Wednesday, February 3, 2010


I've found that one of the hardest things to teach is the idea that executive branch departments and agencies are constitutionally and practically separated from the president -- that they respond to the president, but also to Congress, to interest groups, and to their own bureaucratic impulses.  When I teach Neustadt, students understand right away that the president cannot give orders to Congress or foreign powers and expect them to be followed...but they are quite resistant to the idea that the same goes for the EPA or the Department of Energy.

Or, in this week's big story, the Department of Defense.  DADT repeal may have majority support out there in the country, and Obama wields unusually strong Constitutional powers with respect to the Pentagon (being Commander in Chief is a lot less useful when it comes to Justice or Agriculture).  Still, the way Obama has handled repeal appears to be a perfect example of what Neustadtian persuasion, with the payoff being, first, the hearing yesterday, and then today's perfectly choreographed announcement by Colin Powell.  Here's Andrew Sullivan and one of his readers, summarizing (and here's Mark Kleiman, all over this for some time now -- but he's wrong about Sullivan!).  Time to quote Richard Neustadt, from Presidential Power: 
Not only are these "last" resorts [i.e. governing by command] less than conclusive, but they are also costly.   Even though the order is assured of execution, drastic action rarely comes at bargain rates.  It can be costly to the aims in whose defense it is employed.  It can be costly, also, to objectives far afield.
Obama could have moved quickly to implement DADT repeal, using his Commander in Chief powers to push through statutory DADT.  He probably had the authority to do so. But it would have been costly.  It would have been costly to the rest of his goals for equality in those areas, such as the hate laws extension and the end of the HIV ban (..."in whose defense it is employed").  And it would have increased friction between the president and the Pentagon, probably making it harder to achieve goals such as his preferred Afghanistan policy, and procurement reform.  And defeat on any of these items would have made the president look weak to Washingtonians, hurting him in each of the battles he will have to or will choose to fight (..."far afield"). 

Of course, DADT repeal isn't yet a fact, so we don't yet know whether Obama will emerge victorious on this one or not.  But from what's been reported and from how things look so far, I think Richard Neustadt would be impressed at how the new president has handled this one.


  1. The President may be separated practically from the inner workings of administrative agencies, but constitutionally? I would disagree with that.

    The constitution enumerates three branches of government. Obviously the President can't order the Congress to do anything because they are separate branches. But the EPA is in the same branch as the President. So it's a little counter-intuitive to say that the President can't control what the EPA does.

    And, of course, he CAN control what the EPA does by virtue of his appointment power. Meanwhile, it's no surprise that administrative agencies respond to members of Congress too, considering that they have the power to legislate the agency out of existence.

    Frankly, I don't think Obama's aversion to promulgating rules stems from a lack of power; rather, he wants this change (DADT repeal) to last and he knows that only Congress can make a rule that the next president can't simply roll back.

  2. Andrew,

    Yes, Constitutionally. The president appoints the EPA administrator and other top people there...but only with the advise and consent of the Senate. Congress also writes the bills (which of course the president can sign or veto) that set up the agencies in the first place and give them specific authority -- and also gives them funding for their various tasks. The president can influence what they do (through appointments, and his part of budgeting, and through his general ability to use what Neustadt calls the power of persuasion), but he can't control what they do.

    The Constitution doesn't explicitly say that executive branch agencies and departments are a different "branch" of government from Congress, the courts, and the president, but that's what it actually does. Which is why Neustadt said:

    "The Constitutional Convention of 1787 is supposed to have created a government of 'separated powers.' It did nothing of the sort. Rather, it created a government of separated institutions sharing powers."

  3. Thanks for the response.

    What I'm saying is that it is perfectly rational for someone to look at the Constitution, look at the government we have, and conclude that all executive agencies are under the President's control.

    After all, while the Constitution doesn't contemplate today's vast administrative state, it does say that "The executive power shall be vested in a President of the United States of America." And I just don't think that administrative agencies can be viewed as anything other than integral parts of the executive branch.

    In any case, using your rationale, you could argue that (for example) federal appellate courts are actually not part of the judicial branch but rather part of a different branch, because Congress passed the laws creating such courts, and the President appoints (with advise and consent) the courts' members.


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