5.1 Presidential Constitutional AuthorityThe Framers of the Cons.docx

5.1 Presidential Constitutional Authority
The Framers of the Constitution created a presidency that would
take direction from Congress. The president is given several
formal constitutional powers, most of which are checked by
Congress. Presidential power is intended to be used to preserve
and protect the Constitution through the president’s expressed
and inherent powers. Expressed powers refers to powers listed
explicitly in the U.S. Constitution. Inherent powers refers to
powers that have been inferred from language in the U.S.
Constitution. Together, expressed and inherent powers in the
Constitution establish the office of the presidency and give its
occupant the authority to preserve and protect the Constitution.
Article II of the Constitution establishes executive power and
who may hold it: “The executive Power shall be vested in a
President of the United States of America.” Article II also
establishes the president’s formal authority, which includes
being commander in chief of the U.S. armed forces and chief
executive. The president also has the authority to negotiate
treaties, nominate persons for high-level appointed office, veto
acts of Congress, and grant reprieves and pardons. The language
of the Constitution gives the president the power to make
treaties as long as two thirds of the Senate concurs. This
example of checks and balances is referred to as “advice and
consent” in the U.S. Constitution. The Senate also has the
power to confirm presidential nominations to high-level office.
The veto power, which is the power of the president to reject
bills passed by Congress, is found in Article I.
Authority as Commander in Chief
Article II, Section 2 of the Constitution states, “The President
shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when
called into the actual Service of the United States.” This means
that the president must authorize any use of force by the
military. It does not mean that he or she will personally lead

troops into battle like a medieval European king. The
requirement that presidents authorize the use of force
establishes the sacred principle of civilian control of the armed
forces. If the military establishment were equal in power to
other institutions, it could easily overthrow the civilian
government and thus upend one of the hallmarks of modern
democratic governance, the peaceful transfer of power.
Civilian control, at least in the early days of the American
republic, was ensured by the absence of large standing armies.
In fact, the Constitution mentions an army and navy only
because these were the only two branches of the military that
existed when it was written. They were separate departments,
and each was equal to the other. The secretary of war and the
secretary of navy both sat in the president’s Cabinet.
Today’s Cabinet includes a single secretary of defense, but that
position was not created until after World War II, with the
passage of the 1947 National Defense Act, the law that created
a unified Defense Department. Until that global conflict, the
United States called state militia—what are known today as
National Guard units—into national service. Much of the
American fighting forces are still made up of National Guard
units. They were called up in 2001 when the nation went into
Afghanistan, and again in 2003 when it went into Iraq. Militia
members of these units are normally under the command of their
respective governors, but once called, they are under the
command of the president.
Use of the state militias for national service was formally
adopted with the Militia Act of 1792, which gave the president
the authority, in the event or threat of an invasion, to call into
service as many troops from state militia as would be needed to
repel the invasion. The president would be able to call upon
those militia companies that would be “most convenient to the
place of danger or scene of action.” This meant that if the
country were invaded off the shore of Maine, the president
could call on militia companies in Maine, Vermont, New

Hampshire, and Massachusetts. Because they would be close to
the place of invasion, they could respond quickly. This would
also give the states a role in defending the nation. Instead of
having to build national bases in all the states to house a
standing army, the army would be formed as needed. Less than
a week after the Militia Act was passed, Congress passed a
second Militia Act of 1792, which required each able-bodied
white male citizen between the ages of 18 and 45 to enroll in
the militia of his respective state.
The organization of the country’s military forces fundamentally
changed in the 20th century. In 1903, Congress passed
legislation to organize the various state militias into the current
National Guard system, which was to be administered jointly by
the National Guard Bureau and the U.S. Department of Defense.
With passage of the 1916 National Defense Act, approximately
one half of the U.S. Army’s available combat forces and
approximately one third of its support organizations were
National Guard units.
To call the militia into service during a time of crisis is to rely
on civilian defense and to democratize the sense of sacrifice, a
concept that still resonates today. As an example, when the
United States went to war with Iraq in 1991, it amassed around
500,000 troops on Iraq’s border. Most of these troops were
taken from state National Guard units. The United States
certainly could have used its professional national army, but by
calling on state units, the president gave all citizens a stake in
the outcome.
Authority to Pardon
Article II, Section 2 also grants the president the authority to
issue pardons. The president “shall have Power to grant
Reprieves and Pardons for Offenses against the United States,
except in cases of Impeachment.” This would seem to suggest
that the president can pardon anyone who has committed a
federal crime.
Presidents may pardon convicted criminals who have already
served part of their prison sentence. The president might issue a

partial pardon, which often amounts to a commutation of a
sentence, or pardon somebody who has long been a fugitive
from justice. President Bill Clinton, for example, pardoned
Marc Rich, a financier charged with evading $48 million in
taxes and committing more than 50 counts of fraud. Rich had
fled the country and was living in Switzerland at the time of his
indictment.
As another example, in 1974 President Gerald Ford issued a full
pardon to Richard Nixon for Nixon’s role in the Watergate
cover-up, which meant that the former president could never be
charged for crimes related to Watergate. The Nixon pardon was
viewed as an attempt to heal a badly divided nation and move
forward.
A president does not usually decide on pardons by him- or
herself. Most of the time, he or she does not know the person
being pardoned. Rather, somebody may apply for a pardon, in
which case White House lawyers and the Justice Department
study the matter and make a recommendation.
Veto Authority
As a check on the power of the legislative branch, the
Constitution gives the president the authority to veto bills
passed by Congress. One potential consequence of vetoes is that
they might invite Congress to respond, if Congress has the
votes, by overriding the veto. An override is often seen as a
political defeat for a president. Overrides are rare; only 7% of
all vetoes have been overridden since the beginning of the
republic.
When the president vetoes a bill, the president must veto the
entire bill and not parts of it; the U.S. Constitution does not
provide for what is called a line-item veto. Congress gave
President Bill Clinton the line-item veto with the Line Item
Veto Act of 1996. The law was soon overturned by the Supreme
Court in Clinton v. City of New York (1998). The Supreme
Court struck down the law because the act violates the
Presentment Clause (Article I, Section 7), which requires that

bills passed by both houses of Congress be presented to the
president for his or her signature. In essence, the Presentment
Clause outlines the legislative process, which the Supreme
Court argued was violated by giving the president the line-item
veto.
Treaty Making and Effective War-Making Authority
A group of people standing in front of an audience wearing
pink shirts that read “Peace with Iran.” They are holding signs
that read “Congress try peace” and “Thank you John Kerry.” A
police officer stands in the foreground.
Section 2 also says that the president “shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur.” This means
that the president can make treaties with other countries, but
they are not binding on future governments unless they are
ratified by the U.S. Senate. A president may negotiate a treaty
to end a war, but the Senate may opt not to ratify it.
In the aftermath of World War I (1914–1918), President
Woodrow Wilson sought to make the United States a signatory
to the Versailles Treaty, which was the agreement that
effectively ended the war. Part of the treaty was a call for the
formation of a new League of Nations, an intergovernmental
organization that would foster peace and international
disarmament. Wilson wanted the United States to join this
league, but some members of Congress believed that it could
lead to U.S. involvement in conflicts that did not concern the
country. When Wilson refused to compromise on any parts of
the treaty, the Senate failed to ratify it, and Wilson never
recovered politically. When the Senate refuses to ratify a treaty,
it puts the president and the nation in a vulnerable position
because it can be construed as a sign of weakness. Another
country, sensing that weakness, may view it as an opportunity
to wage war against the United States.
5.2 Presidential Elections
In addition to stipulating presidential powers, Article II also
sets forth guidelines for presidential elections. For example, it

states that the president “shall hold office during the term of
four years.” Presidential elections take place in two distinct
phases. The first phase is the nomination phase, which normally
begins in January of presidential election years. Through a
series of primaries and caucuses run on a state-by-state basis,
delegates are chosen to attend party-nominating conventions.
Following the conventions, the party nominees begin
campaigning for the general election that is held on the first
Tuesday following the first Monday in November.
Presidential Primaries
Although the nomination season begins in January, those
seeking the presidency often begin their quest as early as 2
years before a national election. Candidates may declare their
intentions to run a year in advance of the nomination season.
During this time, they travel around the country and meet
voters, state party chairs, and potential donors. Running for
office entails a lot of retail politics, which involves candidates
interacting with voters one on one, such as by taking part in
local events.
The season begins in earnest with the Iowa caucuses. During a
caucus, individuals gather for a few hours at a local meeting
place and move to a section of the room designated for their
favorite candidate’s supporters. During this process, they can be
challenged by another candidate’s supporters. At the end of the
exercise, the number of delegates apportioned to a candidate is
based on the percentage of support each receives.
Iowa does not produce many delegates, but, as the first state in
the nomination season, it provides momentum going into bigger
contests as an indicator of party support. The next contest is the
New Hampshire primary. Primaries are like elections in that
polling places are open for at least 12 hours and registered
voters come to the polling place and vote as individuals. There
are two types of primaries. Closed primaries require that voters
be registered with the political party of the primary in which
they are voting. Closed primaries exclude registered
independents. Open primaries allow registered voters, including

registered independents, to choose the party’s primary in which
they would like to vote regardless of their party registration. As
with caucuses, delegates are apportioned based on the
percentage of the vote that each candidate receives.
Candidates who win the Iowa caucuses or the New Hampshire
primary are often advantaged in the early weeks of the
nomination season because money follows winners. Candidates
who win either of these contests are able to draw significant
contributions and media attention, which in turn help them to
spend money on advertising in bigger contests that produce
more delegates. Those who do not fare well early in the season
usually find it difficult to raise money and will likely drop out.
Raising funds is critical because a successful candidate can
spend more than $500 million. Voters living in states holding
their primaries late in the season will likely choose between just
two candidates unless all but one candidate has withdrawn from
the race.
Each political party finishes the first part of the presidential
election season during the summer of the election year with its
nominating conventions. Each party nominates a president/vice-
president ticket based on the number of delegates received by
the presidential candidates. The presidential nominee is the
person receiving the most delegates, and the presumed nominee
selects the vice-presidential candidate. The official campaign
for president then begins in September.
The Electoral College
The president is elected by the Electoral College and not by
popular vote. The Electoral College is composed of electors
from each state. The number of electors each state is allotted is
dictated in Article II:
Each State shall appoint, in such manner as the Legislature may
direct, a number of electors, equal to the whole number of
Senators and Representatives to which the State may be entitled
in the Congress; but no Senator or Representative . . . shall be
appointed an elector.

As president of the Senate, Vice President Joe Biden presided
over the Electoral College vote count that reelected President
Barack Obama in 2012.
There are a total of 538 electoral votes cast (including three for
the District of Columbia), and a candidate needs a simple
majority—270—to win. For most states, the candidate who wins
the popular vote in that state wins that state’s electors. The only
exceptions are the states of Maine and Nebraska, which allocate
their electoral votes based on the popular vote in each state’s
congressional district. The candidate who wins the popular vote
in the state also earns two statewide votes.
Each candidate’s party signs up a slate of electors, who are then
pledged to vote for that candidate. As an example, New York
casts 29 electoral votes. In 2012, the two major candidates, Mitt
Romney and Barack Obama, signed up slates of 29 electors each
in the state (see Figure 5.1). Because Obama won the popular
vote in New York, his slate voted in the Electoral College and
Romney’s slate did not. The winner-take-all system often
results in candidates earning a far higher percentage of electoral
votes compared with the popular vote. For example, in 1992,
Bill Clinton earned 43% of the popular vote and President
George H. W. Bush earned 38%. (Independent candidate H.
Ross Perot earned 19% of the vote but did not win the popular
vote in any state. This means that Perot did not win any
Electoral College votes.) Bill Clinton won the Electoral College
vote with 69%; Clinton earned less than half of the popular vote
and more than two thirds of the Electoral College vote.
In choosing where to invest resources, candidates and their
campaign organizations usually choose states with close races
(often called battleground states). They tend not to spend too
much time or money in states where they are already likely to
win or lose that state’s Electoral College vote. Because minority
groups, whether racial, ethnic, or religious, tend to be
concentrated in large, electoral vote-rich states, the electoral
system provides representation for these groups that they
otherwise might not enjoy. If they vote as a group, they can

form a voting bloc that can make or break the state for a
candidate, because the winner of the state’s popular vote (no
matter how slim the margin) will win that state’s electoral vote
in all but two states.
Still, there are those who maintain that the Electoral College
system is not democratic. It rarely happens that a candidate who
wins the popular vote loses the Electoral College, but it has
happened four times, including 1824, 1876, 1888, and 2000. In
the presidential election of 1876, Samuel Tilden, a Democrat
from New York, won the popular vote over Republican
Rutherford B. Hayes from Ohio. The Electoral College vote was
in question because Florida, Louisiana, and South Carolina each
sent two sets of electoral votes to Congress.
In 2000, Democratic Vice President Al Gore won the popular
vote over Republican Texas Governor George W. Bush. Gore
was leading in the Electoral College on Election Day, although
the outcome in Florida was unknown. Without Florida’s 25
electoral votes, neither candidate would have the needed 270
electoral votes to win (266 for Gore, 246 for Bush). The number
of total electoral votes cast was 537, and not 538, in 2000
because an elector from the District of Columbia abstained from
voting in the Electoral College that year, although Florida’s
electoral votes would put either candidate over the top. After
several recounts and an order from the Florida Supreme Court to
have a full recount, the U.S. Supreme Court ordered the
recounting to stop. Bush was declared the winner, and Gore
conceded defeat. Many Florida voters, especially minorities,
believed that their votes were not counted because of confusion
about ballot design, misplaced ballots, and other concerns. This
election especially left a sour aftertaste because it appeared to
many that the U.S. Supreme Court decided the outcome of a
presidential election for the first time.
5.3 The Difference Between Domestic and Foreign Policy
Presidents
The president of the United States is the most important
political leader in the country. When the president speaks, the

words carry weight and have influence. But the president’s
influence is not even in all policy realms. Political scientist
Aaron Wildavsky famously observed that from a political
standpoint, the nation is usually led by two presidents embodied
in one person. One is a domestic policy president, who tends to
be weak, and the other is a foreign policy president, who tends
to be strong.
The Domestic Policy President
In the realm of domestic policy, Congress tends to dominate
because Americans tend to be more concerned about issues
closer to home than they are about issues abroad. Because most
members of Congress are elected and reelected on the basis of
local issues and their ability to deliver goods back to their
districts, Congress is reluctant to defer to the president on those
domestic issues. On the contrary, if a presidential agenda
interferes with the interests of a member’s constituency, that
member may choose to vote against the president even if he or
she is of the same political party.
A domestic policy president is also reined in by changes in the
composition of Congress. The president’s party most often
experiences losses in midterm congressional elections, which
weakens the presidential mandate. A mandate is the perception
that an elected official can do what he or she thinks the people
want because of the popular support due to an electoral victory.
Winning by a wide margin means a stronger mandate.
Additionally, Congress members winning reelection may be
anxious about the next election and may less often support the
president’s agenda. In the midterm election of 2014, President
Obama’s party lost 13 seats in the House of Representatives and
nine seats in the U.S. Senate. In losing those nine seats in the
Senate, the Democrats lost their majority party status. Midterm
elections are best understood in the context of surge and decline
theory. Surge and decline theory argues that midterm
congressional elections, which are considered low stimulus
because the general public pays less attention compared with
high-stimulus presidential elections, attract core voters. Core

voters tend to vote against the president’s party in midterm
congressional elections. Consequently, the president’s party
tends to lose seats in both houses of Congress during midterm
elections. While the end result may be gridlock, it may also be
viewed as an assertion of constitutional checks and balances.
Still, the president is increasingly expected to play more of a
role in domestic policy. During an economic recession, when
more people are out of work, the public tends to hold the
president responsible and expect that the president will pursue
policies that create jobs. During the Great Depression, President
Franklin D. Roosevelt actively pursued policies to get the
nation back to work. Following World War II, Congress passed
the Employment Act of 1946, which specified a greater role for
the president in economic policy. To that end, the law
established the new office of the Council of Economic Advisors,
a group that would monitor the economy and prepare reports
that the president would submit to Congress each year. This
meant that the president and his staff would be involved in
planning the budget and, by extension, establishing the nation’s
domestic policy priorities.
The president was to have more of a voice in domestic affairs,
as his ability to appoint officials, even to independent
regulatory agencies, meant that he would be able to appoint
those who were sympathetic to his policy priorities. Article II,
Section 3 of the Constitution says that the president “shall take
Care that the Laws be faithfully executed, and shall Commission
all the Officers of the United States.” This means that the
president is responsible for carrying out laws and implementing
policies and programs that have been passed by Congress. As
this responsibility falls on the president, the president’s role in
domestic affairs only grows as Congress creates more programs,
especially when power and authority (also discussed in the
previous chapter) are delegated to the executive branch.
The Constitution gives the president limited formal roles in the
legislative process (signing or vetoing legislation). However,
presidential influence outside these formal roles is critical to

the legislative process. For example, the Constitution requires
that the president give Congress information on the state of the
union “from time to time.” In modern times, the State of the
Union has become a televised annual address to Congress. In
having the State of the Union address televised, the president is
using an informal power, the power of persuasion, by
encouraging the public to pressure Congress to go along with
the requests being outlined in the State of the Union.
The Foreign Policy President
In the realm of foreign affairs, presidents can often act with
fewer congressional constraints compared with domestic affairs
for several reasons. For instance, the president is the face of the
nation when dealing with other countries. When it comes to
negotiating treaties, there can be only one president, not 535.
Even though treaties require a two-thirds vote in the Senate to
be ratified, senators tend to defer to the president on treaties
because of the need for the country to speak with one voice.
Further, the public does not perceive foreign affairs to affect
their daily lives, so most people tend not to care about foreign
affairs as much as they do domestic issues. A Congress that
defers to the president in foreign policy is not perceived as
shirking its representative function in the way that a Congress
that defers to the president in the domestic arena might be.
Most of what the Constitution says about the president’s
authority pertains to foreign policy, whereas most of what it
says about the authority of Congress pertains to domestic
policy, although both branches enjoy significant powers in both
policy areas. With the federal division of power and authority
between the states and the national government, the Framers
assumed that states would naturally be responsible for domestic
policy and the national government would be responsible for
foreign affairs. The Constitution assigns the president, and not
Congress, to be commander in chief of the armed forces. The
president also has the express authority to conduct foreign
affairs by appointing and maintaining ambassadors and
counselors abroad, and to negotiate treaties with other

countries. Congress can hold hearings and request reports from
the president, but it does not have much foreign policy authority
other than to ratify already negotiated treaties, raise armies, and
declare war.
Arguably, declaring war and raising armies go hand in hand
with Congress’s primary power of the purse. A declaration of
war would require raising an army to wage that war, which in
turn would require a congressional appropriation, or spending
bill. Still, much of the president’s more expansive powers in
foreign affairs are derived from presidential prerogative.
5.4 Presidential Power
The Framers of the U.S. Constitution sought to clarify
presidential power to avoid the potential abuse of power that
might be found in a single executive. The Framers’ previous
experience with a single national executive occurred when King
George III abused his power over the colonists. Consequently,
the Framers feared the potential for abuse from a single
executive, which motivated them to list the specific powers of
the president. Over time, though, presidents have argued that
the U.S. Constitution suggests that the president has more
powers in order to ensure fulfilling the president’s
responsibilities.
Presidential Prerogative
President George W. Bush speaks in support of the 2001 USA
PATRIOT Act, which was enacted as part of his War on Terror.
The act allowed federal law enforcement to arrest those
suspected of terrorism and hold them indefinitely without trial.
Presidential prerogative is an implied power that enables a
president to expand his or her authority in ways not specifically
stated in the Constitution. In essence, presidential prerogative is
the notion that the president may act outside the power
specified in the U.S. Constitution. Implied powers emerge from
various elements found in Article II. For example, though it
states that the president should “take care that the laws be
faithfully executed,” it does not specify how the president

should use his or her constitutional power to ensure that the
laws are enforced. Similarly, the Constitution does not outline
the powers and expectations associated with the president’s
commander-in-chief role. Presidential prerogative may be
interpreted in much the same way that one might interpret
Congress’s Necessary and Proper Clause, which allows
Congress to take actions ensuring that its enumerated powers
are carried out.
Following the terrorist attacks of September 11, 2001, President
George W. Bush declared a “war on terror.” (Congress has the
sole power to declare war; in making this declaration, the
president was seeking public and congressional support in
responding to the terrorist attacks.) President Bush made it clear
that the United States would go after terrorists around the world
as well as those countries that harbored terrorists. Bush’s
approach initially led to undeclared war in Afghanistan because
terrorist training camps were located there, and then the
undeclared war in Iraq due to the assumption that the Iraqi
government was also supporting terrorism. Bush justified his
actions as a legitimate exercise of presidential prerogative
because of his obligation to preserve and protect the
Constitution. Earlier terrorist attacks against the United States,
including the 1993 attack on the World Trade Center, had been
treated as criminal justice matters. The 2001 attack was of a
different magnitude. Nearly 3,000 people died.
Political Power
Growth of the Presidency
Over the course of history, each of the president's constitutional
powers has expanded beyond that which was originally
envisioned. Foreign policy is a case in point. During most of the
19th century, the federal government's policymaking role was
small, as was its bureaucracy. But with the Great Depression of
the 1930s and World War II, the president's role increased
dramatically.
Presidential prerogative has had the effect of expanding the
scope of presidential power over time. Historian Arthur

Schlesinger argued that through the use of presidential
prerogative, particularly during periods of emergency,
presidents have taken on imperial characteristics (Schlesinger,
2004). Even with presidential prerogative, though, the president
must be able to persuade others and wield political power to be
truly effective.
Power as Persuasion
More than 50 years ago, political scientist Richard Neustadt,
who had served in President John F. Kennedy’s administration,
defined presidential power as the power to persuade (Neustadt,
1991). Likewise, members of Congress are elected separately
from the president, and the president has no control over their
decisions. All the president can do is attempt to convince others
that his or her ideas are preferable to the alternatives. A
president who can get others to do what he or she wants through
persuasion can be said to truly possess power.
The Importance of Public Support
A president’s ability to persuade will be enhanced if the
president is popular with the public and his or her party holds
the majority party in one or both houses of Congress. Popularity
is important because the president can point to it as a reason
why critics should not be so quick to dismiss what he or she has
to say. Party support in Congress is important because the
president can appeal to party loyalty to put his or her agenda
forward. The president’s ability to persuade members of his or
her own party in Congress is also enhanced by his or her ability
to campaign on their behalf for reelection, especially if the
president enjoys widespread public support.
But a president’s ability to persuade can easily be hindered by a
drop in public support or by significant congressional midterm
election losses in his or her own party. Presidential party losses
in midterm congressional elections are often taken as a rejection
of the president’s previous 2 years of governing. President Bill
Clinton, who was elected in 1992 with Democratic majorities in
both houses of Congress, lost both houses in the 1994 midterm
election. His party lost 50 seats in the House of Representatives

and eight seats in the Senate. Losses of this magnitude make it
more difficult for a president to use the power of persuasion.
5.5 Executive Branch Organization
The Constitution provides for a president, vice president, and
executive departments but is silent on presidential staff. Yet the
president’s responsibilities have increased greatly since the
office was created. The role of the vice president has become
further defined. The Constitution does not identify any powers
or responsibilities of the vice president, although modern
presidents have extended greater vice-presidential involvement
in their administrations, which also adds to already increasing
executive staff needs. There has been significant growth in the
executive as to both breadth (the type of office) and expertise
and number of staff persons, in order to accommodate
increasing presidential and vice-presidential responsibilities in
the modern era.
Cabinet
The president’s Cabinet is composed of the heads of executive
branch departments, most of whom carry the title of secretary.
The term was coined by newspaper reporters during George
Washington’s presidency to refer to his four department heads:
the secretary of state, the secretary of the treasury, the secretary
of the army, and the attorney general, who serves as the
“secretary” of the Justice Department. There are now 15
Cabinet-level departments, which include Commerce, Energy,
Transportation, Defense, Labor, Interior, Health and Human
Services, Housing and Urban Development, Agriculture,
Education, and, most recently, Homeland Security. The vice
president and the ambassador to the United Nations have also
been invited to join the president’s Cabinet.
The role of the Cabinet is largely undefined. A president may
seek counsel from individual Cabinet members as well as call
for regular meetings. Presidents will also use their Cabinets to
demonstrate that they are not acting alone.
Executive Office of the President

The Executive Office of the President (EOP) consists of staff
members reporting directly to the president and multiple
support staff levels. It is generally headed by a White House
chief of staff. The EOP originated in 1936, when President
Franklin Roosevelt established a Committee on Administrative
Management to evaluate administrative procedures in the
executive branch. The concern in establishing the committee
was that the business of government had become so vast that it
was too much for one person to oversee.
The original EOP, formally created by executive order in 1939,
was to consist of six administrative assistants to the president,
along with three advisory bodies: the National Resources
Planning Board, the Liaison Office for Personnel Management,
and the Office of Government Reports. By the time Jimmy
Carter took office in 1977, the EOP had around 1,700 full-time
staff members. Today, the EOP consists of the president, plus
11 other councils and offices:
Council of Economic Advisors
Council on Environmental Quality
Executive Residence
National Security Council
Office of Administration
Office of Management and Budget
Office of National Drug Control Policy
Office of Science and Technology Policy
Office of the United States Trade Representative
Office of the Vice President
White House Office (includes the president’s immediate staff of
advisors)
White House Staff
The White House staff is made up of analysts and advisors, such
as communications advisors, political advisors, the press
secretary, speech writers, legislative aides, and the White House
physician. The White House staff is usually composed of people
the president can trust. Unlike Cabinet members, a staff member
does not need to be confirmed by the Senate.

The White House staff is organized within several office units,
each of which employs additional staff members. The White
House staff also includes persons on temporary assignment who
are sent from other executive branch agencies and departments
to work in the White House. The size of the White House staff
has grown from a few dozen persons to several hundred more
recently.
5.6 The Concept of a Wartime President
We have already noted that foreign policy–focused presidents
tend to be stronger than domestic policy–focused presidents.
During times of war and international conflict, it is common for
presidents to assume greater authority and claim greater power
and discretion. As outlined earlier, presidents exercising more
discretion during wartime and international conflict often
begins with presidents exercising their prerogative. Add to that
a tendency on the part of Congress to defer to the president on
foreign policy–related matters, and it is apparent that presidents
often have free rein during times of international crisis.
As we will discuss in this section, even when the
constitutionality of presidential actions has been challenged
during wartime, the Supreme Court has tended to side with the
president. Scholars suggest that this is because the Supreme
Court recognizes the importance of the country being unified,
especially during wartime. Once these conflicts end, the
Supreme Court will often reassert the constitutional separation
of powers.
In a 1977 interview with David Frost, former President Richard
M. Nixon explained his view of the imperial presidency.
Imperial Presidency
We noted earlier Arthur Schlesinger’s argument that the use of
presidential prerogative, coupled with Congress’s tendency to
defer to the president in foreign affairs, has at times led to an
imperial presidency. By this phrase, Schlesinger meant a
president who assumes he or she is above the law and can do
what he or she pleases, whether it is because he or she can
claim that there is a crisis and subsequent need to exercise

authority, because he or she won the election by such a large
margin that he or she can claim a mandate, or because of some
other reason. Schlesinger was considering Richard Nixon, who
famously observed in an interview with David Frost that an
action that is, by law, illegal is “not illegal” if the president
does it. It was not uncommon for Nixon to invoke a national
emergency to justify exercising his prerogative. At other times,
Nixon called attention to a “silent majority” of the public who
supported him but were not vocal, thereby suggesting that a
Congress that opposed him did so at its own peril.
Wartime Dictatorship
During times of war, presidents have taken actions to limit
individual rights on the grounds that such actions protect the
public interest. This has sometimes been called a “wartime
dictatorship.” Among the most notable occurred during World
War II, when President Franklin Roosevelt ordered the
quarantine of Japanese citizens and U.S. citizens of Japanese
descent with an executive order. Suspected of being loyal to
Japan, these persons were rounded up in California, the state of
Washington, and Oregon and brought to detention camps or
subjected to a curfew that limited their ability to work and
otherwise perform ordinary tasks outside the home. Two thirds
of these persons were American citizens, a large percentage of
whom were born in the United States or whose parents were
born in the United States. These limitations on individual
citizens’ freedom were challenged before the U.S. Supreme
Court. For example, Gordon Hirabayashi was a university
student who had never visited Japan and was never suspected of
disloyalty to the United States. Nevertheless, he was convicted
of disobeying a military curfew on the grounds that the curfew
was a legitimate defensive measure during wartime. The U.S.
Supreme Court upheld Hirabayashi’s conviction in Hirabayashi
v. United States (1943). In Korematsu v. United States (1944),
the Court found that forcing U.S. citizens of Japanese descent
into internment camps during World War II was a legitimate

exercise of presidential power, justified during times of
“emergency and peril.”
Once World War II drew to a close, the Supreme Court would
defer less to the president’s actions to limit individual rights. In
1988, President Ronald Reagan signed legislation offering a
formal apology and compensation to surviving victims of the
internment camps.
The Japanese internment camp at Manzanar, California, in 1943.
The Supreme Court ruled that U.S. citizens of Japanese ancestry
might constitute a security risk, and therefore forcing them into
internment camps was a legitimate wartime action.
Use of Military Tribunals
During times of emergency, many American presidents have
sought to use military tribunals to try enemy combatants.
Following the September 11, 2001 terrorist attacks and the
launching of the military action against Afghanistan, the
question arose about what to do with enemy combatants
captured by American soldiers. According to the Geneva
Convention on war, captured enemy soldiers are to be
considered prisoners of war and held in prison camps until the
end of the conflict, at which point they are to be sent home.
Suspected terrorists, however, are neither soldiers, as they are
not fighting for a nation state, nor civilians. Can enemy
combatants be tried in military courts? Critics argue that to do
so would not only violate the Geneva Convention but contradict
basic constitutional guarantees. Defenders of the policy point to
precedent, the most notable being Ex Parte Quirin in 1942.
This case involved four German marines who came ashore on
Long Island, New York, from a submarine with orders to
sabotage American war industries. After changing into civilian
clothes and burying their uniforms and explosives, they headed
to New York City. Several days later, another four marines
came ashore in Florida with similar orders. The leader of the
New York group then defected to the FBI, and the remaining
seven were rounded up, tried, and convicted by a military
commission specially appointed by President Roosevelt under a

broad claim of emergency authority. On appeal to the Supreme
Court, the “Nazi saboteurs,” as they came to be known, claimed
that they should be tried in civilian court because they were not
wearing their uniforms when arrested. The government argued
that they were enemy aliens who entered the country as
belligerents. The Court sided with the president, noting that
the detention and trial of petitioners—ordered by the President
in the declared exercise of his powers as Commander in Chief
of the Army in time of war and of grave public danger—are not
to be set aside by the courts without the clear conviction that
they are in conflict with the Constitution or laws of Congress
constitutionally enacted.
Suspects who associate themselves with the military arm of an
enemy government are considered enemy combatants and are
not then entitled to use civilian courts. Since 2001, this has
become a tricky question because the U.S. war on terror is
levied against paramilitary terrorist groups that are not
employed or otherwise sponsored by a government.
In Hamdi v. Rumsfeld, the U.S. Supreme Court ruled that, in
time of war, the president may use military tribunals for
emergency purposes. The problem with the ruling is that
because of the War on Terror, tribunals could go on
indefinitely.
Recall that the USA PATRIOT Act allowed the executive to
round up suspected terrorists in the United States and detain
them without access to attorneys. In the 2004 case of Hamdi v.
Rumsfeld, the Court addressed whether such detention was
legal. The case was brought by the father of Yaser Esam Hamdi,
who wanted to know what charges his son faced. Because
Hamdi was being held in a military facility, the case constituted
a request that Secretary of Defense Donald Rumsfeld produce
the accused and announce the charges. In this case, the Supreme
Court was not ready to give the office of the president the same
authority it had had during World War II. On one level, the case
was different from that of the German saboteurs because the
saboteurs were not U.S. citizens. On another level, the

situations were similar because both involved persons labeled
enemy combatants and thus should be viewed similarly.
The Court held that a citizen-detainee seeking to challenge his
or her classification as an enemy combatant must receive notice
of the factual basis for his or her classification and a fair
opportunity to rebut the government’s claims. The Court held
that circumstances might also dictate that “enemy proceedings”
may be tailored to alleviate their uncommon potential to burden
the executive at a time of ongoing military conflict. The Court
concluded by observing, “There remains the possibility that the
standards we have articulated could be met by an appropriately
authorized and properly constituted military tribunal.” A
president in a time of war, then, has the authority to use
military tribunals as an emergency measure. The problem
remains, however, that because it was a “war on terror” being
fought, and not a war declared against any nation, there was a
potential that it could continue indefinitely.
5.7 Limiting Presidential Power
As the preceding discussions of both presidential prerogative
and wartime presidents show, a president can assume a great
deal of authority and become quite powerful unless the other
branches of government impose restraints. Historically, the
balance of power between the president and Congress has swung
back and forth. Often, after periods of strong presidential
authority or perceptions that a president has exceeded the
bounds of prerogative, Congress responds with attempts to
control the president’s power. There have been occasions when
Congress has passed presidency-curbing legislation to reassert
checks and balances. The two most notable examples were the
1973 War Powers Resolution and the 1974 Budget and
Impoundment Control Act.
War Powers Resolution
The War Powers Resolution of 1973, introduced at the
beginning of this chapter, was intended to make the president
more accountable to Congress when it comes to using
presidential war power. Presidents have seen their commander-

in-chief role to include responding to attacks with force as
essential to their obligations to preserve and protect the
Constitution. As outlined in the vignette that opened this
chapter, Congress can fail to pass authorization. In the case of
Libya, Congress also voted down a bill to stop funding, perhaps
recognizing that pulling the plug would have disastrous
implications for the United States’ image abroad. In the end,
President Nixon vetoed the War Powers Resolution, claiming
that it was unconstitutional. Congress’s response was to
override the veto, and the War Powers Resolution remains in
place today. Still, presidents have uniformly called the War
Powers Resolution unconstitutional because it infringes on their
commander-in-chief function.
The last time that a president sought a declaration of war was
on December 8, 1941, against Japan. Since then, presidents have
used their commander-in-chief power to wage war absent a
formal declaration of war. In some cases, such as the wars in
Korea (1950–1953) and Vietnam (1961–1975), presidents have
circumvented the need for a formal declaration by labeling the
conflicts “police actions.” In Vietnam, President Johnson did
seek and received a congressional resolution to respond to an
attack on American ships in the Gulf of Tonkin in 1964. The
deeply unpopular war, while undeclared, was only exacerbated
with President Nixon’s secret bombings in Cambodia and
elsewhere beginning in 1969.
The Budget and Impoundment Control Act
The Budget and Impoundment Control Act was Congress’s
response to Richard Nixon’s practice of refusing to spend
authorized and appropriated monies for programs that he did not
support. Nixon, who opposed the social spending programs of
the 1960s, would request less money for these programs while
Congress would respond by appropriating more. Nixon then
impounded the difference. The effect of this practice was to use
impoundment as a form of line-item veto. Historically,
impoundment had been considered a sound fiscal practice
because it enabled a president to move funds from over-funded

to under-funded programs, or to reduce spending so that the
government would not run a deficit.
Like the War Powers Resolution, the Budget and Impoundment
Control Act is about presidential accountability to Congress.
Title X of the Act expressly forbids the president from
impounding funds, although the president can defer spending
funds for 45 days. Congress has the right to veto that deferment,
which means that the funds would have to be spent as
appropriated. If Congress fails to act within 45 days, the
deferment continues indefinitely, which means, in effect, that
the funds have been impounded. The president can pursue
another course by requesting that Congress rescind the amount
of money appropriated for a program over what was initially
requested. If Congress passes a rescission bill within 45 days,
the funds are also effectively impounded. If Congress fails to
act, the money must be spent as appropriated. This measure also
created a Congressional Budget Office (CBO) to offer
independent analyses of budgets proposed by the president. The
CBO was designed to be a counterweight to the Office of
Management and Budget (OMB) in the White House.
Impeaching a President
Impeachment: Good or Bad?
On Bill Moyers’s show, experts discuss benefits of
impeachment.
The Constitution outlines the impeachment process as means of
controlling the president. Impeachment is the first step in a
formal mechanism by which Congress can remove a president
from office. To be removed from office, the president must be
convicted by the Senate of “high crimes and misdemeanors,”
which is often understood to mean a constitutional crisis where
Congress believes that the president is usurping Congress’s
powers or is refusing to abide by Congress’s wishes.
In Federalist No. 65, Alexander Hamilton explained that
impeachment deals with matters that have violated the public
trust:

The subjects of its jurisdiction are those offenses which proceed
from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature
which may with peculiar propriety be denominated POLITICAL,
as they relate chiefly to injuries done immediately to the society
itself.
In using the term “political,” Hamilton might be alluding to the
separation of powers. When the president usurps the authority
of Congress, the president has committed the political crime of
violating the separation of powers. When Congress investigated
the break-in at Democratic Party headquarters at the Watergate
Hotel and the possible cover-up by the White House, it often
requested information from the president. Nixon typically
refused to hand over such information, claiming that it was a
matter of national security. Congress tried to secure the
information by going to court at times to force the president to
do so. The House of Representatives Judiciary Committee voted
to impeach President Nixon. Following a court order to turn
over the White House tapes, President Nixon resigned before he
could be impeached by the full House and tried in the Senate.
5.8 Presidential Character
The president is the nation’s head of state and head of
government, as well as a world leader. Consequently, much is
made about a president’s character and what that character says
about the president’s ability to lead. Political scientist James
David Barber (2015) has argued that the president’s character
affects how the president handles his or her various roles, which
will affect how the president works with Congress, responds to
international issues, interacts with the public, and works with
the Cabinet and the White House staff. There are four distinct
character types based on two questions: First, is the president
actively involved in his or her presidency (active) or does he or
she delegate responsibilities to others (passive)? Second, is the
president happy being president (positive) or is he or she
generally unhappy in how he or she engages with the office
(negative)? Barber’s work focuses on presidents beginning in

the 20th century. The four character types are active-positive,
active-negative, passive-positive, and passive-negative.
Active-Positive
Active-positive presidents come into office with an active
policy agenda and set out to achieve it through hard work.
These presidents have a positive outlook on life and are very
energetic. Examples of active-positive presidents include John
F. Kennedy and Franklin Roosevelt. They were optimistic,
especially Roosevelt during the Great Depression, and they
were ready to work with members of Congress to get their
agendas passed.
President Woodrow Wilson, who served from 1913 to 1921, was
considered an active-negative president. He came to office with
an active domestic policy agenda.
Active-Negative
Active-negative presidents also come into office with good
ideas, energy, and a desire to accomplish great things, but
something in their personality brings them down and results in
policy and political failures. Barber considered Woodrow
Wilson, Lyndon Johnson, and Richard Nixon to be examples of
active-negative presidents.
Passive-Positive
Passive-positive presidents are often viewed as caretakers who
do not come to office with any great enthusiasm but might rise
to the occasion during a time of crisis. According to Barber,
passive-positive presidents are responders and not initiators or
pushers. These presidents like to accentuate the positive and be
cheerleaders: “In the Presidency they are, in many ways, nice
guys who finished first, only to discover that not everyone is a
nice guy” (Barber, 2015).
Passive-positive presidents often seek the office because
electoral victory represents personal affirmation and boosts
their self-esteem. Barber offered Warren G. Harding and Ronald
Reagan as passive-positive presidents.
Passive-Negative

Passive-negative presidents do not really want to be president
but will serve out of a sense of duty if called upon by their
nation. Examples of passive-negative presidents include Calvin
Coolidge and Dwight Eisenhower.
Does Character Matter?
There are many who argue that presidential character is
important, although it is not always clear that one can know a
candidate’s character before the president takes office. Yet
there are those who choose not to focus on political character
and instead look to moral character as a good indicator of
electability. If a president is not trustworthy, it may be
extremely difficult for the president to form working
relationships with members of Congress, and the end result may
be inability to lead.
Ultimately, the issue of character speaks to whether the person
is really fit to be president. Other than a minimum age,
residency, and that one is a natural-born citizen, there are no
formal constitutional requirements for office. In many cases,
voters choose a candidate based on a perception of whether this
person comes across as presidential. Being president, in the
minds of most, may mean acting appropriately, having good
character, being dignified and trustworthy, and to some extent
appearing to be above the political fray.
6.1 Components of the Federal Bureaucracy
The federal bureaucracy is the structure of administrative
agencies and departments in the executive branch that is
responsible for delivering public goods and services. For
instance, the Social Security Administration delivers retirement
funds to older adults. The bureaucracy is also responsible for
implementing laws. While Congress and the president establish
intent to do something by enacting legislation, the bureaucracy
must make it happen. As an example, both houses of Congress
passed the Affordable Care Act in 2010, and the president
enacted it into law by signing the legislation. Yet the

responsibility for implementing the law belongs to the
Department of Health and Human Services (HHS), an executive
branch Cabinet-level department through the delegation of
authority, which was briefly discussed in Chapter 4. Delegation
of authority occurs when Congress grants authority to an
executive branch department or agency for a specific task.
(Authority for this particular law is also delegated to state
governments, as they are responsible for implementing various
features of the law.) The federal bureaucracy is the part of the
government responsible for implementing laws passed by the
president and Congress, and, as appropriate, executive orders
signed by the president and case law as determined by Supreme
Court decisions. The nature and magnitude of the executive
branch’s implementation authority has resulted in a large and
complex bureaucracy that includes Cabinet-level departments
(discussed in Chapter 5) and several other agencies and offices
responsible for implementing the law. The work of the federal
government must be well organized in order to ensure that the
will of the people, as reflected by congressional, presidential,
and judicial actions, is carried out. Yet the magnitude of the
work warrants a complex network of offices and agencies to
fulfill their responsibilities.
Defining Bureaucracy
The term bureaucracy comes from the French term bureau,
meaning department. Today we use the term to mean the
breaking down of administration into departments that have a
specific purpose. The federal bureaucracy is structured to carry
out the law in a politically neutral fashion. A large number of
government employees function outside the political realm and
are not hired or fired based on election results. The purpose of
the bureaucracy is to establish an administrative framework to
implement the decisions made through the political process.
Sociologist Max Weber suggested that a bureaucracy is the
highest form of efficiency.
Successful bureaucracies are often organized according to
principles first articulated by sociologist Max Weber. Weber

(1947) suggested that a bureaucracy was the highest form of
efficient administrative structure in that it was organized to
achieve a set of objectives at the least cost. The characteristics
that Weber associated with bureaucracy are that it is based on
principles of full and official jurisdictional areas and a division
of labor. Bureaucracies are also ordered by rules, laws, or
administrative regulation, which ensure that it will not operate
in an arbitrary manner. The regular activities of the bureaucracy
are distributed in the form of official duties, while the
bureaucracy has the authority to give commands based on rules.
Additionally, a bureaucracy has provisions for the regular and
continuous fulfillment of officials’ stated duties, and only those
possessing generally regulated qualifications are to be
employed.
These principles are found in the modern American
bureaucracy, especially in the requirement that executive branch
functions are based on written documents. Positions are legally
defined, officials normally hold a form of tenure, and the
salaries are based on status, or some type of rank within the
organization. The bureaucracy allows the executive branch to
divide administrative responsibilities based on specialization,
and it allows specialists in particular areas to perform their
functions according to objective criteria. Thus, bureaucrats seek
to accomplish objectives set forth in legislation enacted by
political figures. It is not bureaucrats’ responsibility to get
involved with questions of whether those objectives are
necessarily good, as those are considerations for elected
officials.
Political Appointments Versus Career Civil Service System
The bureaucracy is made up of two distinct components: the
political administration and the civil service system. The
administration refers to the bureaucracy that supports the
president. The civil service system refers to those federal
employees who are professionals hired on the basis of merit.
Whereas the civil service system is viewed as the permanent

government, the political administration is viewed as a
temporary government, because it is mostly replaced when a
new president takes office. Each president’s political
administration is composed of his or her immediate White
House staff, his or her Cabinet, and the political appointees who
staff various agencies and departments. As an example, in the
State Department, there is a secretary of state and several
assistant secretaries. Each assistant secretary is responsible for
a specific policy or programmatic area, such as the assistant
secretary for European affairs and the assistant secretary for
East Asia. Political appointees in the administration also
include the various ambassadors stationed abroad. Each
embassy around the world has an ambassador and several
counselors who are also political appointees. Below the political
appointees are members of the civil service system, and in the
case of the State Department, the civil servants are members of
the Foreign Service corps.
The key differences between political appointees and civil
servants are the method by which they obtain their jobs, the
nature of their loyalties, and the tenure of their offices. Political
appointees are appointed by the president and confirmed by the
Senate. Their loyalty is to the president, who can have them
removed from office. Civil servants are hired by the U.S. Office
of Personnel Management, and they are chosen on the basis of
merit. Individuals going into the civil service often start out in
entry-level positions and may work their way up the
bureaucratic ladder to more senior-level management positions,
which explains why, in part, these persons are often referred to
as career civil servants.
Civil servants are supposed to be loyal to their agencies and
dedicated to the neutral delivery of public goods and services.
Civil servants are governed by the Hatch Act of 1939, which is
a law prohibiting federal employees from participating in
partisan political activity. The Hatch Act was an outgrowth of a
long tradition of civil service reform. Named after Senator Carl
Hatch of New Mexico, it was a specific response to allegations

that employees of the Work Progress Administration, a New
Deal program, were used by Democratic politicians in the 1938
congressional campaign. The Hatch Act specifically prohibits
intimidation or bribery of voters and restricts political campaign
activities by federal employees. Federal employees below the
policymaking level are not permitted to have “any active part”
in a political campaign and are prohibited from using any public
funds for electoral purposes. Additionally, civil servants are
prohibited from promising jobs, promotion, financial assistance,
contracts, or any other benefit as a way to coerce campaign
contributions or political support. In practical terms, this means
that a political administrator may attend a fundraiser for
members of the president’s political party, but a civil servant
may not. While civil servants are permitted to vote, like any
other citizen, they may not campaign for political candidates.
The Hatch Act also prohibits federal employees from being
members of “any political organization which advocates the
overthrow of our constitutional form of government.” This has
been interpreted to preclude membership in the Communist
Party.
Library of Congress
Woodrow Wilson argued that administration should be separate
from political and policy concerns.
Politics Versus Public Administration
The federal bureaucracy is structured on the principle that
politics should not play a role in the execution of government
functions. The reason for the separation is to maintain
accountability, transparency, and neutrality. In the 1880s,
political scientist Woodrow Wilson, who would later become
president, put forth the classical model of public administration.
Proposing a strong executive who would also be accountable,
Wilson argued that public administration should be separate
from political and policy concerns. Rather, public
administration should be concerned solely with the “detailed
and systematic execution of public law” (Wilson, 1887). Law
and policies are made by elected officials, who are held

accountable by voters at the ballot box. If the public is unhappy
with the policy choices made by elected officials, it can always
vote them out of office. The role of the bureaucracy is to
implement those policies. Wilson specifically called for a set of
principles to guide administrators in the efficient performance
of their duties.
Consider for a moment members of Congress who need to raise
money for their reelection. It would not be out of the ordinary
for wealthy contributors to have greater access to these elected
officials and a greater chance of being listened to than would
ordinary voters. But we would not want a civil service system to
give preference to rich people or to Republicans over Democrats
in the delivery of benefits such as Social Security payments.
The point of the separation is to ensure that delivery of public
goods and services will happen on an impartial and equal basis.
Civil service, then, requires an intricate set of procedures and
rules that must be followed so that the delivery of services will,
in fact, be impartial and professional.
6.2 The Rise of the Civil Service System
The modern civil service system is an outgrowth of the
Progressive Era (1890s–1920s), when social and government
reformers sought to deliver governmental services on the basis
of merit. The idea of a neutral, nonpartisan, and impartial civil
service system was revolutionary. Prior to the civil service
system, people obtained government employment through
political connections, also known as the spoils system.
The Spoils System
Under the spoils system, the political party that won office
would be able to staff the government. Newly elected persons
would replace those working for the government with new
employees who were loyal to them. This was, quite literally, a
system of “to the victor go the spoils.” This meant that no one
could be assured of long-term government employment, and
workers were subject to being fired when their patron either left
office or was defeated in an election. Workers did not
necessarily have to be qualified for their jobs; they only needed

to be loyal to the person who hired them. It would not be
uncommon, for instance, for a local postal worker to be
replaced after a presidential election.
President Andrew Jackson first used the spoils system to reward
people who voted for him. Following Jackson’s inauguration as
president in 1829, about 20% of the federal workforce, mostly
in the Post Office, was replaced. Despite attempts by
administration officials to justify personnel changes, it became
evident that the sole criterion for employment was loyalty to
Jackson.
Ironically, the spoils system reflected Jackson’s revolutionary
democratic spirit. Government was supposed to belong to the
people. By that standard, it should be staffed by ordinary
citizens, not technical experts. But the problem with this system
was uneven delivery of services. As an example, a mail carrier
whose loyalty was to Jackson and his Democratic Party might
be less inclined to deliver mail with the same frequency or care
to those areas that supported Jackson’s opponents. Subsequent
presidents continued to use the spoils system to encourage
people to vote for them.
The spoils system was problematic for various other reasons.
One of the legacies of the American Revolution was a deep-
seated distrust of centralized power, which meant that
Americans had a very negative view of government. For more
than a century after the Constitution was ratified, the most
desirable government was the one that governed least. A
government staffed by experts or elites might be unaccountable
to the public. In Europe, it was considered a matter of prestige
to be a civil servant. But in those European societies, one who
served the public did not necessarily need to be accountable for
the simple reason that civil servants had expertise while the
public did not. Jacksonian democracy, by contrast, was built on
the premise that the common man should govern. Moreover, at
the federal level, there was not much for government workers to
do. It was only as governmental operations became more
complex that there would be a greater need for professionalism.

The Good Government Reform Movement
The Good Government Reform movement sprang from the
Progressive Era of the late 19th and early 20th centuries. There
were efforts at the national level to eliminate the spoils system
and replace it with a professional civil service system as early
as 1865.
The reforms that did lead to the modern administrative state
actually began at the local level. In cities such as New York
around the turn of the 20th century, local party leaders would
typically offer patronage to immigrants. They would go to the
docks to greet new arrivals with offers of employment and
assistance to find housing and other needs. Often, the party
leader would own a construction company that held building
contracts with the city.
Meanwhile, these party leaders controlled party nominations,
and they could help guarantee that their people would be elected
by delivering the support and votes of their immigrant
employees. In exchange for jobs, these party leaders would
request that employees support their candidates. Elected city
leaders owed something to these party leaders who put them
there, and they paid that debt with construction contracts.
The spoils system also allowed local party leaders to reward
their loyal followers with jobs in the local bureaucracy. Irish
immigrants and their descendants, for instance, staffed many
police departments. As a result, many elites believed that they
were being displaced. The only way they could see to reclaim
what they considered to be their lost and rightful positions of
employment was to choose employees based on merit. In other
words, by changing the rules of the game, more educated elites
could displace those whose only qualification was their loyalty.
Reformers sought greater efficiency and equity in the delivery
of local governmental services by pushing to require workers to
take and pass qualifying exams.
After President James Garfield was assassinated by a campaign
worker seeking a federal job in exchange for his efforts to get
Garfield elected, Garfield’s successor, President Chester Arthur,

signed a law to eliminate the spoils system.
At the federal level, the impetus for replacing the spoils system
was the 1881 assassination of President James Garfield, who
was shot by a disgruntled campaign worker whose repeated
requests for a job through the spoils system had been rejected.
Garfield’s successor, Chester Arthur, had no interest in
continuing with a system that he thought resulted in the death of
his predecessor, so in 1883 Congress passed, and President
Arthur signed, the Pendleton Civil Service Reform Act.
Sponsored by Senator George Pendleton of Ohio, this act sought
to do away with the spoils system by creating the United States
Civil Service Commission to run the federal civil service. Under
the new law, applicants for certain jobs would be required to
take a civil service exam. Hiring would be based on
qualifications and merit, and elected officials and political
appointees would no longer be able to fire civil servants. This
removed civil servants from the influences of political
patronage and partisan behavior.
Efficiency
A civil service system based on meritocracy was supposed to
achieve efficiency in the delivery of public goods and services,
and with the professionalization of the bureaucracy came the
idea that government should be run according to scientific
principles of management, which apply business techniques to
the public sector and to administrative management. These
principles refer to a division of labor and specialization, or the
effort to identify the tasks necessary to accomplish an objective
and the grouping and coordination of those tasks to maximize
organizational efficiency (see Figure 6.1 to see how this works
in the U.S. government).
Frederick Winslow Taylor is often viewed as the father of
scientific management. Taylor was concerned with how
management could take otherwise lazy workers and use “carrots
and sticks” to turn them into efficient and productive ones. If
good management in private industry could achieve efficiency
in the production and distribution of goods and services in the

marketplace, then good management in government could
achieve efficiency in the delivery of public goods and services.
Efficiency, in simple terms, means producing goods for less
cost. Efficiency in public service delivery could be improved if
those responsible for their delivery were not bogged down in
politics. Efficiency could also be achieved if public goods were
delivered evenly and impartially. Yet efficiency would be
harder to measure in government than in private industry. As an
example, if a major automobile manufacturer introduces a new
car model, its cost effectiveness can be measured by tallying up
the revenues earned through sales and comparing them with the
costs of production. But there would be no way to measure the
cost effectiveness of, for example, maintaining national parks.
The value of people’s enjoyment of the beauty of national parks
may be priceless. Even if there are revenues derived from
entrance fees, they might not exceed the costs of maintaining
the parks, which would be deemed inefficient in the business
world.
A government bureaucracy cannot always apply marketplace
efficiency to the public sector. The role of the bureaucracy is to
serve the public interest. Still, it is not uncommon to criticize
the federal bureaucracy for being inefficient. Because civil
servants are immune from politics and almost impossible to fire,
elected officials cannot easily control the workings of the
government. Similarly, the political appointees who head
agencies, unlike managers in the private sector, have no real
power to remove workers perceived to be inefficient.
Meritocracy and the Division of Labor
American bureaucracy is built on the twin concepts that
individuals should be hired because of their abilities to perform
certain tasks, and that the bureaucracy itself is organized
according to function. In the State Department, for instance,
there is a division for Economic, Energy, and Agricultural
Affairs; a division for Political Affairs; and a division for Arms
Control and International Security Affairs, just to name a few.

The State Department performs many functions. If the same
individuals had to perform them all, they would spread
themselves thin across the department. Division of labor allows
individuals to specialize and become expert in something
specific, allowing for greater efficiency.
Along with this division of labor go two principles that
underpin bureaucracy generally, and American bureaucracy in
particular: chain of command and span of control. Chain of
command refers to the hierarchical nature of the bureaucracy. A
department secretary oversees undersecretaries, who oversee
assistant secretaries, who oversee division supervisors, who
oversee assistant supervisors, who oversee mid-level managers,
who oversee subordinates beneath them, and all the way down
to the lowest level in the organization. The span of control
refers to authority that a particular supervisor might have over
subordinates in several units. When the chain of command and
span of control are put together, the structure of the bureaucracy
resembles a pyramid with the head of a department at the top
and line workers at the bottom. The line workers are those, like
caseworkers in a welfare office or customer service staff in a
Social Security office, who are essentially the public face of the
federal bureaucracy for those who need their services.
6.3 What Do Bureaucrats Do?
In simple terms, bureaucrats take orders from those above them
and give orders to those below in order to administer programs
and deliver public goods and services. In the spirit of separating
public administration from politics, bureaucrats implement
policies and administer programs created by elected public
officials.
Internal Revenue Service (IRS) employees sift through tax
returns at an IRS tax form processing center. As part of the
bureaucracy of the executive branch, the IRS enforces policy
that has been passed by Congress and signed by the president.
Implement Laws, Policies, and Programs
The bureaucracy, as the organizational form of the executive
branch, “executes” laws and policies passed by the legislative

branch. As such, much of the bureaucracy is devoted to
regulating individual and group behavior. If Congress passes
and the president signs a new tax on millionaires, the agency or
department responsible for collecting those taxes is the Internal
Revenue Service (IRS), which is part of the U.S. Treasury
Department. The IRS monitors individuals’ incomes and the
taxes they pay through reporting requirements. Because the IRS
has the authority to enforce the existing federal tax code,
individuals are required to file annual tax returns, and the IRS
can audit those suspected of cheating. If individuals do not
submit the taxes they owe at the end of the year, the IRS can
collect them by putting a lien on an individual’s wages. It can
also enforce collections by initiating judicial proceedings
against those suspected of tax evasion.
All these activities are examples of an agency implementing
laws that Congress passed and that, by extension, reflect the
will of the people. The bureaucracy also includes FBI agents
who investigate crimes and federal prosecutors who suspect
criminals on behalf of the FBI, workers who deliver the mail,
physicians in veterans hospitals, caseworkers who process
applications for public assistance, analysts in the Department of
Labor who report on monthly unemployment figures, and
scientists in the National Institutes of Health (NIH) who look
for cures for cancer or in the National Aeronautics and Space
Administration (NASA) who manage space exploration.
Make Laws Through Rule-Making
In theory, the bureaucracy does not make laws, as only
Congress has the authority to do so. In reality, though, the
bureaucracy makes law through its rule-making function. Once
Congress passes a law, the bureaucracy sets the rules for how
that law will be implemented, in essence filling in the details.
These rules are usually published in the Code of Federal
Regulations (CFR) and may also appear in the Federal Register.
Published rules are considered by the courts to be as legally
binding as statutory law—law made by Congress—provided that
they are a reasonable interpretation of the underlying statute.

The bureaucracy thus establishes a written record of what it
does and makes it publicly available.
Adjudicate Decisions and Disputes
The bureaucracy also exercises a degree of judicial authority
through its administrative adjudication function. When an
agency writes rules for how people can receive benefits, it also
establishes procedures for how benefits can be terminated. The
Administrative Procedures Act of 1946 has adjudicatory
requirements that apply when an agency’s statutes require that
an order—not an agency rule—be issued. The order is “to be
determined on the record after opportunity for an agency
hearing.” The result is that such proceedings are to be
conducted in a fashion similar to a court.
Proceedings are presided over by impartial administrative law
judges who are appointed by the agency with the approval of the
Office of Personnel Management. Administrative law
proceedings include oral hearings and cross-examination of
witnesses and are fully recorded along with documentary
evidence. An administrative law judge makes an “initial
decision” that is final unless it is appealed to the head of the
agency. An agency head can also make a decision after
receiving a recommendation from the administrative law judge.
Still, courts can review the decisions of agencies, but they are
likely to overturn decisions only if they do not conform with the
procedural requirements of the Administrative Procedures Act
and other statutes. Or they may overturn a decision if they find
that an agency’s “action, findings, and conclusions” are not
supported by substantial evidence.
The bureaucracy in effect acts like a court, and what occurs is
an administrative hearing. Suppose, for example, that the
Department of Health and Human Services (HHS) decides to
terminate a recipient’s benefits because that person failed to
abide by the rules. Suppose the specific rule required that the
person report to a work site for a minimum of 20 hours a week,
and he failed to do this. HHS, of course, justifies its actions by
pointing to the rules in the Federal Register. Still, the recipient

is a citizen and has rights, so he appeals the termination of
benefits decision. He presents his case to a panel in HHS that
will hear and adjudicate the appeal. The judicial power of the
bureaucracy is referred to as agency adjudication, and it occurs
when someone has violated agency rules. If the recipient who
loses benefits is not satisfied with the result of the hearing, he
can always appeal the results to an actual court.
6.4 Types of Bureaucratic Departments
The federal bureaucracy is made up of several types of
organizations, and the president, at least at the political level,
makes different types of appointments to each organization.
Most Americans are familiar with the traditional Cabinet
departments such as Justice, Treasury, and State. But there are
also independent agencies, independent regulatory commissions,
and government corporations. Each of these types of
organizations has layers of political appointees and civil
servants.
The Cabinet
The 15 Cabinet departments, listed in Table 6.1, comprise about
60% of the federal workforce. These departments generally fall
into three categories, although some departments could be
classified in more than one category. These categories include
functional, clientele, and geographic. Regardless of type, each
Cabinet department is further divided into various smaller units,
such as bureaus, divisions, or offices. Much of the work gets
done in these smaller units.
Table 6.1: Cabinet departments
Department
Function
Date of creation
Department of State (DOS)
Handles foreign policy
and represents the nation abroad
1789
Department of the Treasury
Manages taxes, revenue

and sometimes broader economic policy
1789
Department of the Interior (DOI)
Maintains national parks and other public lands
(most of the nation’s parks are in the West)
1849
Department of Agriculture (USDA)
Serves the interests of farmers
1862
Department of Justice (DOJ)
Enforces federal law and prosecutes criminal
violations of it
1870
Department of Commerce
Serves the interests of businesses
1903
Department of Labor (DOL)
Helps American workers by improving working
conditions, addressing job training, minimum wage, employmen
t discrimination, and unemployment
insurance
1913
Department of Defense (DOD)
Coordinates the nation’s defense
1947 (The Department of
Defense was originally created as the Department of War in 178
9 and renamed in 1947 as the
Department of Defense.)
Department of Health and Human Services (HHS)
Helps low-income individuals access free or low-
cost health services and affordable housing
1953 (The Department of Health and Human Services was origin
ally the Department of Health
Education and Welfare. The
Department of Education was
created as a separate department in 1979.)

Department of Housing and Urban Development (HUD)
Improves and develops
the nation’s communities and enforces fair housing laws
1965
Department of Transportation (DOT)
Ensures a fast, safe, efficient, accessible, and
convenient transportation system
1966
Department of Energy (DOE)
Advances the national energy security
1977
Department of Education (ED)
Promotes educational quality and equal access
to education
1989
Department of Veterans Affairs (VA)
Administers benefit programs for veterans,
their families, and their survivors
Independent Agencies
An independent agency is a federal body that is independent of
both the president and Congress. Congress creates the agency
and the president appoints people to it, but after that neither
Congress nor the president has much control. That is the idea:
to have an agency that can oversee a specific policy or program
function without being subject to political pressures. At the
same time, independent agencies are subject to oversight, as
they can be called to testify at congressional hearings.
Federal Reserve Chair Janet Yellen was nominated by President
Obama in 2014 for a 4-year term. The Federal Reserve Board
chair serves as part of the president’s administration but makes
decisions independent of executive oversight.
The Federal Reserve Board, or “the Fed,” which regulates banks
and the money supply, is an example of an independent agency.
The president appoints a chair for a period of 4 years, and

people who are known as “governors” (not actual elected state
governors) for 14-year terms. Once they are in place, governors
may be removed by the president for cause. Although Congress
regularly calls the Fed chair to testify, it has no authority over
the agency short of rewriting the legislation that created it in
the first place.
Independent Regulatory Commission
An independent regulatory commission is like an independent
agency with a narrow focus and specific function. Examples
include the Securities and Exchange Commission, which
regulates trading activity on Wall Street; the Federal Elections
Commission, which regulates campaign and election activity;
the Interstate Commerce Commission, which regulates the
movement of goods across state lines; and the Federal
Communications Commission, which regulates interstate and
international radio, television, wire, satellite, and cable
communications as well as telephone companies, including
wireless service providers.
If regulation were handled by Congress, it might not happen at
all, and it certainly would not happen evenly. Likewise, if the
Federal Election Commission were subject to traditional
executive branch control, it might hesitate to investigate illegal
presidential campaign contributions because the recipient of
those contributions might well now be the president overseeing
the commission. Immunity from political pressures and from
arbitrary removal enables an independent regulatory
commission to do its job.
Government Corporations
A government corporation is a legal entity created to exercise
some of the powers of the government. It is either wholly owned
or partially owned by the government and is often structured as
a nonprofit organization. However, it is not entirely part of the
federal bureaucracy. Government corporations are intended to
serve a valued public purpose while maintaining a degree of
independence. An example is the U.S. Postal Service (USPS),
whose mission appears below:

The Postal Service shall have as its basic function the
obligation to provide postal services to bind the Nation together
through the personal, educational, literary, and business
correspondence of the people. It shall provide prompt, reliable,
and efficient services to patrons in all areas and shall render
postal services to all communities.
The USPS is required, by statute, to provide the same services
to all Americans, such as delivering first-class mail at the same
price no matter where they live or the actual cost of delivering
that mail.
Types of Political Appointments
Political appointments often fall into three general categories:
specialists, careerists, and clientelists. The specialist appointee
generally has specific expert knowledge that is critical to
running a functional department. As an example, the State
Department is functional, in that its specific purpose is foreign
policy. However, a secretary of state and his or her assistant
secretaries are likely to be foreign policy experts and are
therefore examples of specialist appointments.
An example of a careerist appointment would be when President
Richard Nixon (center) had William P. Rogers (left) serve as
secretary of state but appointed Henry Kissinger (right) as
national security advisor. His goal was to run foreign policy
from the White House, not the State Department.
Presidents do not always appoint specialists to top positions in
the government. Presidents may appoint careerists, such as
prominent political figures who have served in different
presidential administrations in a variety of capacities. Careerists
bring knowledge of how Washington works and how to work
through the bureaucracy, and they often have connections with
members of Congress. Because the appointees are the ones who
have to represent their agencies and departments before
Congress, their congressional connections are critical,
especially when it comes to requests for funding. An example of
a careerist is Norman Mineta, who served as member of the U.S.

House of Representatives from 1975 to 1995, then secretary of
commerce under President Bill Clinton and later secretary of
transportation under President George W. Bush. Even though
Mineta was a Democrat, President George W. Bush understood
the value of Mineta’s knowledge of Washington politics when
he chose him to serve in his Cabinet.
Sometimes a president appoints a careerist because he or she
would like to have a greater say in a particular policy area. For
instance, careerists are often appointed to be secretary of state
by presidents who consider themselves sufficiently expert in
foreign affairs. A non-expert at the State Department allows a
president to run policy from the White House. This was true in
the early years of the Nixon administration, when William P.
Rogers was secretary of state and Henry Kissinger was national
security advisor. Foreign policy was generally run from the
White House, and the secretary of state was little more than a
figurehead. Later, when Kissinger became secretary of state in
1973, foreign policy was once again made in the State
Department. Although the term was not used then, Kissinger
was in many respects Nixon’s foreign policy czar.
The clientelist is the third type of appointment that presidents
make, usually to agencies or departments that serve a specific
clientele. A clientelist is often appointed because he or she is
believed to satisfy a particular constituency and can bring that
constituency’s support back to the president. An example of this
is the secretary of agriculture. Because the Department of
Agriculture primarily serves the interests of farmers, it makes
sense to appoint an agriculture secretary from those states that
form the farm bloc. Coming from that area, he or she will
understand what farmers want and may be able to deliver the
farmers’ support in the next election.
6.5 Who Controls the Bureaucracy?
The federal bureaucracy is often referred to as the “fourth
branch of government” because it is almost like a branch unto
itself. Most workers in the bureaucracy are civil servants, so it

is very difficult for political leaders to control what they do. In
the private sector, a worker who does not do what the president
of his or her company wants can be fired. That is not the case
with the civil service system, where the president or even his or
her political appointees cannot easily remove a career civil
servant. Civil service workers are protected by civil service
rules, and to remove a civil service employee, even for cause,
requires several steps in a protracted process that guarantees the
employee’s rights to appeal.
Unlike in the spoils system, a new Republican president cannot
order the termination of all employees in the Department of
Health and Human Services because the president thinks they
might have voted for the Democratic opponent in the last
election. Civil servants can be fired for failure to perform their
duties, but the procedures to do so are complex. Employees
facing termination may appeal to the Civil Service Commission.
Still, there are ways to control the bureaucracy, or at least make
it more accountable. Foremost among these are the president’s
ability to control budgets for specific agencies, and Congress’s
ability to hold legislative oversight hearings. Even though it is
immune from traditional political pressure, at the end of the day
the bureaucracy, like any other institution, still needs to
maintain a measure of support from the public.
Presidential Control
Political scientist Francis Rourke (1984) has observed that a key
theme in American politics over the years has been the struggle
for control over national policy between the White House and
the bureaucratic organizations. Rourke has suggested that a
president has three courses of action. First, the president can fill
the top echelon of executive organizations with political
appointees who share his or her values and hope that they will
protect his or her interests. Second, the president can assign
members of the White House staff to monitor the work of
executive agencies. Third, the president can create structures in
the White House that will take the lead in policy areas of
importance to him or her. The use of White House czars reflects

this third course. In the past, however, presidents took one or
more of these courses of action in response to deep
dissatisfaction with bureaucratic performance.
As mentioned in the opening vignette, President Obama began
his presidency by appointing several czars, which signaled that
he would prefer that policy direction come from him and the
White House. President Nixon, in particular, used this approach
when he made all foreign policy through Henry Kissinger and
the National Security Council rather than William P. Rogers and
the State Department.
The president can also control the bureaucracy through the
budgeting process. Although Congress technically appropriates
money and therefore must approve of budgets, as we discussed
in Chapter 2, the president prepares the budgets and submits
them to Congress.
There are three basic budgeting techniques: line-item budgeting,
planning program budgeting, and zero-base budgeting. With
line-item budgeting, money is appropriated for specific items
such as equipment, personnel, and programs. A department that
received $40 billion last year can usually expect the same this
year and perhaps 4% more. If there are to be budget cuts, its
budget will not be cut very much—maybe only by 2–3%. This is
also known as incrementalism, which is the idea that everything
is completed in small steps. The point of line-item budgeting is
that it is predictable, and there is very little concern that a
department or agency will be completely defunded. However,
without such danger, the president does not enjoy the same level
of control that he or she might were he or she able to eliminate
departments or agencies. Moreover, a bureaucracy that can
expect a consistent budget has very little reason to explain itself
and justify how it is spending public monies.
Republican Paul Ryan, House Budget Committee chair,
references President Obama's 2014 fiscal budget proposal. The
president can often use the budget to exert a degree of executive
control over bureaucratic agencies. Representative Ryan has
since become speaker of the House of Representatives.

A president might be able to achieve accountability by forcing
agencies and departments to justify their expenditures based on
the programs that they administer. Planning program budgeting
(PPB) is a technique whereby a budget is organized around
programs rather than items. The idea was first introduced during
President Kennedy’s administration by Defense Secretary
Robert McNamara. A budget would be organized around
specific programs like the North Pacific Fleet, Aircraft Carrier
groups, and Amphibious Landings. The Defense Department
would undertake a cost-benefit analysis to determine whether
benefits of a particular program justified its costs. This
question, of course, is a political one, as benefits are
determined according to whose interests are being served, or in
terms of who is getting what, when, and how. The implication,
however, is that if the benefits cannot be shown to justify the
costs, the entire program can be cut. Politically, this is often
difficult because every program has its own base of support. But
it does force the bureaucracy to be accountable to the political
leadership in the executive branch.
A third type of budgeting technique is known as zero-base
budgeting (ZBB), which was introduced during the Carter
administration. The basic idea is that departments and agencies
should not assume that, just because they had a budget the
previous year, they are necessarily entitled to one now. On the
contrary, they should assume that they have no budget and that
they are preparing one from scratch. They are in effect being
asked to explain to the political leaders what it is they do, why
it is essential that they continue doing it, and just how any
appropriation of public monies will be spent. In practice, those
preparing budgets begin from a certain level of spending,
perhaps around 80% of their previous budget. They then put
together “decision packages” consisting of different ways that
the level of services could be increased and then rank them.
This way, political appointees can establish priorities for
spending increases.
As with the PPB, ZBB requires bureaucrats to be accountable by

engaging in public justification. ZBB similarly assumes that if
the justification is not adequate, the agency or department can
be eliminated. Again, it would be politically difficult to
eliminate a whole unit because agencies and departments
typically have supporters in Congress as well as among a
variety of interest groups. Still, by forcing bureaucrats to jump
through the hoops associated with both ZBB and PPB, the
president is able to exert some control. At the very least, the
president can ensure that an agency or department perceived to
be out of control receives less money.
Management by Objective
Management by objective is the idea that the president and his
or her political appointees can establish objectives for each
program as well as a set of measures to determine whether those
objectives have been met. Agency heads establish a set of
quantified objectives to be achieved in the coming year and then
break down each objective into quarterly targets. This process is
repeated down the chain of command. The goal is to achieve
greater efficiency through clearly stated objectives that are
easily quantified. If everybody is forced to demonstrate that
objectives are being achieved, and how they are being achieved,
there will be greater accountability. Implicit in all this is the
threat that if objectives are not achieved, major changes can be
made, including overhaul of departments, elimination of
programs, and termination of personnel.
Congressional Control
As we mentioned in Chapter 4, Congress holds the executive
branch accountable to the public through legislative oversight
hearings. The bureaucracy cannot function if Congress does not
appropriate money to it. Thus, controlling the bureaucracy
through legislative oversight is a matter of bringing Congress’s
power of the purse to bear. Typically, it is the political
appointees who actually testify before Congress about what
their departments are doing, how they are administering specific
programs, and how public money is being spent. But it is the
career bureaucrat who is often required to prepare the actual

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