by John Yoo
PRESIDENTS DURING the Cold War period complemented their activist foreign policy with consistent efforts to establish tighter control over the administrative state. This was a natural response to fundamental changes in American government. The Court's removal of the limits on federal power allowed economic regulation on a truly national scale. In the 20 years after the New Deal, Congress -- often at the behest of Presidents -- enacted laws setting national standards for working conditions, labor unions, and wages and hours, among other subjects. Another burst of federal regulation followed in the 1960s and 1970s; federal rules spread to cover crime, voting, housing, race, consumer rights, and the environment. The New Deal had taught Americans to expect their national government to do more to cure everyday problems, and Presidents and Congresses together responded with a mixture of direct rules, criminal laws, tax benefits, and spending. Even Republican Presidents like Eisenhower, Nixon, and Reagan never seriously tried to undo the New Deal's paradigm shift in the role of the federal government.
Congress delegated sweeping powers over these new objects of federal attention to the agencies. It is fair to say that the administrative state, rather than Congress, makes the majority of the federal rules that affect individual citizens today. Delegation gives Presidents more power, but at a price. It allows Congress to escape responsibility for difficult public policy choices, usually ones that will spark high levels of opposition no matter what option is chosen. Congress can avoid decisions that are risky or unpredictable, or that require scientific or technical judgment. Better to have the executive branch, for example, balance safety, air quality, industrial growth, and fuel costs in setting minimum mileage requirements for automobiles. Individual legislators can criticize almost any agency decision without having to face the difficult trade-offs themselves. They can focus instead on funneling benefits to discrete groups that will support them with votes or campaign contributions.51
FDR set the example of the Presidency, not Congress, as the energetic force responsible for solving the nation's domestic problems. Presidents are now held accountable for the nation's economic performance, over which they have little real power (in contrast to the Chairman of the Federal Reserve Board). They are expected to submit annual budgets to Congress, even though it is the legislature that commands the power of the purse. They launch comprehensive reform proposals to deal with every imaginable national problem, even though the Constitution gives Congress almost all of the national government's powers over domestic affairs.
Presidents today are expected to have solutions at hand for problems big and small: natural disasters (Hurricane Katrina relief), local crime (midnight basketball for teens), and poor borrowing decisions (lowering mortgage rates). As Richard Neustadt wrote five decades ago, "everybody now expects the man inside the White House to do something about everything." Presidential proposals for legislation, managed by White House lobbyists and backed up by the veto, are now a central feature of national politics. As a constitutional matter, the President can only block (assuming he has one-third of the Senate or House with him) Congress's initiatives, not force it to pass his own. This gap between high public expectations and weak constitutional powers is one of the sharpest paradoxes of the American Presidency today.52
While these developments had their historical antecedents, they emerged during the New Deal on a massive scale. Like FDR, the Cold War Presidents responded by seeking to impose order and rationality over the executive branch. Originally, delegation was driven by the idea that the executive branch would bring greater technical expertise. Rules would come from neutral administrators, rather than the political process and its susceptibility for temporary passions or interest-group biases.
During the later New Deal and postwar period, however, it became evident that politics were inseparable from administration, especially as the delegations became broader. The Clean Air Act, for example, orders the Environmental Protection Agency to set air-quality standards the attainment of which "are requisite to protect the public health." Deciding how much air pollutant to allow goes beyond technical expertise and requires trade-offs among competing values, such as economic growth, improved health, and feasibility of reductions. As an original matter, it is doubtful that the Framers believed the legislature could grant such sweeping power absent the necessities of wartime emergency. But after losing the New Deal confrontations, the courts no longer policed the amount of delegation from Congress to the executive branch.53
All of the Cold War Presidents struggled to increase their control over the vast swaths of bureaucracy inside the Beltway -- both to inject more expertise into decisions and to make themselves the voice of electoral accountability within the administrative state. They wanted to make sure that the thousands of decisions made by the agencies every day were moving in the same direction. If the President had just been elected in the midst of a recession, for example, his White House could press each major agency decision to strike its regulatory balance toward pro-growth policies and private-market ordering. The primary method became direct presidential control over agencies' decisions through a larger and more specialized White House staff.
The Bureau of the Budget, located inside the Executive Office of the President, became "OMB," the Office of Management and Budget, and its authority expanded beyond supervision of the agency budget process to include the review of proposed legislation and congressional testimony by executive branch officials. Under the Nixon, Ford, Carter, and Reagan administrations, OMB imposed cost-benefit analysis on executive rule-making without any clear statutory mandate. Under Director George Shultz, OMB began to review environmental regulations to determine whether their economic benefits outweighed their costs. Presidents Ford and Carter gradually expanded the scope of cost-benefit review until President Reagan, in Executive Order 12291, broadened it to all executive branch regulations and allowed OMB to stall any regulation for failing cost-benefit review.
Cost-benefit analysis put in sharp relief the President's powers of management and administration. Critics of Executive Order 12291 correctly noted that many statutes did not impose a standard that a regulation's economic benefits exceed its costs. Congress had codified the basic procedures for agency rule-making in the 1946 Administrative Procedure Act, which left White House review unmentioned. Most statutes place the duty to issue the regulation with the head of an agency, rather than the President. Nonetheless, President Reagan claimed the authority to require cost-benefit standards and to oversee all regulations issued by any executive branch agency as part of his constitutional authority to execute the laws. He even requested that the independent agencies voluntarily comply with E.O. 12291, but none did so.54 Congress attempted to defund the OMB office in charge of the review, but failed, and no court has issued an order attempting to shut it down. Presidents seem to have prevailed, with cost-benefit review continuing as a central function of the White House today.55
The National Security Council, established in the National Security Act of 1947, sets the basic model for White House coordination and control. It brings together the State and Defense Departments and the CIA and is staffed by dozens of officials on loan from the agencies, who help run a policy-making process that attempts to set policies so as to produce a uniform approach throughout the administration. A Domestic Policy Council attempts to perform the same function for the operations of the domestic agencies, and a National Economic Council, headed by the President's economic advisor, seeks to coordinate government policy on domestic and international economic issues. The most recent addition was the Homeland Security Council, which coordinates policies to protect against terrorist attacks and other emergencies.56
All of these entities transmit as well as receive. White House aides handle the daily business between the President and the cabinet agencies and coordinate the overall operations of the executive branch. While White House staff have no legal authority to command cabinet members or agency heads, they have implicit presidential backing behind them. Loom
ing behind command is the constitutional authority of removal. Executive orders as well as signing statements became the tools for the communication of instructions to the administrative state. With executive orders, Presidents announced and implemented their policy preferences using delegated or constitutional powers. Signing statements instructed the agencies how Presidents wanted the laws to be read when it came time for implementation. It should come as no surprise that the use of both has leaped since FDR. The dramatic expansion of the scope of federal power and its sweeping delegation to the President has broadened the subjects that fall within the presidential ambit.57
A prominent example of presidential leadership in domestic policy, using the constitutional powers of the office, can be found in the area of race relations. President Truman invoked his authority as Commander-in-Chief to desegregate the military and as Chief Executive prohibited racial discrimination in federal employment. Presidents Eisenhower, Kennedy, and Johnson continued those orders and -- the latter two devising the term "affirmative action" -- added a ban on racial discrimination in government contracts. There was no statutory authority for these policies. Southerners in the Senate had prevented Congress from enacting any civil rights laws from the end of Reconstruction to 1957, and it was only after Kennedy's assassination that the political momentum existed for passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act. Before then, the national government eliminated racial discrimination in its own operations through presidential, not congressional, action.
Perhaps the most dramatic example was the reaction to Brown v. Board of Education. Brown declared that segregation in the public schools violated the Constitution's guarantee of equal protection of the laws to all citizens regardless of race. Eisenhower generally attempted to avoid the race question, and he privately said that he wished the Court had upheld Plessy v. Ferguson.58 Throughout his administration, he sought to escape political responsibility by deferring to the courts, and he never publicly said whether he agreed with the merits of Brown or whether he thought segregation was morally wrong. But once the courts spoke in Brown, Eisenhower listened.
Two days after the Court announced its decision, Eisenhower declared at a press conference that "the Supreme Court has spoken, and I am sworn to uphold the constitutional processes in this country; and I will obey."59He did not have to live up to his promise for three years. In September 1957, Arkansas Governor Orval Faubus defied a federal court order and called out the state national guard to block a dozen black students from entering Central High School in Little Rock. Eisenhower ordered the 101st Airborne Division and federalized units of the national guard to escort the black students to school. Federal troops had not entered the South to enforce the law since Reconstruction, and Eisenhower's orders, contrary to his own views on segregation, signaled to the South that armed resistance to Brown would be futile. He had acted under his constitutional authority to see that the laws were faithfully executed, and he defined "the laws" to include Brown and the decisions of the Supreme Court.60
When it came to delegated powers, however, Congress attempted to place numerous obstacles in the way of presidential action. While Congress wants to shift political responsibility to the President by delegation, it still seeks to retain as much influence over the agency as possible. In Congress's ideal world, the President would take all of the downside for politically unpopular decisions, while Congress could continue to dictate to the agencies. During the Cold War, Congress tried to achieve something close to this arrangement in several ways. One was to expand the practice of insulating agencies from presidential control.
Congress cannot prevent the President from appointing the heads of the agencies, and all of the Cold War Presidents generally chose nominees who agreed with administration policies, but Congress could condition the President's ability to fire them. Without the threat of removal, Presidents would have little formal authority to compel independent agencies to obey their orders. Agency leaders would become more susceptible to control by Congress, which would continue to control their funding and legislative mandates, and potentially embarrass them (or praise them) in oversight hearings. Several Presidents, such as Truman, Kennedy, and Reagan, sought to place the independent agencies under their control, but Congress always refused to make the necessary legal changes.61
Another method of congressional influence was the "legislative veto.' In delegating authority to the executive branch, Congress often would include a provision that allowed one or both Houses to overrule the agency's decision. In an extreme form, a legislative veto would give the power to a single committee of the House or Senate to block executive branch action. Under the Eisenhower administration, for example, Congress passed a law allowing either the House or Senate appropriations committees to block any Defense Department decision to privatize work on a military base. Even though Eisenhower ordered the Defense Department to ignore any committee veto as an intrusion on his constitutional authority to execute the law, subordinate officials would not issue the checks without the approval of the Comptroller General, who decided to obey the committees.62 Thousands of legislative veto provisions entered the law and became almost standard boilerplate in delegation statutes. They make perfect sense from the congressional perspective, as they allow Congress to delegate authority, but with strings attached.
A third method, which came to prominence in the wake of Watergate, was to create independent officials who could investigate the executive branch. The centerpiece of this effort was the 1978 Ethics in Government Act, which established the independent counsel in response to perceived conflicts of interests revealed by Watergate. Special Justice Department prosecutors had the task of investigating President Nixon and his closest aides for the break-in of Democratic Party headquarters at the Watergate Building on June 17, 1972. "Watergate" would come to refer to a host of scandals that included the electronic surveillance of Nixon's political opponents, "dirty tricks" to sow confusion in the Democratic primaries, IRS audits to harass critics, misuse of campaign finances, and the cover-up. Congress and the Justice Department conducted investigations that followed the trail from the Watergate burglars to Nixon's reelection campaign to White House counsel John Dean to Nixon's closest aides, Bob Haldeman and John Ehrlichman. Watergate reached the level of a major constitutional crisis when testimony revealed that Nixon had taped his conversations in the Oval Office, which might contain proof that Nixon had ordered the break-in or interfered with the investigation. Nixon ordered the Attorney General, Elliot Richardson, to fire special prosecutor Archibald Cox, who had subpoenaed the tapes. Richardson and the deputy attorney general resigned instead, and it fell to Solicitor General Robert Bork to fire Cox.
Known as the "Saturday Night Massacre," the October 20, 1973, firing created a conflict between the President's authority to supervise the enforcement of the laws and his status as a potential subject of investigation. Although Jimmy Carter campaigned on the idea of making the Justice Department an independent agency, and several members of Congress introduced legislation, the proposals went nowhere, and they would almost certainly have presented an unconstitutional invasion of a core power of the President. Treating prosecution as a neutral act of administration ignores the fundamental policy choices made in law enforcement, such as where to place resources, what crimes to prioritize, and where to ameliorate the harshness of the laws. The only way that the people can affect these judgments is through their election of the President; making the Justice Department independent would have left these critical choices in the hands of unaccountable bureaucrats. It would have been akin to making the Joint Chiefs of Staff and the military independent of the Commander-in-Chief.
Congress and President Carter decided to create an independent prosecutor instead. Under the Ethics in Government Act of 1978, the Attorney General must conduct a preliminary investigation upon receiving information "sufficient to constitute grounds to investigate" whether high-level executive branch officials, including the President, Vi
ce President, top White House aides, and cabinet officers, have violated federal law. If the Attorney General concludes that there are "reasonable grounds" for further investigation, he must ask a special division of the federal appeals court in Washington for the appointment of an independent prosecutor. The court selects the independent counsel, who exercises the "full power and independent authority" of the Justice Department, and defines his jurisdiction. The Attorney General can only remove the prosecutor for "good cause," which can be challenged in court. The Act produced a plethora of investigations, ranging from the important (Iran-contra under Reagan, Whitewater under Clinton), to the insignificant (cabinet officials accepting free event tickets). By 1999, when the law lapsed, more than 25 independent counsels had conducted investigations at a cost of about $175 million. Operating without any superiors, independent counsels used every available resource to leave no stone unturned.63
Congress also inserted a mini-independent counsel into each agency. The 1978 Inspector General Act centralized investigations and auditing within each agency into an Inspector General. The statute required IGs to be confirmed by the Senate and to report regularly to Congress and prohibited the President from removing them unless he explained his reasons to the legislature.64 While not an attempt, like the independent prosecutors, to make the inspectors totally free from presidential control, the Act tried to weaken executive control by creating offices within each agency that would feel more loyalty toward Congress.
Watergate gave birth to yet another method of congressional control, the introduction of "framework statutes" that attempted to restrict the exercise of delegated authority or the operations of the Presidency itself. These laws only permitted the President to exercise certain powers after making a series of findings, accompanied by requirements of consultation and reporting to Congress. The War Powers Resolution was but one example. After the Church Committee hearings into the CIA's activities, Congress enacted the 1980 Intelligence Oversight Act to regulate the President's control of covert operations. It required the CIA to keep the House and Senate Intelligence Committees fully informed of all intelligence activities, including covert action as well as intelligence gathering and counter-intelligence. No funding would be available for covert actions unless the President made a finding that an operation was necessary to advance the national security.