PADM 700 Public Administration Ethics, Statesmanship, & Governance 3

Chad B. Newswander is assistant

professor in the Department of Political

Science at the University of South Dakota.

His research interests include constitutional

governance, power and politics, and

domestic security.

E-mail: [email protected]

866 Public Administration Review • November | December 2012

Public Administration Review,

Vol. 72, Iss. 6, pp. 866–874. © 2012 by

The American Society for Public Administration.

DOI: 10.111/j.1540-6210.2012.02588.x.

Chad B. Newswander University of South Dakota

Th e pursuit of the common good must be understood from the reality that governing is ugly. Th e ability to grapple with situations that are ambiguous requires administrators to be cognizant of action that might be suspect but n ecessary to accomplish the public interest. Th is often requires them to become active players. John Rohr postulates that the U.S. Supreme Court’s standards of strict scrutiny is one approach that could be used to justify such action. Building on this line of thinking, the strict scrutiny test can be used as a guide to shape the constitutive character of administrative statesmanship while simultaneously restraining it. Th e ability to balance formative action and restraint provides a diff erent dimension to an understanding of administrative states- manship. Even though this process is not easy, it helps administrators refrain from going beyond the mark and enables them to act like statesmen in seemingly unresolv- able situations.

Chief William P. Hazen of the Secret Service division of the U.S. Treasury Department unilaterally assigned operatives to protect

the president in the spring of 1894 despite not having congressional approval to do so. Th e decision was based on information gathered from agents in Colorado concerning a potential assassination attempt against President Grover Cleveland. Operatives who were tasked with protecting the president were “instructed to stay in the vicinity of the White House during the daytime and watch for suspicious persons who might be Western gamblers, Anarchists, or cranks; and in the evening they were to attend meetings of Coxey’s Army, which was then in town” (President’s Commission 1964, 777). Hazen’s decision to assign the responsibilities of protecting the president and searching for threats provided the foun- dational elements for how the Secret Service would come to protect the president (Kaiser 1988).

What made Hazen’s command so bold was that he lacked the statutory authority to assign operatives the task of protecting the president. Although the need to guard the president might be clear from a

contemporary standpoint, this was not the case in nineteenth-century America. In fact, the status of the bodyguard was in disrepute (Ellis 2008; Melanson and Stevens 2002; Seale 1986). It had been a long- standing tradition, supported by Jeff ersonian ideals of presidential openness, not to rely on a bodyguard to secure the nation’s chief magistrate. Th is was one reason why Hazen did not go to Congress. He also did not have the time to petition for permission, and it would have been unlikely that the Secret Service would have received authorization. In avoiding this route, Hazen’s decision to push for a new understanding of presidential protection resembled an administrator trying to forge some degree of autonomy and constitute a new state of aff airs in rela- tion to a presidential bodyguard. Although his action was not legal or socially permissible, Hazen took steps to secure the common good by using resources at his disposal to protect the president from an increasingly dangerous situation.

Even though Hazen potentially acted like a statesman, his actions raise several concerns regarding the proper role of unelected offi cials in a constitutional republic. According to Herbert Storing, contemporary under- standings of statesmanship are built on the principles of populism/responsiveness and scientifi c manage- ment/effi ciency (Bessette 1995). A brief application of this view of statesmanship would quickly fi nd fault with Hazen’s decision. His action might have been effi cient, but he was not responsive to his elected representatives or the people. He failed to balance the twin values of responsibility and effi ciency. However, Storing fi nds this understanding of statesmanship to be problematic, even arguing that it “represents a decay” (Bessette 1995, 406). Th e issue with this contemporary view is that it has become so prevalent that it acts as a blinder to understanding older forms of statesmanship rooted in nonpopulist and nonsci- entifi c terms. Th e twin pillars of popular opinion and scientifi c management have become so prominent, according to Storing, that they serve as “bedrock principle[s] in which all else derives in American

Moral Leadership and Administrative Statesmanship: Safeguards of Democracy in a Constitutional Republic

Moral Leadership and Administrative Statesmanship 867

fi rst describes the diffi cult balance of statesmanship, constitutional morality, and legitimate authority faced by administrators. It then expands on Rohr’s framework by applying modifi ed strict scrutiny beyond legal and moral questions to one that addresses statesman- ship situations. Although there are limitations to this approach, the reliance on using strict scrutiny standards provides a meaning- ful guide that authorizes the ability of administrators to act like statesmen.

Statesmanship Th e concept of statesmanship has been understood in a variety of ways. James Ceaser defi nes statesmanship as being “the art of direct- ing matters to promote the public interest and—to add a ‘classical’ touch—educating or ennobling the public” (2007, 267). He further refi nes his analysis by attaching an eff ectiveness standard. He notes that statesmanship is “concerned chiefl y with handling political aff airs well” (267). Stephanie Newbold and Alicia Schortgen off er a similar understanding of the term based on Moses Maimonides’s political thought, arguing that a statesman is “to represent the interests of the state and its people with sound moral judgment and advanced intellectualism” (2011, 160).

Th e art of eff ectively directing the aff airs of the state can also be understood by recognizing what it is not. In particular, the demagogue is the opposite of the statesman. Ceaser (2007) argues that, like a pastry chef, the demagogue serves the people what they want, but the food is often bad for them. Th e reliance on using populist means to mobilize the people, according to Storing (Bessette 1995), is a form of contemporary statesmanship that obfuscates the inherent dangers of relying on rhetoric to achieve the common good. Th e acceptance of using rhetorical feats to accomplish state ends by presidents, members of Congress, or even administrators is a type of statesmanship that the founders sought to contain and control. Th e most eff ective way to ensure the ends of government was through a system of divided power that sought to achieve self-preservation, individual rights, and popular will (Tulis 1987).

Under this model, statesmanship reverts to an older model that considers the “adjustment of clashing interests in the name of the public good” (Franck 1989, 517). Despite Matthew Franck’s rejection of the idea of judicial statesmanship, his defi nition, which is rooted in founding discourse, begins to provide the concept with an additional layer that accounts for confl ict. Governing is a messy process. Rohr (1989) builds on this idea by noting the competing values and roles of a public servant. As a result of this tension, Rohr suggests that “at times the best is

enemy of the good” (1989, 67). Appropriate action considers both pragmatic conditions and the good. In the midst of ambiguity, uncertainty, and confl icting interest, states- men have to steer, even if it means that they have to make diffi cult choices that balance moral concerns (Newbold 2010; Niebuhr 1960; Schultz 2004; Walzer 1973). Dwight Waldo gets to the crux of this issue. He argues that statesmanship is “secur- ing a large measure of public morality at a small, or at least reasonable, cost in public

politics” (Bessette 1995, 406). Th is not only leads to a limited understanding of the term, but also decreases the ability of public offi cials to be actual statesmen.

Despite attempts to confl ate effi ciency and responsiveness as a form of statesmanship, some scholars have sought to devise other means of understanding the concept of statesmanship in administrative aff airs that are not trapped by populism and scientifi c management issues (Bessette 1995; Lawler, Schaefer, and Schaefer 1998; Morgan et al. 2010; Newbold 2005, 2010; Newbold and Schortgen 2011; Schaefer and Schaefer 1992; Taylor 1958). In particular, one angle that is heavily infl uenced by Storing takes the “form of ‘closet statesmanship’ and, in practice, requires the exercise of prudential judgment that looks more like judicial decision making than scientifi c management” (Morgan et al. 2010, 621). Th is approach fi ts nicely with Richard Green’s (1998) argument that administra- tive statesmanship should refl ect to a degree judicial statesmanship, which is embodied in the ethos of activist restraint. Like judges, administrators share a similar responsibility by upholding consti- tutional regime values. In pursuing this course of action, admin- istrative statesmanship should be regarded as “a drastically limited version of the original concept” (Green 1998, 107). Statesmanship should be narrowly constructed, to the point that administrators should “ perform occasional acts of statesmanship” but not “be statesmen” (108).

However, this method of seeing statesmanship as more “ educative than innovative” is problematic (Green 1998, 107). Although Green’s attempt to ennoble administrators through an educational process that enables them to raise the people’s understanding is noteworthy, it is still too limiting. It reduces the meaning, char- acter, and even power of statesmanship by privileging too much the values of impartiality and technicality over the importance of nonpopulist and nonscientifi c aspects. Although Green is correct in trying to create a narrow space for administrative statesmanship through the ideals of judicial restraint, he takes his arguments too far, thus reducing the power of administrators to resolve ambiguous problems.

Preserving Green’s insight regarding narrowness, John Rohr raises another avenue to pursue. He postulates that the strict scrutiny standards used by the U.S. Supreme Court provide “the beginnings of a framework” to examine diffi cult problems (1989, 140). Th e standards of “compelling state interest,” “least restrictive alternative test,” and “narrowly tailored” provide a way “to decide whether [administrators] should take an action that is morally ‘suspect’ even though it is not absolutely wrong” (140). However, Rohr did not extensively develop the beginnings of this framework, nor did he apply these standards to statesmanship situations. Building on this line of thinking, this article examines how a modifi ed version of strict scrutiny applied to administrative aff airs provides a constitutive character of administrative statesmanship while simultaneously restraining it. Th e ability to incorporate and balance formative action and restraint provides a diff erent dimension to an understanding of administrative statesman- ship. In developing this concept, this article

Th is article examines how a modifi ed version of

strict scrutiny applied to administrative aff airs provides

a constitutive character of administrative statesmanship

while simultaneously restraining it.

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868 Public Administration Review • November | December 2012

One angle, based on Storing’s vision, is to adopt the “skills and temperament of a judge rather than those of a policy wonk or technical analyst” (Morgan et al. 2010, 626). Th e reliance on using judicial decision-making techniques has become embedded within the fi eld of administration (Bumgarner and Newswander 2009; Cooper 1997; Morgan et al. 2008; Rohr 1986; Rosenbloom, O’Leary, and Chanin 2010; Spicer and Terry 1993). Judicial deci- sion making provides an “appropriate path for transcending com- mon sense” by considering both ends and means (Morgan et al. 2010, 628). In particular, it provides an avenue to begin wrestling with confl icting choices that result from statesmanship situations. Th e exactness of judicial tests provides administrators with a fair degree of discretion but also restrains them by providing a limiting principle.

A limiting principle based on the idea of restraint, however, does not equal inaction. Th e pursuit of the common good must be under- stood from the concrete reality that governing is ugly. It requires diffi cult choices that are not easily resolvable. Administrators must be not only active but also willing to take risks for the establishment of the common good. Th is path of taking active action is similar to Daniel Carpenter’s (2001) notion of autonomy, Brian Cook’s (1996) constitutive administrator, Rohr’s (1989) foundational value-creating situations, and Rosemary O’Leary’s (2006, 2010) guerrilla employee.1 Even though these approaches diff er on many fronts, they share an understanding that robust discretion is often needed, which pushes back against Morgan et al.’s idea of closet administrative statesmen who should lead from behind or Green’s position that they should perform more of an educational function. At times, administrators may need to achieve autonomy in order to alter preferences, or they may need to dissent in order to achieve the common good.

Yet this constitutive role is limited. Administrators do not have the legitimacy to reconstruct a political order based on alien values. What they do have is the legitimacy to create practices that promote values that are consistent within a constitutional ethic

that seeks to maintain a system of separation of powers and notions of equality, liberty, property, and due process of law. In this regard, statesmen are bound to uphold this ethos. Th ey often serve this function as a balance wheel by choosing sides among the three branches of government and choosing among diff erent ends of government (Rohr 1986).2 Th is is where an administrative statesman may diff er from O’Leary’s (2006) guerilla employee. Although both may take

steps toward dissent and may even seek to preserve a constitutional order, a guerilla employee does not necessarily feel confi ned to uphold regime values.

In addition to this balancing role, administrators, like judges, have the authority to interpret authoritative texts, which allow them to promote and act on certain values (Bozeman 2007; Rohr 1989; Van Wart 1998). Providing one example, Rohr points out how Chief Justice John Marshall and Chief Justice Charles Evans Hughes inter- preted the contracts clause diff erently. He notes that they “infused the contracts clause with a meaning they thought was appropriate

morality” (1974, 271). With Newbold’s application of dirty hands to the administrative context (2005, 2010), this defi nition could be refi ned by noting that not only public morality must be sacrifi ced, but also, at times, private morality. Th is balancing act refl ects the stark reality that “the demands of statesmanship are ill at ease in the realm of absolute moral imperatives” (Rohr 1993, 246).

However, Newbold (2005, 2010) might push her model of states- manship too far, at least from an administrative perspective. She relies on Walzer’s framework (1973), which allows public offi cials on very rare occasions to sacrifi ce their souls for the good of the state. Th e lack of constraints is necessary here because public offi cials must choose between preserving principle and promoting the good of the state. Yet this approach lacks a limiting principle. Th is critique is similar to that leveled against Walzer (Donagan 1977). Th ere is a general issue, according to Alan Donagan, that Walzer “cannot rid himself of the Machiavellian conviction that common morality incapacitates ordinary politicians in constitutional states from acting eff ectively when confronted with unscrupulousness” (1977, 186). Walzer’s approach not only fails to see how common morality can fi nd solutions to moral problems, but also does not off er a way to constrain behavior.

Even with these concerns, Newbold is able to bring to light the clash between the public good, political feasibility, and private morality. Th is set of conditions makes it diffi cult to govern, especially for administrators, who are not granted power through the democratic process. Under the U.S. Constitution, much of the democratic process is led not by the people themselves, but by elected repre- sentatives and administrative experts. Because administrators are not directly elected by the public, they occupy what is perceived as a contestably illegitimate position in political aff airs. However, the legitimacy problem is partially mitigated by the character of administration, which refl ects the Senate’s original function for moderation, representational characteristics that typify the common citizen, and the oath of offi ce (Bessette 1995; Morgan et al. 2010; Rohr 1986, 2002). In particular, Rohr (1986, 2002) argues that oaths bind civil servants to higher ideas while also granting them a measure of autonomy. As they pledge fealty to the Constitution, civil servants are bound by constitutional dictates, but they are also pro- vided with the discretion to act as statesmen by upholding regime values. In this way, they are free to act as political individuals, while at the same time, they are bound to a common constitutional foundation for morality. Rohr urges “the career civil servant to come to terms with his or her role as part of the governing elite” (1984, 139).

Administrative Statesmanship As a result of this status, administrators are constitutional actors who actively uphold and form regime values (Cook 1996; Wamsley et al. 1990; Wamsley and Wolf 1996). Th is provides them with opportunities to act like statesmen. Because scholars such as Storing were “not inventing a role they did not already perform,” there remains the question of how administrators should approach the role of “practicing statesmanship” (Morgan et al. 2010, 626).

As they pledge fealty to the Constitution, civil servants are bound by constitutional dic-

tates, but they are also provided with the discretion to act as

statesmen by upholding regime values.

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Moral Leadership and Administrative Statesmanship 869

actions “substantially address, if not achieve, the avowed purpose” (Shaw v. Hunt, 1996).3

Even though strict scrutiny is a judicial test, its standards allow administrators to use elements of this form of judicial review for

clarity in how to manage suspect situations. Administrators are not expected to perform the same level of analysis that judges are required to do. Th is is why it is a modi- fi ed standard. Administrators have to make decisions in the midst of ambiguity without knowing the exact results of their actions. Th ey may use these standards as a guide

to evaluate their actions. With this approach, civil servants can utilize elements of these standards as a way to shape their actions when there is confl ict between administratively created means and constitutionally mandated ends. Th e careful treatment of how they wrestle with this balance can be enriched by analyzing what Max Weber (1958) calls an ethic of ultimate ends and an ethic of responsibility. He is able to reconceptualize this issue by examining how means and ends are not mutually exclusive. In fact, they may supplement each other. An ethic of ultimate ends relates closely to a deontological mode of analysis: individuals have a duty to uphold moral standards. An ethic of responsibility falls more in line with utilitarianism: individuals should be more concerned about ends.

At face value, these two modes of ethical inquiry seem to be in confl ict. One privileges means, while the other inquiry values ends. However, Weber argues for a consideration of “political action in the whole way of life” (1958, 77). For Weber, “an ethic of ultimate ends and an ethic of responsibility are not absolute contrasts but rather supplements, which only in unison constitute a genuine man” (127). A whole person should be able to weigh an ethics of ends and responsibility (Svara 2007). Considering both means and ends in such a context allows individuals to “make the best moral choice which the circumstances permit” (Wolfers 1949, 178). Th is harkens back to Rohr’s (1989) argument about balancing noble ideas with practical considerations, which often requires pursuing a suspect course of action.

By establishing a link between means and ends, strict scrutiny is roughly in line with Weber’s concepts. Th e basic assumption of strict scrutiny is that it secures the norm. It privileges an ethic of ultimate ends to an extent. Th ere are certain convictions that must be held, which are often rooted in rights discourse in a U.S. context (Glendon 1991). However, strict scrutiny does not neglect the utili- tarian view point either. If an end is compelling and the means to achieve those ends are narrowly tailored, then strict scrutiny is able to justify morally ambiguous acts to achieve a greater good. However, it does not justify absolute wrongs, which is why the two models are not in complete unison. Although Weber’s balance “allows statesmen to violate their principles for the good of the state” (Newbold 2005, 676), the standards of strict scrutiny place a limit on such behav- ior. In this setting, an administrative statesman does not become a suff ering servant to the same extent described by Weber (1958), Walzer (1973), and Newbold (2005). Pursuing questionable action may result in internal and external suff ering, but one does not risk losing his or her soul in the process. Hence, strict scrutiny provides

for their times” (1989, 232). Th e diff erence of interpretation based on an authoritative text allowed them not only to create a new understanding of the commerce clause, but also to justify emerging administrative practices. Tying this thought to administration, Rohr argues that “just as Supreme Court justices diff er over the meaning of the Constitution, bureaucrats can diff er over the meaning” (1989, 232) of their own authoritative texts. He then proceeds to ask administrators to provide “examples of value- creating situations that arise in government agencies where the outcome of a decision depends on how bureaucrats interpret authori- tative statements” (1989, 232–33).

Th e act of constituting a mean and interpreting a value begins to shape and even alter the ends of government. Th e authority to give meaning to regime values through the formation of administrative practices creates a dynamic relation between means and ends. Ends shape administrative means. Additionally, the establishment of means through administrative discretion provides meaning to ends. Th is dynamism is a core insight of the role of administrative consti- tutiveness (Newswander 2011, forthcoming). Administrators do not merely deal with the given; they also must create in order to resolve problematic situations (Newswander and Newswander 2012).

Th is constitutive character of statesmanship, however, can be at odds with the principle of restraint. It is a delicate balance, and this is why it is important that administrators be equipped with a proper understanding of their roles in a constitutional republic: managerial, political, and legal (Rosenbloom 1983, 2000). In raising this issue of how to balance these competing standards, Rohr postulates that the Supreme Court’s standard of strict scrutiny is one approach that could be used, as it incorporates the principles of both restraint and bold action. Although Rohr’s initial inquiry dealt with applying strict scrutiny to ethical issues, a modifi ed version of this test nicely fi ts with statesmanship situations.

Strict scrutiny is the most stringent judicial test that the Court uses to examine constitutionally suspect issues. It is very diffi cult for the state to defeat its exacting standards. Even though the prior standard of strict scrutiny being fatal in practice was dismissed in Grutter v. Bollinger (2003), the state still has to be exacting to overcome its burdens. Strict scrutiny is applied when government action jeop- ardizes a fundamental right, such as freedom of speech, or when government action uses a suspect classifi cation, such as race or national origin. To pass this standard, government action must be narrowly tailored to serve a compelling state interest. Th e justifi ca- tion of the “compelling state interest” standard goes well beyond the test of reasonableness, which is used to justify classifi cations that require only minimal scrutiny. Th e state must have an overriding need to excuse a potential but not an absolute violation of a consti- tutional right. Th e action to achieve that end must also be “narrowly tailored,” or what the Court sometimes calls the “least restrictive alternative.” Th is allows government action to rely on “narrowly tailored means or by the available means least restrictive” of infring- ing on a particular right (Wright 1989, 60). Th is standard allows the government to craft diff erent solutions to particular situations (Bush v. Gore, 2000). Although there may not be a principle that cohesively ties together these solutions, the Court expects that these

Administrators have to make decisions in the midst of

ambiguity without knowing the exact results of their actions.

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870 Public Administration Review • November | December 2012

$10 million, nor were they given the authority to consider buying additional land.

With these directions, Livingston manifested some degree of restraint when French foreign minister Charles-Maurice de Talleyrand fi rst off ered to sell not just New Orleans, but also the rest of Louisiana right before Monroe’s arrival. Even though Talleyrand wanted to preserve New Orleans and Louisiana, Napoleon wanted to sell both. In response to this off er, Livingston noted that there was only interest in New Orleans and the Floridas. However, he gave himself some room to consider the off er, informing Talleyrand that he would present the off er to Monroe when he arrived in a couple of days (Kukla 2003). Over the next four weeks, Livingstone and Monroe exceeded their instructions and negotiated a deal that would bring Louisiana into the territorial fold of the United States for $15 million.4 In informing Madison of the deal, they wrote a “defensive letter, since both men knew the Louisiana they have bought bore little resemblance to the one the administration wanted” (Kastor 2004, 41). Yet, according to Peter Kastor, this was also “a triumphant letter” (41). Th ese administrators brought to the forefront a decision that “involved the whole philosophy of what kind of nation Americans wanted” (Cerami 2003, 193). Th ey did not do this out of dissent, which is a key characteristic of the gue- rilla employee. Th e dramatic consequences of acting in a formative way by providing the possibility of acquiring new territory should not be confused with a guerilla mentality that seeks to “work against the wishes—either implicitly or explicitly communicated—of their superiors” (O’Leary 2006, xi). Th ese administrators were not seek- ing to undermine their superiors; they acted in a way that was more in line with the directives given to them, even though their decision was still suspect and went beyond their authority.

Th e justifi cation that Monroe and Livingston off ered to validate the decision to exceed their mandate resembled the doctrine of strict scrutiny. Th ey immediately presented in their letter to Madison an ethic of responsibility. Th ey argued, “An acquisition of so great an extent was, we well know, not contemplated by our appointment; but we are persuaded that the circumstances and considerations which induced us to make it will justify us in the measure to our Government and country” (Livingston and Monroe 1903, 191). Th ere was a clear compelling state interest to pursue a course of action that allowed the United States to achieve so great of a landmass without war. Th ey argued that this action would further separate the United States from Europe and make the Union more independent and self-suffi cient. Both diplomats understood the importance of such a maneuver, and neither one of them considered their actions to be an absolute wrong. Instead, they understood their actions to be suspect.

Th e decision to exercise their discretion and go beyond their techni- cally mandated obligations required that they make a proper justifi - cation. In so doing, they provided reasons based on the concepts of “narrowly tailored” and “least restrictive alternative.” Th ey initially agreed to negotiate for the whole, because of French insistence, to have a chance to get the part. Th is would allow them also to approx- imate the price of purchasing New Orleans and the Floridas. But, more importantly, the agreement to start negotiations by consider- ing the entire landmass would preclude any other parties that might also be interested. In this regard, both Livingston and Monroe acted

administrators a way to satisfy the demands of responsibility and ends without having to commit an absolute wrong.

Statesmanship Situations Th is mixture of ultimate ends and responsibility can be seen in administrative contexts. Th omas Jeff erson’s purchase of the Louisiana Territory is one example of statesmanship (Newbold 2005, 2010). At fi rst glance, it appears that strict scrutiny stand- ards justify Jeff erson’s actions, morally and legally, because they served a compelling interest that was narrowly tailored to the situation. Th ere was no viable alternative. Jeff erson’s preferred choice of passing a constitutional amendment was not feasible. He had to act, even if it led to taking New Orleans by military force. As a whole person, Jeff erson was able to shape his discretion by balancing an ethic of ultimate ends and an ethic of responsibil- ity. However, his decision to buy the territory ran up against the principles of strict construction. From Jeff erson’s own perspective, he believed that using his discretion to purchase the territory from Napoleon was not suspect, but wrong. Th is act violated both his own moral principles and the Constitution as he saw it. Jeff erson performed the act, but he was guilty of dirty hands (Newbold 2005, 2010).

In addition to her perspective on Jeff erson, Newbold briefl y examines the concept of administrative discretion, but she over- looks whether two key administrators who played an integral part in facilitating the purchase could also be classifi ed as administra- tive statesmen. Robert Livingston was appointed by Jeff erson and confi rmed by the Senate to serve as the ambassador to France. Upon his arrival, he started to make subtle inquiries concerning French interest in selling New Orleans and West Florida. He made these understated overtures by working through back channels. Th ese initial attempts started to have “an impact on the thinking of Napoleon and his senior offi cials” (Brecher 2006, 107). Although the formulation of a strategy to persuade Napoleon to part ways with New Orleans had some impact, Jeff erson and Secretary of State James Madison were somewhat frustrated with Livingston’s administrative skills and his inability to make more headway in France (Cerami 2003). It was not until James Monroe was tasked with serving as a special envoy to France that conditions started to change signifi cantly. Th e envoy’s explicit mandate was to petition Napoleon regarding his interest in selling New Orleans and the Floridas. Th e implicit message was that Jeff erson was willing to take New Orleans by force if necessary.

To achieve the mission, both President Jeff erson and Secretary Madison “defi ned their objectives in limited terms” (Kastor 2004, 39). Yet one of the reasons Monroe was chosen as a special envoy was that Jeff erson knew these precise details might have to change (Kukla 2003). With no ability to communicate, Jeff erson had to trust in Monroe’s ability to use his discretion to make the best deal for the United States, even though he could not predict the personal and political ramifi cations the deal would have on his presidency. Monroe and Livingston might have to go beyond direc- tions provided to them. In particular, they were given exact details by Madison regarding their role. Th ey were to petition Napoleon regarding his interest in selling the seaport of New Orleans and the Floridas. Th is inquiry was the extent of their authority. Th ey were not given permission to negotiate the terms of a deal beyond

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Moral Leadership and Administrative Statesmanship 871

created a new, more threatening context. In light of these attacks, there was a growing concern regarding the safety of the president’s life. Th is atmosphere was reinforced in the United States by the economic recession caused by the Panic of 1893 and the invasion by Coxey’s Army in 1894. In the midst of this political and economic turmoil, the U.S. government began to focus on enemies of the state. As early as 1889, Congress moved to create laws and regula- tions to exclude perceived dangerous immigrants. In a report related to immigration, it was believed that “many persons belonging to the criminal class have been sent to the United States by offi cials of the European Governments” (Congressional Record, 51st Cong., 1st sess., 998).

Th ere was a perception that a class of criminal known as the anar- chist had infi ltrated the American state and had started to erode its basic principles. Th e report concluded that “these disorderly persons do not come here to uphold and maintain our form of government” and “no amount of eff ort would improve their morals or ‘Americanize’ this class of immigrants” (Congressional Record, 51st Cong., 1st sess., 999). Between 1893 and 1894, the enemy-of-the- state rhetoric only grew harsher. Congressman Joseph Sibley (PA-D) expanded the list of threats to include not just anarchists, but also socialists, polygamists, ex-convicts, and criminals of every class (Congressional Record, 53rd Cong., 1st sess., 2526). On these terms, no one should be admitted to the United States or be allowed to become a naturalized citizen. Congressman James Sherman ( NY-R) advocated that if “he is not a man of good moral character, that he is not attached to the principles of our Government, and is not disposed to the good order and peace of the same, he ought to be excluded” (Congressional Record, 53rd Cong., 2nd sess., 8557).

Th e rise of enemies of the state coincided with the rise of a class of bodyguard. Th e president was no longer secure in open spaces sur- rounded by unfamiliar and unpredictable citizens. President Grover Cleveland recognized that uneven economic and political conditions directly aff ected his safety. With this sentiment, he began fortifying

the White House. Reporter Frank Carpenter of the Los Angeles Times reported in 1893 that Cleveland “is almost as well watched as any monarch of Europe. Policemen are stationed about the White House grounds, and the White House itself, as it is now arranged, is almost crank proof.” Carpenter noted that guards marched up and down Pennsylvania Avenue, police were stationed in strategic locations inside the White House, and a guard was used to create a perimeter outside the White House. With this move to secu-

ritize the White House, he observed that the “President is seldom away from the eyes of the police.”

Th is rudimentary protective apparatus began to change signifi cantly as a result of two events. First, the impending arrival of Coxey’s Army in the spring of 1894 caused increased awareness about presidential vulnerability. In reaction to the Panic of 1893 and the massive unemployment that ensued, a group of Americans marched on Washington, D.C. Th e president reacted to this danger and increased the size of the metropolitan police guard that protected the White House from 12 to 26 offi cers (Pendel 1902). Even after

with considerable restraint. Th eir intentions were fi rst to fulfi ll their presidential mandate, not go beyond it. However, they soon dis- covered that the French negotiator “was absolutely restricted to the disposition of the whole” (Livingston and Monroe 1903, 192). As whole individuals who encapsulated the balance between an ethics of means and ends, they contemplated French demands. According to Livingston and Monroe, “On mature consideration, therefore, we fi nally concluded a treaty on the best terms we could obtain for the whole” (192). Th e central aspect of the narrowly tailored concept is the ability to achieve a compelling state interest, which this treaty accomplished. Th e next crucial component is the least restrictive alternative test. In this case, both diplomats attempted to propose other viable solutions that did not require them to put the United States government in a precarious situation. However, Napoleon was insistent that the entire land be sold, which put both American negotiators in a compromised position. Upon refl ection, they chose to use their status to accept the only alternative before them: purchase the whole.

Th e consequences of this action by these administrators served as a catalyst in the future makeup of the United States.5 Th ey could have adhered to the technical requirements of the deal and walked away from the negotiating table. However, they chose to achieve a com- pelling state interest through the least restrictive means available. Th e other likely course of action would have been war, which both Livingston and Madison noted would have cost the country a great deal more. Although some scholars point to Napoleon as the great driving force (Ellis 1998; Kastor 2004), while others consider Jeff erson’s moves (DeConde 1976; Kukla 2003), there is a grow- ing acknowledgment of the role of administrators in this process (Brecher 2006; Cerami 2003; Sheehan 2004). Even though Monroe and especially Livingston adjusted their accounts afterward to achieve credit for their actions (Brecher 2006; Kukla 2003), this does not discount their bold administrative action, which required an element of statesmanship. Charles Cerami notes that “[i]f any single principle that was at work here has to be credited most, it is that intelligent persons who understood the big picture were able to make wise decisions beyond their normal level” (2003, 284). Th e case of Livingston and Monroe shows how administrators can play a role in statesman- ship situations. Th ey exemplifi ed moral agency as they pursued a course of suspect action in order to achieve the common good. In the process, the focus on justifying and constituting an administrative mean to solve a political problem aided in the formation of an evolving American identity. In this sense, they acted like statesmen.

In a similar situation noted earlier, Chief William Hazen of the Secret Service also encountered a statesmanship situation that required suspect action. Th e late nineteenth century was chaotic. Leaders all across Europe and the United States had been targeted by global anarchists. Th e assassinations of President James A. Garfi eld in 1881, Czar Alexander II in 1881, President Sadi Carnot of France in 1894, Prime Minister Antonio Cánovas del Castillo of Spain in 1897, Empress Elizabeth of Austria in 1898, King Umberto of Italy in 1900, and President William McKinley in 1901

Th e case of Livingston and Monroe shows how

administrators can play a role in statesmanship situations. Th ey exemplifi ed moral agency as

they pursued a course of suspect action in order to achieve the

common good.

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872 Public Administration Review • November | December 2012

Gaining authorization from Congress would have taken too long. He could have asked the U.S. marshals to perform the task, but they did not have the national intelligence network (Johnson 1995). It was the Secret Service that had the resources and knowledge not only to protect the president, but also to gather intelligence on various threats. At the time, there was no alternative federal police agency that had the ability to undertake such a mission. Th is put Hazen in a statesmanship situation. He had to act in a suspect manner to achieve and protect the person of the president. At this moment, he became a guerrilla statesman.

However, Hazen’s guerrilla statesmanship acts in the spring of 1894 quickly faded. Th e continued expansion of presidential security alongside a lack of any initiative to receive congressional authoriza- tion put Hazen in a precarious situation regarding his statesmanship status. Instead of going to Congress after the immediate threat had passed, he continued to increase the scope of protective measures to include the fi rst family. Although he was clearly still operating under a compelling state interest, Hazen was no longer acting in a way that was narrowly tailored to the situation. In fact, there is some evidence that the president was not even aware that his family was being protected in the summer of 1894 at Gray Gables while he was in Washington. From this angle, Hazen made a unilateral decision that even excluded the president (Kaiser 1988; Melanson and Stevens 2002; Sherman 1983). Even though Cleveland accepted these protective measures for himself and his family, the president did not have the sole right to justify Hazen’s actions. After four years of protection, Hazen did not try to present a case to Congress to receive permission, nor did he try to convince the president to go to Congress and ask for protective services. In this later context, he acted merely as a guerilla employee.

Th e inability to maintain such a high standard is one reason Green (1998) argues that administrators should seek to perform acts of statesmanship but not be statesmen. In this regard, Hazen’s stay as chief of the Secret Service is both a heroic and cautionary tale. He was able initially to make a statesmanship decision regarding the proper course of action to take after a viable threat emerged. However, administrators are not typical statesmen. Th eir version of statesmanship is a narrower version that should ascribe and limit action. In this case, Hazen’s later decisions were not guided by a limiting principle; they grew bolder and more aggressive. Th ere is value in looking at Hazen from a mixed perspective. He performed both acts of statesmanship and acts of hubris.

Th e ability to grapple with situations that are ambiguous requires administrators to be conscious and cognizant of action that might be suspect but necessary to accomplish the public interest. Th is often requires them to move out of the shadows and become active

players in a constitutional republic that has become increasingly evident in contempo- rary administrative situations. Th e decision by two civil servants in the Offi ce of Legal Counsel in the U.S. Department of Justice to write a memo in 2010 justifying the killing of American-born Anwar al-Awlaki is another example of a potential statesmanship situa- tion. David Barron and Martin Lederman carefully crafted this memo to be narrowly

the army disbanded, Henry Th urber, secretary to the president, advised Cleveland that it would be “advisable to still keep the full force owing to the unsettled condition of the times” (Pendel 1902, 151). Th ese threats of insecurity forced Cleveland to reexamine the prudence of living and traveling without some level of protection.

Second, the Secret Service unilaterally decided to start protecting the body of the president in the spring of 1894 after discovering a plan to kill Cleveland. To secure the president, Hazen sent two agents to Washington, commissioned them as special policemen, and assigned them to guard Cleveland. Because of the increased fear of a possible attempt on the president’s life and worry about the safety of his family, Hazen expanded protection outside the White House during that summer as agents accompanied the Clevelands to their summer home at Gray Gables. Th e Chicago Daily reported that a security detail of three operatives was stationed at the president’s summer home to protect his wife and children, especially from the threat of being kidnapped (1894). Th e New York Times reported the same year that the security detail “was received with some surprise here, for the matter had been kept a secret for nearly two weeks” (1894).

Th is trend of expanding presidential security continued. Agents also started to accompany the president during his trips (President’s Commission 1964). With this task, operatives built barricades between the president and the people. In New York, one reporter tried to walk up to the presidential carriage to ask Cleveland a few questions. He was intercepted by two agents and was told that “they had their orders and no one was going to get near the carriage” (Chicago Daily Tribune 1894c). It was reported that the issue of safety is “ever present to Mr. Cleveland’s mind, and he is not taking any chances with his family either” (Chicago Daily Tribune 1894b). Six weeks after these articles appeared in the press, the Chicago Daily Tribune again issued an article accusing Cleveland of being guarded like a czar. Th e article asked, “What on earth there is for twenty-seven policeman to do in the vicinity of the White House is a mystery to those who know anything about Washington, but it is deemed indispensable by those in authority” (1894a).

It was not until 1898 that a congressional audit discovered that the Secret Service was diverting funds and agents to protect the president. Congress demoted Hazen to fi eld operative for exceeding his primary mission of investigating counterfeits. Unlike Monroe and Livingston, whose actions eventually had been checked and legitimized by the U.S. Senate in approving the sale, Hazen had actively worked against the wishes of Congress. Hazen understood that his initial decision to protect the president without explicit congressional authorization was suspect. He was in a situation in the spring of 1894 that required immediate action. Yet like Monroe and Livingstone, his decision to make this bold move marked a keen understanding of what needed to be done. It appeared that a viable threat existed, which required that some type of action be taken immediately. Protecting the president was of paramount concern. It served a compelling state interest, as two previous presidents had been assassinated in the previ- ous 35 years. In addition, Hazen had no other alternative means to secure the president.

Th e ability to grapple with situations that are ambiguous requires administrators to be conscious and cognizant of action that might be suspect

but necessary to accomplish the public interest.

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Moral Leadership and Administrative Statesmanship 873

Acknowledgments I would like to acknowledge John Rohr, Anthony Molina, and Patrick Overeem for their input.

Notes 1. Even though Cook is partly right that Rohr’s line of reasoning fi ts with an

instrumental orientation, as administrators should seek to run the Constitution alongside regime values, he overlooks Rohr’s consideration that administrators create multiple interpretations of authoritative texts, which is constitutive in nature.

2. A discussion about balancing means and ends would be remiss in failing to mention that rights, especially due process, can also be perceived as impedi- ments to managerial concerns (Bozeman 2000; Kaufman 1977). Herbert Kaufman points out that “one person’s ‘red tape’ may be another’s treasured safeguard” (1977, 4).

3. In achieving the avowed purpose, it is important to note that cost-eff ectiveness should not be confl ated with being narrowly tailored. Th ey are distinct terms.

4. In cases in which funding is at play, such as the purchase of the Louisiana Territory, politicians not only have the chance to check whether administrative action is narrowly tailored and serves a compelling state interest, but also can debate the possible alternative uses of public funds. Th is adds another dimen- sion, if not complication, in applying a strict scrutiny standard to administrative situations.

5. Even though securing the Louisiana Territory was in the national interest, it is important to note that this decision undermined Native American interests and facilitated the confl ict surrounding the expansion of slavery.

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In statesmanship situations, administrators are in a position to help form the political order. Although this insight tends to be lost in favor of trying to restrict their role, administrators need to under- stand that they encounter ambiguous situations that require them to act. To mitigate the problem of overreaching, civil servants can apply the standards of strict scrutiny as a way to limit yet also enable action in concrete situations. By incorporating these modifi ed elements into an administrative perspective, civil servants can be guided by these standards, which grant them a broad scope of discretion to achieve a compelling state interest. However, the narrowly tailored princi- ple simultaneously restricts their discretion. Administrators have to carefully search for means that not only will accomplish a compelling interest, but they must also be narrow. Th e ability to balance these two prongs refl ects the capacity of administrators to reconcile means and ends. Even though this process is not easy, it helps administra- tors to refrain from going beyond the mark and enables them to act like statesmen in seemingly unresolvable situations.

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