interior – 1849

Manages federal land and Indian Affairs

Department of Justice – 1870

Enforces the law and administers justice.

Department of Agriculture – 1889

Responsible for policies on farming and food. It also promotes trade in agriculture and meets the needs of farmers and ranchers. Responds to the needs of a particular clientele.

Department of Commerce – 1903

Its mission is to "promote job creation and improved living

standards for all Americans by creating an infrastructure that promotes economic growth,

technological competitiveness, and sustainable development."

Department of Labor – 1913

Administers a variety of Federal labor laws including those that guarantee

workers’ rights to safe working conditions; a minimum hourly wage

and overtime pay; freedom from employment discrimination and

unemployment insurance.

Department of Defense – 1947

Coordinates and supervises all agencies and functions of the

government relating directly to national security and the United

States armed forces.

Department of Health and Human Services – 1953

Protects the health of all Americans and provides essential human services. Runs Medicare

and Medicaid.

Department of Housing and Urban Development – 1965

Develops and executes policy on housing and cities.

Department of Transportation – 1966

Mission: To “serve the United States by ensuring a fast, safe, efficient, accessible

and convenient transportation system that meets our vital national interests and

enhances the quality of life of the American people, today and into the

future."

Department of Energy – 1977

Coordinates policies regarding energy, energy research, and

safety in handling nuclear material.

Department of Education – 1979

Formulates federal funding programs involving education and

to enforces federal educational laws regarding privacy and civil

rights.

Department of Veterans Affairs – 1989

Administers hundreds of Veterans Affairs medical facilities, clinics,

and benefits offices and veterans’ benefits programs.

Department of Homeland Security – 2002

Is responsible for protecting the territory of the U.S. from terrorist attacks and responding to natural

disasters.

Again, the heads of these departments are called the

president’s Cabinet and while it is assumed that they are the

president’s top advisors, this is not necessarily true.

The fact that they must be confirmed by the Senate means that the President can’t select

whoever he or she pleases.

Cabinet secretaries also are under considerable pressure from below

to allow lower level bureaus to implement laws as they see fit.

“Marrying the Natives”

Independent Agencies

Independent Agencies are unique organizations headed by a single administrator, usually with the

help of a commission.

They either implement something outside the jurisdiction of an existing agency or regulate a

segment of the economy – these are called independent regulatory

agencies.

Often these agencies were developed in response to a crisis or

event that led Congress to pass a law dealing with the crisis, and which created an institution to

implement the solution.

These are sometimes called the Fourth Branch of government

given their independent strength.

Examples:

Office of Personnel Management

Originally named the Civil Service Commission in 1883, created to

manage the civil service in the U.S.

The Interstate Commerce Commission.

The first regulatory agency, established in 1887 to regulate

railroads.

The Federal Reserve System – 1913

Oversees monetary policy in the United States, serves as the U.S.

Central Bank.

Federal Communications Commission – 1934

Regulates all non-federal government use of the radio spectrum, and all interstate

telecommunications as well as all international communications that

originate or terminate in the United States.

Securities and Exchange Commission – 1934

Protects investors who buy stocks and bonds.

Central Intelligence Agency – 1947

Collects information about foreign governments, corporations, and individuals, and to advise public

policymakers. The agency conducts covert operations and paramilitary

actions.

National Aeronautic and Space Administration – 1958

Runs the American space program.

Environmental Protection Agency – 1970

Controls and abates pollution in the air and water and deals with problems related to solid waste, pesticides, radiation, and toxic

substances.

Federal Election Commission – 1975

Regulates campaign finance legislation in the United States.

There are many more, click here for a list.

Problems:

Regulatory CaptureBureaucratic Drift

Agencies can sometimes be controlled by the interests they are

to regulate. Top contributors to presidential candidates are

sometimes allowed to determine who does and does not serve on a

regulatory board.

Is successful, the interest can pack a regulatory board with supporters

and the industry can effectively regulate itself.

The Executive Office of the Presidency

Created in the late 1930’s in order to provide information and advice to the president and other upper

level executive officials about specific topics.

The Brownlow Commission

Current EOPCouncil of Economic Advisers

Council on Environmental Quality Domestic Policy Council

National Economic Council National Security Council Office of Administration

Office of Management and Budget Office of National Drug Control Policy

Office of Science and Technology Policy Office of the United States Trade Representative

President's Intelligence Advisory Board and Intelligence Oversight Board

White House Military Office

Within each office is a group of policy experts and analysts that

compile information about relevant subject matter, make

policy recommendations, and send them on to upper level

administrators, including the president, for action.

The EOP has allowed for additional use of presidential power since the

president has additional information to use to develop or

justify initiatives.

So has the White House Staff

The White House Staff

As the demands of the office have increased, the number of

individuals working directly for the president in the White House Staff

has grown as well.

Day to day advisors to the President.

Hired and fired directly by the president.

Job #1: Make the president look good.

Determinants of Strong Advisers

LoyaltyControl

Top position

Chief of Staff

Responsible for managing the President’s day and determining

who get to see the president.

Other positions:

Communications OfficeLegislative Relations

TravelSocial Secretary

Top domestic and foreign policy advisors tend to have been members of the President’s

campaign staff.

The White House Staff is where one is likely to find the people most loyal top the President,

rather than to the office, or any of the departments.

Even if the presidency has declined in importance in recent years, which is a debatable point, the

office is much stronger than it was initially

The Presidency

The increased size and scope of the executive branch has led to a

much stronger Presidency.