AGW6

Chapter Nine Executive Agencies Barry D. Friedman

Learning Objectives After reading this chapter students will be able to:

1. Explain why the assortment of executive institutions is necessary to administer the laws that Congress enacts.

2. Describe the various structural forms of executive institutions. 3. nderstand the various ways in which executive of cials obtain

their jobs. 4. Evaluate the relationships that the executive institutions conduct

with the president, Congress, the judiciary, and the institutions’ respective clientele groups.

Abstract Article II, Section 3, of the Constitution empowers the president to

“take Care that the Laws be faithfully executed.” Executing the thousands of laws that Congress has enacted requires the work of more than one of cial, so an enormous administrative apparatus commonly referred to as the “bureaucracy”) is in place to execute the laws under the president’s supervision. During the almost 225 years since the Constitution went into effect, the administrative establishment has grown piecemeal, with a wide variety of institutional forms (such as departments, multi-member commissions, government corporations, and other types) that have been installed for sound or arbitrary reasons. he of cials who are appointed to serve in the Executive ranch obtain their obs in a variety of ways, sometimes based on rewarding loyalty to the president and sometimes based on installing the most quali ed individual. hile the president struggles to cause his subordinates to take direction from him, he discovers to his chagrin that bureaucrats—to serve their own interests or to hold on to their obs—routinely act, instead, to indulge members of Congress, clientele groups, and others who are ust as adamant as the president about their own interests that, they are convinced, ought to be served by the administration.

Introduction In Article II, the U. S. Constitution presents a pithy description of what

the president’s job will be. Perhaps the principal duty assigned to the

president is the one that is inherent in the job of being the chief executive. The executive power is the power to execute the laws (or, synonymously, to administer the laws). Thus, Article II, Section 3, states, “. . . [H]e shall take Care that the Laws be faithfully executed. . .” And while the Constitution is laconic in its discussion of the presidency, it is virtually silent about the organizational structure that will help the president execute (administer) the laws. Article II refers off handedly to “the principal of cer in each of the executive departments” and “the heads of departments.” Otherwise, the Constitution left the rst Congress to gure out how to structure the Executive Branch and the rst president to gure out how to manage it.

In 1 , the year in which the Constitution went into effect, the rst Congress enacted laws establishing the Department of Foreign Affairs (renamed, within months, as the Department of State), the Department of the Treasury, and the Department of War (known since 1949 as the Department of Defense). Meanwhile, President George Washington and his principal advisor, Alexander Hamilton, designed the format by which the president would interact with his top-ranking subordinates. He began to conference regularly with ecretar of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, Secretary of War Henry Knox, and Attorne enera Edmund Randolph. At some point, James Madison referred to this group as the president’s cabinet, and the term had come into accepted use by 1793.

The Structure of the Administrative Establishment In order to explain the structure of the national government’s

administrative establishment, this section of the chapter classi es the components of the administrative establishment into four components. This classi cation system is a simpli cation of the countless forms of administrative entities, but it serves as a helpful introduction to the structure of the Executive Branch.

Departments and Bureaus As the introduction observed, Article II of the Constitution refers to

“departments,” and the rst Congress established three of them. The department is, therefore, the oldest form of administrative apparatus in the Executive Branch. A department houses some number of agencies. An agency may house some number of bureaus. Generally speaking, a

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bureau is the smallest unit of administration. Accordingly, the Executive Branch is popularly referred to as the bureaucrac . The traditional term for the head of a department is “secretary” (i.e, an assistant in whom an executive can con de), for the head of an agency is “director,” and for the head of a bureau is “chief.” But this general hierarchy of department— agency—bureau is very much a generality; not a single department of the national government adheres consistently to this nomenclature. Over time, departmental components have arisen haphazardly with titles such as administration, center, institute, of ce, and service.

Today, the national government has 15 departments. The departments are listed below in order of their department heads’ cabinet seniority. Cabinet seniority determines the order of presidential succession, after the vice president, speaker of the House, and president pro-tempore of the Senate.

Department of State (1789) Department of the Treasury (1789) Department of Defense (1789) Department of Justice (1870; expansion from attorney general’s of ce, 1789) Department of the Interior (1849) Department of Agriculture (1862) Department of Commerce (1903) Department of Labor (1913) Department of Health and Human Services (1953) Department of Housing and Urban Development (1965) Department of Transportation (1967) Department of Energy (1977) Department of Education (1979) Department of eterans Affairs (1989) Department of Homeland Security (2003)

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As an example of how a department is structured, here is a guide to the components of the Department of Commerce.

Department of Commerce | Bureau of Industry and Security | Economic Development Administration | Economics and Statistics Administration |--| Bureau of Economic Analysis |--| Census Bureau | International Trade Administration | Minority Business Development Agency | National Oceanic and Atmospheric Administration |--| National Environmental Satellite, Data, and Information Service |--| National Marine Fisheries Service |--| National Ocean Service |--| National Weather Service |--| Of ce of Oceanic and Atmospheric Research |--| Of ce of Program Planning and Integration | National Telecommunications and Information Administration |--| Of ce of Spectrum Management |--| Of ce of International Affairs |--| Of ce of Policy Analysis and Development |--| Of ce of Telecommunications and Information Applications |--| Institute for Telecommunications Sciences | National Institute of Standards and Technology |--| Building and Fire Research Laboratory |--| Center for Nanoscale Science and Technology |--| Chemical Science and Technology Laboratory |--| Electronics and Electrical Engineering Laboratory |--| Information Technology Laboratory |--| Manufacturing Engineering Laboratory |--| Materials Science and Engineering Laboratory |--| Center for Neutron Research |--| Physics Laboratory |--| Technology Services | National Technical Information Service | atent and Trademark Of ce |--| Patent Of ce |--| Trademark Of ce

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This chart shows how the department houses a number of agencies (whose names are italicized), and some of the agencies house a number of bureaus. However, the titles of these entities are rarely referred to as “agency” or “bureau,” in so far as Congress tends to disregard such conventions when naming new executive institutions.

The departments that the rst Congress established arose for the purpose of accomplishing inevitable functions of a national government: the Department of State, diplomacy; the Department of the Treasury, nance; and the Department of War, military operations. The Department of Justice, an elaboration of the Of ce of Attorney General, was established in 1870 to represent the national government in legal matters. The theme of most departments established in and since 1862 has been very different. Those departments, such as the Department of Agriculture, were established not to carry out a function of the government but, rather, to provide services to certain people or businesses, known as their clientele. The secretaries of these clientele oriented departments are known to be committed to the well-being of their respective clientele groups, rather than to the health and prosperity of the nation as a whole. The creation of the Department of Homeland Security (2003) brought about a department that, like the earliest departments, is responsible for a government function—in this case, preparing for and responding to natural disasters and turmoil caused by humans (especially terrorists).

Today, the president rarely convenes a meeting of the cabinet. He is well aware that most of the department heads are committed to the well-being of their respective clientele groups, and so their advice would tend to be directed toward those interests. When the president does bring the cabinet together, the purpose is likely to be the creation of a “photo opportunity” for the sake of attracting publicity. However, as Thomas E. Cronin (1975) observed, the president will usually con ne his solicitation of advice from department heads to the secretaries of defense, homeland security, state, and treasury, and the attorney general—i.e., heads of the functional departments because they are most likely to share his more generalized concern about the general condition of the nation. Cronin refers to those department heads as the president’s inner cabinet, and to the heads of the clientele-oriented departments as the president’s outer cabinet, to indicate the president’s perception of the former as being a source of more useful advice to him.

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Executive Of ce of the resident The U. S. Constitution is designed to put the three branches of the

government in competition with each other for power. From 1789 to the early twentieth century, Congress’s clear motivation was to limit the power of the president by limiting the personnel resources available to him. President Washington and his successors had so little help assigned to them that they sometimes hired assistants and paid them out of their own pockets. One of the ways in which Congress limited the president’s scope of authority was to control the process of compiling the national government’s annual budget. Congress clearly intended to freeze the president out of this exceptionally important government function.

In 1921, Congress threw in the towel, admitting that the time-consuming budgeting process had grown to the point that the legislature could no longer handle it. ery reluctantly, Congress enacted the Budget and Accounting Act of 1921. The law’s creation of the president’s Bureau of the Budget signi cantly expanded the size of the White House workforce. Otherwise, the president’s personal staff remained modest.

President Franklin D. Roosevelt’s New Deal programs, designed to respond to the challenges of the Great Depression, were predicated to some degree on the need for more presidential leadership and, therefore, more staff. In 1937, he appointed a Committee on Administrative Management (popularly known as the rownlow ommittee) to recommend improvements in the organization of the Executive Branch. The most famous sentence of the committee’s report said, simply, “The president needs help.”

Congress was mostly antagonized by the report’s recommendations, in so far as it is loath to give the president more resources that he can use to expand his base of power. But, again reluctantly, it gave Roosevelt authority to augment his White House staff in 1939. In accordance with this temporary authority, Roosevelt created the Executive Of ce of the resident (EOP). The Bureau of the Budget (which is now known as the Of ce of anagement and udget) became the rst component of the EOP.

One might wonder why the president, who has the assistance of the workforce of the 15 departments at the ready, would need a separate establishment, the EOP, to help him. The answer is that each of the 15 departments has a speci c mission to carry out programs in its respective area of function or constituency. The EOP, on the other hand, has, as its

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purpose, the job of helping the president in his general management of the entire Executive Branch. The Of ce of Management and Budget (OMB), for example, helps the president to ensure that Executive-Branch agencies are properly funded and that the agencies spend the money responsibly and lawfully.

Today, the EOP houses the following institutions:

Council of Economic Advisers Council on Environmental uality National Security Council and Homeland Security Council Of ce of Administration Of ce of Management and Budget Of ce of National Drug Control Policy Of ce of Science and Technology Policy Of ce of the U. S. Trade Representative Of ce of the ice President Executive Residence White House Of ce

Regulatory Institutions Whenever a government makes prescriptions about what we may

or may not do (such as outlawing murder), we can literally say that the government is regulating our behavior. But, in modern times, when people say something about government regulation, they are probably referring to rules made by government of cials that direct business owners and managers about how they should run their companies. For example, the Environmental Protection Agency directs owners of industrial facilities to limit the quantity of pollutants that they emit into the air and waterways.

While all governments impose regulation in one way or another, Congress broke new ground in 1887 when it enacted the Interstate Commerce Act. On this occasion, the members of Congress believed that it had become necessary to extensively regulate the behavior of the owners and managers of the nation’s railroad lines. Agriculture interests were complaining about the prices that the railroads were charging to haul agricultural products. But, in the Interstate Commerce Act, Congress did not simply prescribe standards for future railroad-company actions. Instead, Congress established a new multi-member decision-making body,

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which it called the Interstate Commerce Commission (ICC). And it gave the ICC the power to regulate the railroads by delegating legislative power to it. Speci cally, the ICC could study actions of the railroad industry and then promulgate (i.e., issue) rules and regulations having the force of law. Without further action by Congress, therefore, the ICC could make policies backed by the threat of penalties that could include nes and imprisonment.

The ICC and similar regulatory institutions are very worthy of note, if for no other reason than that they extraordinarily possess all three of the ma or powers of government, the separation of powers notwithstanding.

They have the power to make rules and regulations that have the force of law. Therefore, we say that they have uasi legislative (“kind of legislative”) power. They have the power to issue notices and summonses in order to administer their rules and regulations. Therefore, they have executive power. If a regulated party objects to the way in which the regulatory institution has administered the rules, the institution has the power to hold a hearing in order to adjudicate the matter. Therefore, we say that these institutions have uasi judicial (“kind of judicial”) power.

Most (but not all) of the regulatory establishments that Congress created from 1887 until the 1950s had these characteristics:

Each one was created to regulate one industry. For example, the ICC was established to regulate the railroad industry. The Federal Communications Commission was established to regulate the broadcast-communication industry. The focus of the regulation to be developed by these establish- ments was economic regulation—especially prices charged by the industry and how companies would report their nancial status to the government and to investors. Although the ICC was originally established as a component of the Department of the Interior, in 1889 Congress decided to insulate the commission from control by the president by lifting it out of the Department of the Interior and making it

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independent. Thus, it was Congress’s common practice for several decades to create independent regulator commissions (IRCs)—multi-member bodies that would be independent of day-to-day presidential supervision. Since 1935, when the U. S. Supreme Court handed down its decision in the case of Rathbun (“Humphrey’s Executor”) v. United States, 205 U.S. 602 (1935), members of these commissions have been immune from dismissal by the president during the commissioners’ terms of of ce. The court invalidated President Franklin D. Roosevelt’s dismissal of Federal Trade Commission member William E. Humphrey because of the possession by FTC members of quasi- judicial power. The court disliked the idea that a president could in uence a commission member who might be involved in adjudicating a case to nd in a certain way by threatening the member’s job.

Here are examples of the IRCs that have been established to regulate single industries:

Interstate Commerce Commission (railroads, and later trucking), 1887, terminated 1995. Federal Power Commission (electric utilities), 1920, succeeded by the Federal Energy Regulatory Commission in 1977. Federal Communications Commission (radio and television), 1934. Civil Aeronautics Board (airline fares), 1938, terminated 1985. Federal Maritime Commission (ocean-borne transportation), 1961. Nuclear Regulatory Commission (nuclear energy), 1975.

During the 1950s, a body of literature in economics and political science arose that revealed the IRCs’ propensity to eventually do the bidding of the regulated industry rather than to serve the public interest. For this reason, the reputation of the IRCs deteriorated. In addition, the theme of Congress’s and the public’s interest in regulation changed; instead of being principally concerned about prices, Congress and the public showed more concern about human issues such as worker safety and the condition of the environment. Therefore, since 1960, when Congress has established regulatory institutions, it has done so in these ways:

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Instead of creating an independent multi-member commission, Congress will create (a) a regulatory agency that is housed within one of the 15 departments and headed by one administrator who reports to the secretary or (b) an independent executive agenc that is not housed in a department and is headed by one administrator who reports directly to the president. The focus of the regulation to be developed by these agencies is social regulation—i.e., pertaining to the safety of consumers, workers, etc., to the condition of the environment, or some other noneconomic value. Instead of regulating one industry, the social-regulatory agency regulates a function of all industries. For example, the Occupational Health and Safety Administration (OSHA), a component of the Department of Labor, regulates the function of protecting worker safety in all industries. Similarly, the EPA, an independent executive agency whose administrator reports to the president, regulates the function of controlling pollution emissions in all industries.

Here are examples of social regulatory agencies that regulate functions of all industries:

Name What It Regulates T pe Location Date Est.

Federal Trade Commission

Truth in advertising and labeling; anti-

competitive behavior

Independent regulatory

commission 1914

Equal Emplo ment Opportunit Commission

Fairness in employment

Independent regulatory

commission 1965

National ighwa Traf c Safet

Administration Automobile safety

Agency in the Department of Transportation

1970

Environmental rotection Agenc Pollution emissions

Independent executive agency

1970

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Name What It Regulates T pe Location Date Est.

Occupational Safet and ealth

Administration Worker safety

Agency in the Department of

Labor 1971

Consumer roduct Safet Commission

Product safety Independent regulatory

commission 1972

Of ce of Surface Mining

Reclamation and Enforcement

Environmental effects of coal mines

Agency in the Department of the

Interior 1977

In so far as some of these agencies are housed in the departments, this category of Executive-Branch entities overlaps the rst category (departments and bureaus), preventing these categories from being genuinely mutually exclusive.

Public Enterprises (Government Corporations) The Executive Branch contains a number of institutions that are

known as public enterprises and as government corporations. These institutions have a different purpose and a different structure than those described above. The purpose of these institutions is to sell products and services to people and businesses that want to purchase them. In this regard, the intention is that the users of the products and services will pay for the institutions’ operating costs, rather than all of the taxpayers paying for them. Thus, in the operation of these corporations, the government relates to members of the public as a businessman would, rather than as the sovereign customarily does. The structure is somewhat different as well. The red tape to which government departments are subjected tends to be relaxed for the corporations in order to avoid strangling them. For example, while a government department has a scal-year budget whose remaining balance becomes inaccessible at the end of the scal year, a corporation does not forfeit the balance of its operating treasury just because the scal year expires.

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Here are some active public enterprises of the U. S. government:

Tennessee alley Authority (sells electricity in the Tennessee alley area, 1933).

Federal Deposit Insurance Corporation (sells bank-deposit insurance to banks, 1933). U. S. Postal Service (sells postage stamps for mail delivery, 1970). National Railroad Passenger Corporation (popularly known as Amtrak, sells tickets for travel on railroads, 1971).

ow Executive ranch Emplo ees Obtain Their obs While elections in the United States tend to be frequent and complicated,

there are only two of cials of the national government’s Executive Branch whose names on the ballot result in their selection: the president and the vice president. All of the other employees have obtained their jobs through some kind of appointment process, such as these:

Partisan appointment. Of cials whose jobs involve advising the president and helping to make public policy obtain their jobs through partisan appointment. That means that the president or one of his top subordinates appoints such individuals based on arbitrary preference. The reason for the arbitrary preference can be any criterion that the president values. In the case of President Washington and his several successors, the major quali cation for appointment tended to be membership in the landed gentry. Upon the 1828 election of Andrew Jackson, loyalty to Jackson and the Democratic Party became the major criterion. When party loyalty is the criterion, we refer to appointments as being patronage or spoils appointments. Today, the president’s appointments to cabinet-level positions tend to be based on a blend of apparent loyalty, experience, and ability. The president is loath to appoint an unquali ed individual to head a department for fear that the incompetence will throw the department into disarray. Loyalty may be increasingly more important for sub-cabinet policymaking positions as the risk posed by ineptitude becomes less severe. In the case of ambassadorships, a president will award any number of them to his most generous supporters who not only made contributions to his campaign but also raised funds from many other af uent individuals. It has been settled law since the U. S.

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Supreme Court handed down its opinion in the case of Myers v. United States, 272 U.S. 52 (1926), that the president may dismiss all of his partisan appointees in the Executive Branch, not including the members of independent regulatory commissions, who may not be removed during their terms of of ce.

Presidential appointments to the most prominent positions in the Executive Branch—notably cabinet-level and top sub-cabinet- level positions, seats on independent regulatory commissions, and ambassadorships—require a vote of con rmation by the Senate if they are to be effective. His appointments to less prominent positions do not require Senate approval. The jobs of the president’s appointees have an “Executive Schedule” (EX) rating that determines the appointees’ salary.

Pursuant to the Civil Service Act of 1883, partisan appointment to positions below the policymaking level is now illegal. Professional and clerical positions. For professional and clerical jobs whose incumbents are relatively uninvolved in policymaking, appointees obtain their jobs through merit appointment to positions listed in the “General Schedule (GS) Classi cation System.” A person may obtain a job as a le clerk and be at the GS-1 level. A physician working as an experienced medical of cer may be at the top, GS-15 level. On occasion, an outstanding experienced civil servant may be promoted beyond the GS-15 rank: A civil- service executive may be appointed to “Senior Executive Service” rank, a non-executive may be appointed to “Senior Level” (SL) rank, and a research scientist may be promoted into the “Scienti c or Professional” (ST) rank. In the national government, professionals and clerical employees are appointed on the basis of merit to the federal civil service. All decisions about appointment and promotion are based on merit. A candidate’s merit may be assessed through an examination, evaluation of his educational transcripts, evaluation of his résumé, and observation of his performance in an employment interview. In theory, the most quali ed individual obtains the job. In order to eliminate patronage and spoils considerations in decisions about retaining and promoting employees, the civil-service system awards job security to appointees after a 1-year probationary period and then a

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2-year “career-conditional” period. The job security protects civil- service employees from dismissal as long as they do their jobs competently and obey laws and rules. An employee threatened with dismissal is entitled to impressive due process, including numerous hearings in which his appeal is heard. So complicated and lengthy is this process that executives rarely make the effort to dismiss an employee who is determined to hold on to his job. Uniformed appointment. Enlisted personnel and of cers in the armed services obtain their jobs through uniformed appointment. The ranks of enlisted personnel, including noncommissioned of cers, are speci ed by “Enlisted” (E) codes. For example, in the Army, a private has an E-1 or E-2 rank and a sergeant major has an E-9 rank. The ranks of of cers are speci ed by “Of cer” (O) codes. For example, in the Navy, an ensign has an O-1 rank and an admiral has an O-10 rank. Appointment as an of cer is based on merit. No particular merit is required to enlist as a private. Once a person is a member of the armed services, subsequent personnel decisions, such as promotions, are based on merit. One’s adherence to a political party is not a basis for appointment or promotion; on the other hand, one’s political activity can be deemed to interfere with her duty to serve the commander-in-chief (i.e., the president), the secretary of defense, and so forth, and can stop a soldier or of cer’s career in its tracks. Impartial appointment. Jobs involving trades, crafts, and unskilled labor (such as groundskeeper and janitor) are lled by impartial appointment of applicants to positions in the “Federal Wage System,” in which the employees have “Wage Grade” (WG) ranks. The managers who hire these employees do a relatively cursory review of the candidates’ applications, on which the applicants describe their training and experience. While the requirement of merit varies with some jobs requiring no particular merit for appointment, it is impermissible for the administration to take candidates’ political beliefs or activity into account.

The rinciples of ureaucrac Max Weber (pronounced v b r) was one of the legendary founders of

the modern discipline of sociology. In 1922, he published a description of

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the characteristics of bureaucracies. Generally speaking, the institutions of the U. S. national government’s Executive Branch conform to Weber’s descriptions. He offered these observations about the way in which bureaucracies operate.

Hierarchy. Weber explained that a bureaucracy is arranged as a hierarch . That means that those whose positions are located atop the bureaucracy have more authority than those whose positions are located at the bottom. The arrangement of power based on this “scalar principle” is known as the chain of command. That means that those at the top of the bureaucracy issue commands, and commands are communicated vertically from the top to the bottom as lower-level employees are expected to implement the orders. Unity of command. The principle of unit of command means that each member of the bureaucracy reports to one and only one supervisor. Division of labor. The organization of a bureaucracy is also based on the existence of a division of labor. This term means that work is distributed such that certain tasks are assigned persistently to the same individuals day after day, so that employees specialize in their regularly assigned tasks. Employees do not discover, upon their arrival at work on a given day, what kind of function they will carry out on that day. Merit. Weber said that decisions about appointments, promotions, and so on in the bureaucracy are based on quali cations rather than arbitrary criteria. Adherence to rules. A bureaucratic organization has a set of rules that determine how it will operate and what standards apply to employees. Some of these rules may be called standard operating procedures (or SOPs). Managers and employees are expected to be knowledgeable about these rules and to obey them; disobedience may attract a penalty. Impersonality of policies. In a bureaucracy, any kind of reward or disciplinary penalty directed toward an employee is expected to have resulted exclusively from the job-related performance or behavior of the employee, not on favoritism or prejudice. Therefore, if a supervisor res an employee, the supervisor might point out to the employee that “it’s nothing personal.”

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De ance of ierarchical Authorit The Constitution directs the president to “take Care that the Laws be

faithfully executed.” Therefore, the expectation must be that the of cials and employees who staff the Executive Branch are responsible for helping the president ensure that the laws enacted by Congress are administered. Unfortunately for presidents, compliance with their directives is hard to come by. Presidents Thomas Jefferson and William Howard Taft are both quoted as having said, “Every time I made an appointment, I ended up with nine enemies and one ingrate.” Many research studies have been conducted to determine why the president’s subordinates exhibit recalcitrance. This section of the chapter will describe what those studies have revealed.

Oversimplicity of the Hierarchical Model As we mentioned above, Weber identi ed hierarchy, in which a chain

of command is inherent, as a characteristic of bureaucracy. In the national government’s Executive Branch, the president would, presumably, take note of laws enacted by Congress, notify the bureaucracy about them, and instruct his subordinates about the manner in which he wants the laws administered; then, the Executive Branch’s workforce would administer the laws as the president has instructed them to do. However, while the Executive Branch is working to administer laws, other institutions in and out of government are operating simultaneously and attempting to exert in uence in the execution of the laws. In the case of the other two branches of the government—the legislature and the judiciary—they arguably have a legitimate basis for monitoring how the laws are being executed and making generally inescapable demands that Executive-Branch of cials act in ways that are contrary to the president’s preferences.

A list of institutions and other in uences that may persuade the bureaucracy to act in such a contrary manner follows:

Congress. The president competes for in uence over the bureaucracy with Congress, but Congress tends to be more persuasive to Executive- Branch of cials. As explained in Chapter 7, one of the routine functions of congressional committees is oversight of Executive-Branch agencies. After Congress has enacted a law and the Executive Branch proceeds to administer the law, congressional committees exhibit ongoing interest in whether the Executive Branch is administering the laws in the manner in

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which Congress intended. In order to carry out their oversight function, committees may summon Executive-Branch of cials to testify. If an of cial resists, the committee may issue a subpoena commanding the of cial’s appearance. In the case of high-ranking of cials, such as the president, vice president, or department heads, the White House may ght the subpoena on the basis that such of cials have busy schedules and should not be at Congress’s beck and call. On rare occasions, a federal court may consider whether the subpoena should be enforced and backed up with the threat of a penalty for contempt of Congress. Another compelling reason for agencies’ attentiveness to Congress and its committees is Congress’s exclusive power to appropriate money to Executive-Branch agencies. Agencies are reluctant to antagonize members of Congress, knowing that Congress is the source of nancial resources. Harold Seidman (1980, p. 54) reported that a cabinet member is more likely to lose his job because of a breakdown in his relationship with a congressional committee rather than because of a disagreement with the president.

Judiciary. The nation’s almost 225 years of experience with the U. S. Constitution has resulted in general acceptance of the federal courts as the conclusive decision-makers about the constitutionality of laws, the acceptability of executive agencies’ administration of laws, and the disposition of federal criminal cases. An order from a federal court to Executive-Branch of cials is something that no of cial wants to defy, even if the president wants them to defy it. The of cials know that de ance of a court order can expose them to nes or imprisonment. Just the threat of having to hire one or more lawyers and pay legal fees in order to deal with an altercation with the judiciary can be a very expensive proposition for an of cial.

Clientele groups. Many institutions in the Executive Branch have connections with clientele groups. For example, each of the clientele- oriented departments—such as Agriculture, Commerce, Education, Labor, and eterans’ Affairs—has, as its principal purpose, the delivery of services that will gratify its clientele group. Therefore, the secretary of

eterans’ Affairs cannot afford to alienate the leadership of such groups as the American Legion and the eterans of Foreign Wars. Given the choice between angering the president or angering the department’s clientele groups, a department of cial will usually focus on trying to appease the

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clientele groups. The president may forget about the argument, but the clientele groups are likely to carry a grudge against the of cial whose job, as they understand it, is to serve them every day.

As another example, many of the independent regulatory commissions (IRCs) were established to regulate a single industry (e.g., the Interstate Commerce Commission that was established to regulate the railroad industry). A body of economics and political-science literature arose in the 1950s and exposed the fact that the IRCs were susceptible to the phenomenon of clientele capture. This term refers to the tendency of IRCs to promote the industries that they are supposed to regulate, instead of promoting the public interest. Economists George J. Stigler and Claire Friedland (1962) reported that prices charged by regulated electric companies were no more than they would be without regulation. The Civil Aeronautics Board, whose purpose was to regulate air fares, was shut down in 1985; after the CAB’s elimination, air fares dropped precipitously.

The behavior of Executive-Branch institutions that shows more concern for pleasing clientele groups than for pleasing the president is described by a sociological term: going native (Katz and Kahn, 1966, p. 51). In literature of sociology, a member of an organization is said to “go native” when he identi es with the people on the wrong side of his organization’s boundary. Accordingly, when President Richard Nixon’s assistant for domestic policy, John Ehrlichman, became exasperated with the uncooperativeness of clientele-oriented department appointees whom the president appoints “and then the next time you see them is at the Christmas party. They go off and marry the natives” (quoted in Los Angeles Times-Washington Post News Service, 1973, p.79).

Others. Agencies may also be in uenced to make decisions unwanted by the president by such other entities as labor unions, employees’ professional associations, civil servants protected by job security, and the news media.

The result of all of these relationships is that presidents are left with frustration as many of their orders to the bureaucracy are disregarded. In fact, Howard Ball (1984, p. 6) reported that, in 1969-1970, “there was noncompliance with more than half of the president’s orders, commands, requests, and directives to the Executive Branch.” De ance of the president’s orders does not usually result in attempts by the president to dismiss the recalcitrants. Presidents are fully aware of the pressures that the

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of cials of clientele-oriented departments experience from their clientele groups, and know that replacement of such of cials will simply result in more of cials who go native. Frequent dismissals would simply make the president look inept, because, as the public is aware, he appointed the of cials in the rst place and the public would tend to wonder about the president’s judgment.

The Force Field Diagram The organization chart of the Executive Branch of the national

government is conventionally presented this way:

President |

| | | | | | | | | | | | | | |

C a b i n e t M e m b e r s

The chart continues and expands downward by identifying sub-cabinet appointees, agency heads, bureau chiefs, and civil servants.

However, the multiple points of access and in uence into the bureaucracy that are available to all sorts of political actors, as described in the preceding paragraphs, result in a reality that is far more complicated than that hierarchical chart. Grover Starling (2010/2011, p. 63) counters with a chart called the “force- eld diagram,” which re ects the multitude of in uences that affect an agency’s decision-making process.

The heads of agencies, far from being responsible solely to the political appointee to whom they report, nds themselves on the receiving end of countless demands, orders, and pieces of advice that they can ill afford to disregard as they make rules, regulations, and other policies and decisions. This causes them to routinely give less weight to what they know are the president’s policy preferences and to try to appease all of these other entities that may be applying pressure on them day in and day out. The simple chain-of-command principle may not stand up to this more complicated fact of life for executive of cials.

Chapter Nine: Executive Agencies

Discussion Questions 1. What factors complicate the president’s effort to manage the

Executive Branch? 2. Why do executive of cials frequently disobey presidential

directives? What does this behavior reveal about the motivations and incentives that executive of cials sense and that in uence how they do their jobs?

3. How much power do executive agencies, their executives, and their civil-service employees exercise? What are the sources of their power?

References Ball, H. (1984). Controlling regulatory sprawl: Presidential strategies

from Nixon to Reagan. Westport, CT: Greenwood Press.

Cronin, T. E. (1975). The state of the presidency. Boston, MA: Little, Brown.

Katz, D., & Kahn, R. L. (1966). The social psychology of organizations. New York, NY: John Wiley and Sons.

Seidman, H. (1980). Politics, position, and power: The dynamics of federal organization. New York, NY: Oxford University Press.

Starling, G. (2010/2011). Managing the public sector. (9th ed.), Boston, MA: Wadsworth/Cengage Learning.

Stigler, G. J., & Friedland, C. (1962, October). What Can Regulators Regulate? The Case of Electricity. Journal of Law and Economics, 5, 1-16.

Weber, M. (1922). Wirtschaft und gesellschaft: Grundriss der verstehenden soziologie. Tübingen, Germany: J. C. B. Mohr.

The Basics of American Government218