Consultation, Cooperation and Delegation: Presidential Power in the Twenty-First Century

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Consultation, Cooperation and Delegation: Presidential Power in the Twenty-First Century
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2007 Stephen Charles Boyle 2


For Helen I would not wish any companion in the world, but you. (The Tempest; Act III, Scene I) 3


ACKNOWLEDGMENTS So many people have been so generous with th eir time, their patience and their intellect as I have prepared this work that it is difficult to kn ow where to start. But start I must, and it must be with Larry Dodd, who saw a potential in my proj ect that I did not initia lly see myself and who allowed me to develop it for my self with careful and attentiv e encouragement throughout. Leann Brown has skillfully mentored me from my very first day at UF and I probably would not have completed the program had it not been for her en couragement and down to earth support. Beth Rosenson has also been a consistent and steadfa st supporter, always quick to respond to my annoying questions with sound and sensible advice. Leslie Anderson joined the party late and, I think, with some trepidation on bot h our parts, but she has been so supportive and timely with her input as to make me feel as if I were the only person plac ing demands upon her time. David Colburn took on the simple nuisance of being the external committee me mber with good humor and good grace and I will be for ever grateful to him for that. My wife, Helen has read and re -read every line of this opus , corrected my grammar, my spelling and my thinking without complaint, and she only fell asleep in the middle of a chapter once. Michael Hoover has been a font of clear headed thinking and go od conversation, although I fear he will be disappointed with the final resu lt; we had an ambition to dispel the ubiquity of Richard Neustadt’s theory of the presidenc y, and in that I have singularly failed. Other people who must be mentioned for thei r support, encouragement and love are my sister Sharon, and my closest friend and inspir ation, Mark Johnson. I have to mention Sammy Barkin, who was always ready to chat and advise. Dick Nort on of Boston University was generous with his advice and he inspired much of the approach which I took to my research and the writing of this work. I must also thank the George H.W. Bush Presidential Library, the 4


Lyndon B. Johnson Presidential Library, and th e Department of Political Science at the University of Florida for their ge nerous funding of my research. Finally, it was my great personal privilege, and the fulfillment of a lifelong dream to speak with John W. Dean, Alexander Butterfield, Ed Meese, Tom Korologus, Bill Casselman, Bob Lipshutz, Arthur Culvahouse and Bill Timmons. Their generosity with their time and knowledge was invaluable to this project. 5


TABLE OF CONTENTS page ACKNOWLEDGMENTS ...............................................................................................................4 LIST OF FIGURES .......................................................................................................................10 1 INTRODUCTION ..................................................................................................................13 The View From the Dressing Room .......................................................................................13 The Essence of Negotiation ....................................................................................................18 Overview of This Work and its Methodology ........................................................................20 2 THE NEUSTADT INHERITANCE .......................................................................................24 Introduction .............................................................................................................................24 Presidential Power : The President Versus the Presidency .....................................................25 The Institutionalized Presidency.............................................................................................33 The Institutionalist Critique of Neustadt .........................................................................36 The Institutional Focus upon Executive Or ders and Presidential Unilateralism .............39 The Institutional Theme ..................................................................................................44 Behaviouralism, Institutionalism and Zero-Sum Determinism ..............................................46 The View From Inside the Black Box ....................................................................................52 A Proposal to Refurbish Behaviouralist Sc holarship for the Twenty-First Century ..............56 3 A TYPOLOGY OF PRESIDENTIAL ACTIVISM ...............................................................59 The Outline Presidency ...........................................................................................................59 Justice Jackson’s Typology ....................................................................................................60 The President’s Scope for Action ...........................................................................................63 The President as Legislative Leader ................................................................................64 Presidential Unilateralism ...............................................................................................66 War Powers and Commander in Chief ............................................................................67 The Typologies Combined ..............................................................................................69 Conclusion ..............................................................................................................................71 4 THE EXCEPTIONAL RICHARD NIXON ...........................................................................73 Introduction .............................................................................................................................73 Nixon and Congress: The Lines of Battle Drawn ...................................................................74 The Ash Council and Federal Government Management Reform ..................................76 The Policy Task Forces ...................................................................................................77 And We Haven’t Even Gotten To Impoundment ............................................................80 War Powers and the Commander in Chief: The “Secret” and “Illegal” Bombing of Cambodia – March 1969 ..............................................................................................82 6


The Exception That Proves the Rule ......................................................................................86 5 THE VIEW FROM THE WHITE HOUSE ............................................................................90 Introduction: The President and the Tools of Bureaucratic Management ..............................90 Tools of the Trade ...................................................................................................................91 The Development of Presidential Power ................................................................................93 Methods of Presidential Unila teralism and the Problem of Concentrating on Executive Orders ..................................................................................................................................95 Presidential Power in the Twilight Zone ................................................................................99 Presidential Power in the Twenty-First Century ..................................................................101 The Limitations of Executive Action ...................................................................................103 Political Limitations ......................................................................................................103 I. Congressional backlash.......................................................................................105 II. Perceptions of weakness....................................................................................109 The Legal Limitations on Executive Unilateral Action ........................................................111 I. The divide between expectation and reality ........................................................111 II. The problem of limited reach ............................................................................113 III. The implied intent of Congress: The constrained court; and the constrained executive? ...........................................................................................................120 IV. The problem of impermanence ........................................................................126 The Significance of Process..................................................................................................127 The Problem of Perspective ..................................................................................................130 Academic and Practitioner Perspectives on Presidential Unilateralism ...............................130 Conclusions ...........................................................................................................................132 6 COOPERATION, CONSULTATION AND DELEGATION: THE NORM OF PRESIDENTIAL/CONGRESSIONAL RELATIONS ........................................................133 Introduction: .........................................................................................................................133 Cooperation, Consultation and Delegation in Five Stages ...................................................134 Stage 1 — Pure Unilateralism .......................................................................................135 Stage 2 — FYI: The President Informs Congress That He Intends to Act Unilaterally ................................................................................................................137 Stage 3 — Congress “Fails” To Act: Th e “Zone of Twilight” and Institutional Deadlock ....................................................................................................................138 Stage 4 — The President Acts Using Powers Delegated By Congress .........................139 Stage 5 — The President and Congress Agree on Policy .............................................141 The Five Stages Applied: Cooperation, Consultation and Delegation in Practice ...............142 Pure Presidential Unilateralism – Pardons by Presidents Jimmy Carter and Gerald Ford ............................................................................................................................142 Information Exchange and Consultation Between the Branches — The China Syndrome ....................................................................................................................145 Congressional Inertia and Impasse : The President’s Helping Hand in CIA Reorganization and the Development of the Internet ................................................147 Congressional Delegatio n to the President ....................................................................155 7


Congressional Delegation — Richard Ni xon and the Economic Stabilization Act 1970............................................................................................................................158 Congressional Delegation — President Ge orge H.W. Bush and the Ending of Sanctions Against South Africa ..........................................................................162 The President and Congress Acting in Concert .............................................................165 Presidential/Congressional consultation, cooperation and delegation — From Roosevelt to Johnson and the deve lopment of Affirmative Action ....................166 Presidential/Congressional consultation, cooperation a nd delegation: John F. Kennedy and open housing.................................................................................172 Presidential/Congressional consultation, cooperation and delegation — Carter, China and the battle for Taiwan ..........................................................................174 Presidential/Congressional consu ltation, cooperation and delegation – President Clinton, Mexico, and the $20 billion back room deal ........................179 Concluding Thoughts ............................................................................................................183 7 PRESIDENTIAL AGENDA SETTING: PRESIDENTIAL/CONGRESSIONAL COOPERATION IN THE LEGISLATIVE ARENA ...........................................................185 Introduction ...........................................................................................................................185 Congressional Reforms and the Going Public Moment .......................................................187 The President, Congress, and the Legislative Process ..........................................................191 Fiscal Policy: Doing the Math Together ...............................................................................196 ERTA, Reconciliation, and the Boll Weevil s.................................................................196 “Read my lips” – No Second Term. ..............................................................................202 An Aside: George H.W. Bush, the FY1991 Budget, and the OMB Side-bar Agreement ................................................................................................................206 Social Policy – The Civil Rights Act 1964 ...........................................................................210 Concluding Thoughts ............................................................................................................217 8 GEORGE W. BUSH: THE COMM ANDER IN CHIEF, AND TEFLON UNILATERALISM ..............................................................................................................220 Introduction ...........................................................................................................................220 The Administration of George W. Bush ...............................................................................222 The Bush-Cheney World View ............................................................................................223 Cheney’s White House ..................................................................................................225 George W. Bush and Congress .............................................................................................228 The Curious Explosion of In terest in Signing Statements ....................................................236 Teflon Unilateralism .............................................................................................................239 Concluding Thoughts: An Unprovable Hypothe sis on the Bush-Cheney Administration ...242 9 CONCLUDING THOUGHTS .............................................................................................247 Full Circle .............................................................................................................................247 “Keep the Cufflinks Flowing” ..............................................................................................249 The Congressional Dimension ..............................................................................................253 Cooperation, Consultation and Delegation – A Reprise.......................................................255 8


APPENDIX EXECUTIVE ORDERS ANALYZED BY CITATION OF CONSTITUTIONAL OR LEGISLATIVE AUTHORITY ............................................................................................258 LIST OF REFERENCES .............................................................................................................260 BIOGRAPHICAL SKETCH .......................................................................................................270 9


LIST OF FIGURES Figure page 1 ..............................62 Presidential and Congressional Distri bution of Power in Four Stages 2 Presidential Activism versus Presidential and Congression al Distribution of Power .......70 10


Abstract of Dissertation Pres ented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy CONSULTATION, COOPERATION AND DELEGATION: PRESIDENTIAL POWER IN TH E TWENTY-FIRST CENTURY By Stephen Charles Boyle May 2007 Chair: Lawrence C. Dodd Major: Political Science This work builds upon work by behaviouralist and institutionalist sc holars who study the U.S. presidency. Behaviouralists, following in the footsteps of Richard Neustadt, see the presidency as an essentially weak institution, dependent upon the qualities of the individual in office and his ability to persua de, or bargain with, Congress in order to advance his policy priorities. Congress must be persuaded by the logi c of the president’s argu ment that the policies that he proposes are for the benefit of the na tion. A president who lack s the qualities necessary to persuade is a president who is likely to fail. Institutionalists see the president possessing numerous advantages in his task of persua ding Congress. These include the institutional infrastructure that has grown up around the pres ident since the New Deal, the ability of the president to set the legislative agenda and to make use of the media to advance his policy priorities, the unilateral powers that he has to issue executive orders, proclamations, executive agreements etc., and to veto, or threaten to veto, Congressional legislation. These advantages, according to institutionalist scholars, make it possible for the president to advance his policy priorities, sometimes in defiance of the expr essed or implied pref erences of Congress. 11


My research, comprising detailed archival research conducted at the National Archives and presidential libraries, supplemen ted with in-depth in terviews with some of the most senior White House advisers of the past thirty year s, reveals a very different dynamic. I have uncovered evidence of extensive consultation and cooperation between the president and Congress in the development of public policy. A dditionally, much presiden tial activity that has hitherto been characterized as unilateral is ac tually based upon powers and authority that has been delegated to the president by Congress. I propose a refurbishment of the behavioura list paradigm, which dominated the study of the presidency for almost forty years befo re institutionalism became prevalent, which acknowledges the cooperation, cons ultation and delegation that take s place between the president and Congress; I argue that the two institutions are separated, as the Framers designed them to be, but that they work together to negotiate public policy outcomes. 12


CHAPTER 1 INTRODUCTION The View From the Dressing Room When I first read Richard Neustadt’s classic work on the nature of the power and authority of the president of the Unite d States it annoyed me. How was it possible to characterize the leader of the free world as weak, even impotent? I was not alone in continuing to believe that, in the model of Abraham Lincoln or Franklin Dela no Roosevelt, the pres ident can somehow right social wrongs, defend the homeland, manage the ec onomy, foster prosperity, protect consumers, save the environment, resolve international disputes , protect us from natural disasters, and keep a sober steady finger on the nuclear button; a lot to expect from one person. Yet the president so often appears to deliver on these and on so many other promises that he makes and that we foist upon him. We take it all for granted because he is the holder of the most powerful public office on earth and that is his job. Neustadt is right, of course. A president cannot make laws, at least not in the all encompassing sense that Congress can. He cannot ra ise taxes, nor can he declare wars. He cannot make treaties, he cannot even appoint his own Cabinet without having th em approved first by the Senate. The Constitution offers little more than an outline of the presidency, saying more about how he should be appointed, paid, and impeached th an it does about what he should do. It uses nebulous phrases like “the Execu tive power” which means more now, but not so much more, than it did in 1789. Nevertheless, with the zeal of the ill informed, I set out determined to show how Neustadt was wrong, that what the president of the United States lacked in Constitutional authority he more than made up for in power a nd influence of varying kinds. I soon discovered that my reservations about Neustadt’s work were shared by others, although not necessarily for the same reasons. With his emphasis on the personal characteristics of the president in office and 13


his power to persuade , Neustadt had become distinctly out of fashion. The new wave of presidential scholarship seeks to gather systematic data and apply explicit methodologies derived, in the main, from the science of economic s in an effort to generate theories of the presidency and not just observations about the president . Hypotheses are being developed and tested using quantitative methods and the scope and content of empirical research is being expanded. The institution of the presidency , rather than the president himself, has become the centre of analysis; its growth, its success in advancing its pol icy priorities, its increasing specialization, all measurab le in some form or another, and so all fodder for the new quantitative approach. Attempts to measure the president’s success are, of course, crucia l to the quantitative analysis of the presidency. If we are to understand presidential power, we need to be able to quantify the presidency’s rate of success; how often do presid ential policy priorities become law? Success, however, is a subjective judgment not easily quantified in zero-sum, winner or loser terms. Scholars have relied upon measuremen ts of the legislative output of Congress and compared them against the stated policy preferen ces of presidents. Where one broadly equals the other, a success is chalked up for the presidency. Having quantif ied success, it becomes possible to explore what influences successful outcomes; a larger or smaller presidential staff, a generalist or more specialized staff, a president popular wi th the public or one who is lagging in the opinion polls and, of course, divided government versus unified government. Success and its causes fill much modern scholarship on the presidency. But in a system of separated powers, even a system of separated institutions sharing powers as Neustadt prefers, succe ss can never be absolute. The president does not expect to have his legislative program enacted in its entirety by Congress, if Congress is minded to pay any atte ntion to the presidency at all. Constitutionally it need only do 14


so if it fears his veto and l acks the necessary cohesion to ove rride it. The president expects debate, demur, defiance and, above all else, negotiati on. It is the argument of this work that, in so many cases, it is only after the negotiation is over that policy will emerge into the legislative process. There scholars can begi n to apply the measurements of success, but how much success is necessary to chalk one up for our man? Does he need to get all he asks for? More than a half? More than a quarter? How do we know what his preference was in the first place? Perhaps he pitched high, hoping to achieve something less. Perhaps he pitched in hope rather than expectation. Perhaps he pitched just to be seen to make the pitch. Political science has not solved this dilemma; we ascribe objectives to the pres ident based upon what he says but, as in any negotiation, we cannot take what th e parties say as a necessarily true indication of what they mean. We risk ascribing a set of objectives to th e president that he has not set for himself. Negotiation is a multi-phase process, not well su ited to quantitative analysis and inclined to take place out of sight. For me, the modern sc holarship seemed to be missing the coach’s talk in the dressing room and was arriving in the stan d some time after the th ird quarter had already begun, ready to report the score at the end of th e game. It was measuring success, but ignoring the process that took place before a bill reached the committees and floors of Congress. Then I read Kenneth Mayer’s With the Stroke of a Pen (1999); Mayer argues that the president is possessed of powerful unilateral au thority, the power to issue ex ecutive orders, memoranda and proclamations and the power to command the federal government. These tools, according to Mayer and others who have followed in his pat h, represent powerful m eans by with which the president can command the political landscape and advance his own policy priorities; even defy the will of Congress. Mayer’s opening example is one I use in this work; President Bill Clinton’s financial bail out of the government of Me xico in 1995 when Congress declined to pass 15


legislation for the same purpose. In popular as well as academic literature this has become the classic example of a president defying the will of Congress and making law on his own by means of his unilateral powers. It is, by many accounts, evidence of an overreaching president, even the renewal of the imperial presidency . Richard Neustadt would argue th at a president who resorts to unilateralism is a president who has failed in the business of persuasion. He would also argue th at a president’s instruction is rarely self-executing an d so powers, be they unilateral, constitutional, or devolved on the president by Congress, are no gua rantee of power. Yet President C linton was able to provide $20 billion in aid to the government of Mexico in the face of tough Congressional opposition and upon a few days notice. No persuasion was apparent ly needed and his instructions were carried out without demur by the executive branch officials who he appoint ed. This account of Clinton’s action is, however, to begin the commentary in th e third quarter. I was interested in what took place before Clinton issued his order, in the dressing room, before the game. This work argues that, by concentrating on outcomes, we miss crucial stages in the development of public policy and in the dynamics of the relationship between the president and Congress. In a very real sense this work is the prequel to the work of modern presidential scholars, such as Kenneth Mayer and George Edwards, who focus upon policy outputs from the president and Congress. (May er 1999; Edwards 1990) It provides the foundation for the measurement of presidential success and failure, for the assessment of presidential influence, and for the president’s relationship with Congress. I will argue that policy making in the American system of government is a collective exercise. It is, as Donald Wolfsenberg er argues, not a linear process, nor is it a formal process: Instead it involves a more circular motion of feedback loops that double back on each other to inform and re-inform policymakers at all stag es of the process. This in turn produces an 16


ever-evolving process of thi nking and rethinking, adjustment s and improvements, based on new information derived from experience and evaluation. (Wolfsenberger 2005, 343-362) I argue that both the president a nd Congress are involved in the evolution of policy in the United States; that policy emerges through a process of cooperation, consul tation and delegation. Presidential policy initiati ves are rarely entirely presidential in origin; public policy has a long gestation and many parents. Idea s about policy are rarely sponta neous or exclusively the product of one mind, or one branch of government. Contrary to previous findings, I will present evidence of cooperation and debate among Congressional leaders and the president that precede the introduction of bills to Congress, that are colle ctive exercises conducted in an atmosphere of competitive cooperation, and that are informed by an acute understanding of what is possible. My story begins in the dressing room, before the teams take the field, and it sets the scene for a better understanding of the findings of those who concentrate upon the end game of policy outcomes and roll-call votes in Congress. Democratic president Bill Clinton ordered $20 billion of economic aid to the government of Mexico in February, 1995. He did so on the advice of his Treasury Se cretary, Robert Rubin. But House Speaker Newt Gingrich and Senate Majority Leader Bob Dole were right along side him when he did it. After weeks of trying to persuade the rank and file members of Congress to support the provision of aid to Me xico Gingrich and Dole were fo rced to admit defeat and look for an alternative solution. The solution was to ha ve the president use his unilateral authority to do what Congress had its mind set against doing; Clinton, Gingri ch and Dole agreed on the problem, agreed on the solution, and the presiden t carried it out. This is not presidential unilateralism, I argue. Rather, it is the president and Congressional leadership working in concert to implement public policy by the most convenient means. It may not happen all of the time, but I will argue in the course of this work that there is clear evidence that it happens enough of the 17


time for us to question the logic of our con centrating upon policy outc omes and trying to determine which end of Pennsylvania Avenue can claim a victory. The Essence of Negotiation What do we mean when we think of negotiatio n? Negotiation is much more that one side saying black and another side sa ying white and them eventually agreeing on some shade of gray. It is not persuading, which implies that the sheer logic of the argument will win on the day. It is more than bargaining which implies trade offs and haggling, a transact ional outcome. Political negotiation is a multi-faceted affair, with numer ous participants operating under a variety of constraints and with differing, often fluid, objectives. It is often hard to predict with any certainty at the outset where the negotiations will lead. Th e participants may not know the true extent of their own parameters for agreement or compromi se until the negotiation is under way. Above all negotiation is about learning; lear ning what the other participants ’ true constraints are and trying to accommodate them within your own objectives and limitations. Political negotiations often lack the natural fault-lines common to their personal and commercial counterparts; sometimes agreement on a matter of public policy is essentia l, the protagonists cannot simply walk away taking their business elsewhere. It is crucial to the understanding of many of the propositions made in this work to have a clear idea of what is meant in this work by negotiation . Negotiation of complex matters of public policy is not a win or lose proposition. It is reaching an understanding of the boundaries that constrain what is possible, then finding a way of meeting the absolute needs of each side while acknowledging scope for compromise on issues that are capable of it. When George W. Bush refers to a “path to citizenship” as part of his proposals to re form immigration law his argument is based upon a sound logic. He sees it as an esse ntial carrot to persuade illegal immigrants to come forward and identify themselves to the United States’ authorities. If all that is on offer to 18


illegal immigrants is the opport unity to pay taxes and come un der the scrutiny of the federal government, it is unlikely that they will see any merit in complying. This logic is of no assistance in persuading or bargaining with members of Congr ess for whom the idea of what they see as an amnesty is utterly unacceptable to their consti tuents. Negotiation is not about criticizing the President because he has proposed an amnesty anymore than it is about criticizing members of Congress for taking careful consideration of the concerns of their electorate. It is about recognizing his reasons for the president’s propos als and attempting to accommodate them in some other way. It is about agreeing on what can be agreed, and tryi ng to understand the other side’s perspective on what is not agreed to se e if there is scope for a mutually acceptable compromise. The status of Illegal immigrants in the United States will have to be addressed at some time. Presently the political cost of doi ng so is outweighed by any benefit to be had. The eventual solution will involve some means by wh ich illegal immigrants currently in the United States will be encouraged to come forward and id entify themselves to the authorities. It may be an amnesty, it may be a massive increase in enforcement. It is likely to be something in between, a compromise borne out of consultatio n followed by the delegation of authority and funding by Congress to the president. That is how the system of American government was designed to work. Neither side, in most negotiations, is in a pos ition to dominate utterly; negotiation that is completely one-sided is no negotiation at all. It is essential to the basic premise of this work that negotiation is an essential element of the rela tionship between the executive and the legislative branch. Negotiation is not borne out of dominance by one side or the othe r, it is borne out of mutual need and codependence. Congress and th e president do not choose to negotiate; why would they if they had sufficient authority to advance their political objectives independently? 19


They negotiate because the Founders designed a system in which se parated institutions negotiate power .1 Overview of This Work and its Methodology This work concentrates upon the modern presidency which, in my personal definition, begins with John F. Kennedy a nd includes George W. Bush. It is developed from my own research conducted during the summer of 2006 at the Kennedy, Johnson, Carter and Bush 41 presidential libraries and at the Nixon Project at the National Archives and Records Administration facility at College Park, Maryland, the cu rrent custodian of the Nixon presidential papers. I also conduc ted interviews or engaged in co rrespondence with a number of former senior White House advisers. The research, and the case studies that it has produced, are not systematically selected. They are the result of a semi-structured quest to find an answer to the puzzle of whether and, if so, to what extent pr esidents cooperated and consulted with Congress, particularly Congressional lead ership, in the formulation, en actment and implementation of public policy. I was interested in policy that wa s implemented by means of both the legislative process in Congress and the presid ent’s unilateral powers. My aim was to collect examples from across presidential administrations and in an asso rtment of policy domains; to build a theory of presidential/Congression al relations based upon cooperation, consultation and delegation. My examples come from the presidencies of John F. Kennedy through George W. Bush and with the occasional side reference to earlier administra tions. The policy domains stretch from social policy in the form of civil righ ts, through economic policy in the form of the budget process, to the conduct of foreign policy and the making of war. I examine presidential activism in the realms of legislative agenda sh aping, presidential unilateralism and the president’s role as 1 Developed from “separated institutions sharing power” in Neustadt, 1990. p. 29 20


Commander in Chief. I believe that what my resear ch lacks in systematic selection, it more than makes up for in breadth and depth. Some of my cases, such as President Nixon’s opening to China and President Clinton’s economic bail-out of Mexico, are widely cons idered to be classic examples of a president acting on his own without reference to Congress; they are tough cases. If it can be shown that such cases exhibit clear evidence of presidential consultation and cooperation with Congress, it must surely ca use us to reexamine our understanding of presidential unilatera l action. I am not trying to provide inco ntrovertible proof of a hypotheses or theory, I am simply trying to raise a questi on mark over some of our common assumptions and modes of operation; to spark a debate about how we quantify pres idential power and influence in the twenty-first century. The first part of this work comprises thr ee chapters beginning w ith chapter two which outlines the two broad theoretical approaches to presidential scholarship that have come to dominate the field for the past forty or more years. The behaviouralist approach stems from Richard Neustadt’s classic work first published in 1960, Presidential Power (Neustadt 1990). New institutionalism, with its roots in rational ch oice theory and the study of economics, is the new paradigm, substantially overturning Neustadt’s concentration upon the personal power of the president and replacing it with br oader theories of the presidency. My own theoretical approach owes more to the behaviouralist paradi gm, but seeks to refurbish it for the modern era and to use it to build theory that is generalisa ble across successive presidential administrations. Chapter three presents an analyt ical typology of presidential activ ism and combines it with a four stage analysis of the distribut ion of power between Congress a nd the president. Chapter four presents a case study of the presidency of Richard Nixon and his relationship with Congress. Nixon is an exceptional president in so many ways and I argue that it is the exceptionalism of his 21


relationship with Congress that defined his admi nistration and underscores the essence of this work; that in the American system of separate d powers, presidents and Congress must consult and cooperate to produce public policy; the consequences of doing otherwise are disastrous. The second part of this work br ings together archiv al research and interviews with former senior White House advisers to consider presiden tial activism in the three key areas of legislative agenda setting, presidential unila teralism, and the president’s role as Commander in Chief. Examples of cooperation and consultation betwee n the president and Congress are given and the significance of Congressional dele gation to the president is co nsidered in depth. While the president’s powers are undoubtedly no guarantee of power, I argue that the powers of Congress are no guarantee of power either. My analysis will show that th e federal government is at its most authoritative when the pr esident and Congress combine th eir powers and negotiate policy outcomes away from the floor of the House or the Senate. I propose a theoretical model, developed from Richard Neustadt ’s separated institutions sharing power, but which becomes separated institutions negotiating outcomes. The third part of this work attempts to draw some conclusions from the research and point out scope for further investigation. In that context, it presents a consideration of the presidency of George W. Bush in so far as currently available material will allow. It asks whether President Bush cooperates with Congress, in the model that I propose. Alternatively, is he more Nixonian, at odds with Congress, and if so what is the likely long term influence of his administration? President Bush, it appears, has sought to expand the power and authority of the presidency to a degree not seen since th e early 1970s. Does this signal th e end of coopera tion between the president and Congress and the be ginning of an era of confrontation similar to that which brought us the failed presidencies of Gerald Ford and Jimmy Carter? Or do es it represent a true 22


and lasting expansion of presiden tial authority and a shift in th e balance of power between the president and Congress? 23


CHAPTER 2 THE NEUSTADT INHERITANCE Introduction Richard Neustadt’s perspective on presiden tial power comes not only from his long and distinguished academic career, but also from his service as a Special Assist ant to the President in the Truman administration and later as an ad hoc adviser to Presidents Kennedy, Johnson and Carter. In his preface to the 1990 edition of Presidential Power Neustadt reflects upon the tumultuous thirty years since he first offered th e proposition that presid ential power is “the power to persuade” (Neustadt 1990, 11). The years have not changed his view; he remains adamant that the authority of the leader of the free world remains extremely limited. He defines persuasion as synonymous with bargaining and power as “ personal influence of an effective sort on governmental action” (Neustadt 1990, ix). Ind eed, Neustadt asserts th at “weakness was the underlying theme of Presidential Power ” and that “this remains my theme” thirty years on (Neustadt 1990). For Neustadt, therefore, power is expressed in highly pe rsonal terms; it is the influence of the president himself upon the thoughts and actions of other individuals (Neustadt 1990, 4).1 Forty years after Presidential Power was first published its influe nce over the field that it had dominated for so long was in decline. Few scholarly enterprises make much headway in modern political science if they are not rigorous ly quantitative and aimed at the development of theoretical understa ndings of the topic under consideration. Thanks to the enduring influence of Neustadt, the study of the presidency yielded to this trend later than most other fields but, with 1 Neustadt states explicitly that the power comes only from the president, not from the institutional infrastructure that surrounds him. He states “Presidential on the title page means nothing but the President. Power means his influence. It helps to get these meanings settled at the start.” Is this a distinction between the power of the president and the power of the institution of the presidency? 24


the vigor of the converted, presiden tial scholarship is now firmly rooted in the broad assumptions of rational choice theory and new institutionalism. According to a retrospective of Presidential Power published in 2000, modern scholars consider th at it “no longer offers a reliable roadmap embodying the consensus among contemporary schol ars.” (Jacobs 2000, 489 ). The systematic analysis of the institutions a nd structures of government has supplanted Neustadt’s emphasis on the “personal basis of power” (Jacobs 2000, 491 ). It may be the case, however, that Neusta dt’s behaviouralism and the quantitative methodology of the institutionalists have more in common than either might be inclined to admit; that is something that will be considered later in this chapter. First I will briefly outline the behaviouralist approach championed by Neustadt, th en consider the institu tionalist alternative, including a detailed consideration of instituti onal criticism of the long dominant behaviouralist paradigm. Finally I will propose my own ideas for a refurbishment of the behaviouralist paradigm to respond the institutionalist criticis m and to present my proposals for a new way of looking at executive/legi slative relations. Presidential Power : The President Vers us the Presidency Presidential power, for Neustadt, is the “power to persuade” (Neustadt 1990, 29 ). That is to say, a president’s ability to advance his own policy priorities is dependent upon his ability to persuade others to carry out hi s wishes and instructions. Power, for Neustadt, “means his [the president’s] influence.” The president cannot make policy on his own – he depends upon Congress to pass laws and the federal bureaucracy to carry them out. Just because he is the titular head of the Executive branch does not mean that the federal bureaucracy will always carry out his instructions. Just because he is elected by a national constituency does not mean that members of Congress will automati cally see the wisdom of his pol icy priorities and make them into law. Even when the president seeks to re ly upon his own inherent constitutional authority, 25


the power to issue executive or ders, memoranda and the like, re quiring action on the part of the federal bureaucracy, he is almost always depende nt upon the willingness and ability of others to do his bidding — his orders are rarely “self-executing”, as Neustadt puts it (Neustadt 1990, 1028). The legal and constitutional authority of the president, which prior to Presidential Power formed the basis of most presidential research, are, in Neustadt’s words “no guarantee of power.” (Neustadt 1990, 10). If, as Neustadt would have it, the presidency is an essentially weak institution, it follows that he has little time fo r the proposition that the president’s unilateral powers, such as executive orders, memoranda, proc lamation and directive, represent a significant tool with which to advance the president’s policy agenda. He concludes th at unilateral executive action is often “a painful last re sort, a forced response to the e xhaustion of all other remedies, suggestive less of mastery than of failure — the failure of attempts to gain an end by softer means” (Neustadt 1990, 24). In Neustadt’s analysis the president lacks the means to ensure the carrying out of the wishes that it expresses th rough its unilateral comm ands; “no orders carry themselves out; self-executed ac tually means executed by others” (Neustadt 1990, 17). That is, they require action, or inaction, on the part of another branch or agency of government in order to have effect. Ultimately, presidential influe nce is crucial to persua de those to whom the president issues his instructions to carry those instructions out. Therefore, while Neustadt counts the president’s formal legal and constitutional po wers as being among the three related sources of presidential influence (the others being the president’s professi onal reputation among his colleagues and his prestige in th e eyes of the public) he sees them as being highly contingent. How much can a president rely upon his formal pow ers? Neustadt answers concisely; “not very often and not very much” (Neustadt 1990, 24). 26


The policy making apparatus of the federal government is, in Neustadt’s analysis, populated with actors who have their own politic al aspirations, their own bases of power, and their own institutional advantag es and disadvantages. He argues that the Founders did not establish a system of separated powers; rather they established a system of “separated institutions sharing powers” (Neustadt 1990, 29). Laws are made in the interface between the executive and legislative branches where the Congress passes bills that are signed into law, or vetoed, by the president or made law if his veto is over ridden. President Dwight Eisenhower was fond of reminding Congress that it could not make law wi thout him, “By the Constitution, I am part of the legislative process”. For the president’s part, his policy priorities requ ire the support of at least some of these actors who must be persuade d that “what the White House wants of them is what they ought to do for their sake and on th eir authority.” (Neustadt 1990, 30). The others, upon whom the president must de pend, have often set up shop for themselves, with conflicting loyalties to their institutions, to their congressi onal overseers and paymas ters, and to their own ambitions and conceptions of how their role ought to be carried out. The institutional environment that faces a presiden t with a policy agenda to promote is a hostile one. The tools that the president has at his di sposal to navigate that envi ronment are few and fleeting. In addition to his own inherent lega l authority, those bargaining adva ntages that come with being the president, Neustadt identifie s two key components that, together , contribute to the president’s ability to influence, or persuade, other actors in the political system; they are his reputation for competence among those in Washington with whom he must do business (whom Neustadt refers to as The Washingtonians ( Neustadt 1990, 50)), and his prestige with the public at large. A competent president who enjoys broad public suppor t is in the best possible position to bargain effectively with those who would compete with hi m for political power. If presidential power is 27


simply the power to persuade others to do what the president asks of them, then presidential aptitude for the game of persuasion inevitably be comes the focus of detailed scholarly attention (Neustadt 1990, 30). The president’s skill in husbanding his reputation and public prestige becomes the key to his success, or otherwise, in advancing his policy preferences. Thus for almost forty years scholars of the presidency sought to understand the individual in office; the president rather than the presidency . In order to understand his suc cesses and failures, they seek to identify his personal idiosyncra sies, his strengths and weaknesses, the quality (or lack thereof). of the people who surround him. A focus upon individuals in office, however, leads inevitably to a preoccupation with what makes individual presiden ts distinct rather than the similarities that different presidential administrations share. This, in turn, leads to an inability to make generalisable theory, a weakne ss which Neustadt later acknow ledged, but regarded as missing the point. Before turning in earnest to th e institutionalist critique of Presidential Power, let us remember the task that Richard Neustadt set hims elf when he originally wrote it. It was written to explore the “power problem of the man on top” (Neustadt 1990, xxi).2 Neustadt identified his task in writing Presidential Power as what a president can do to make his own will fe lt within his own administration; what can he do, as one man among many, to carry his own choices through that maze of personalities and institutions called the government of the Un ited States (Neustadt 1990, xx). Presidential Power was never intended to be an institutio nal analysis of the presidency, although it clearly acknowledges the institu tional architecture that surrounds the president, both within the White House and beyond. Its point is simply that , whatever the trappings of the office, the president is still an individual who, if he is to achieve anything, must mast er the organization that 2 From the Preface to the First Edition published in 1960 and reproduced in the 1990 edition. 28


he heads and use it to project his priorities upon the government as a whole. The chief problem for the president is that, despit e the legion of individuals who wo rk in his name, despite even those handful of Assistants to the President who top out the civil service pay scale and often have long previous political experience with the pres ident, no one can provide him with a “regular, reliable, acceptably neutral source” of informati on on the utility of the institutional arrangements that he inherits or the possibi lities or consequences of change (Neustadt 2000, 465). There is, in short, no reliable and politically neutral institu tional memory in the White House. Nothing, as Neustadt puts it, to act as a substitute for the “extraordinary British institution, Cabinet Office” (Neustadt 2000). While individu als among the president’s advise rs might have served in previous administrations, some holding high office, they come to Neustadt’s conception of the presidency with “partial knowledge and imperfect recollection.” (Neustadt 2000).3 Robert Lipshutz, White House Counsel to President Carter, acknowledged to me that when he arrived at the White House on the day th at the President was sworn in he had little idea how to run a government law office. Lipshutz re lied initially upon the Justice Department to guide him and, as with most of his predecessors and successors; he continued to rely upon them throughout his time in government.4 Usually, Lipshutz recounted, there was no real divergence of opinion between the Justice Department and the White House. However, on the matter of 3 As an example from the administration of President George W. Bush, Vice President Di ck Cheney served as Chief of Staff to President Gerald Ford as did former Secretary of Defense Donald Rumsfeld. Former Chief of Staff Andy Card served as Deputy Chief of Staff to President George H.W. Bush. 4 Bob Lipshutz told me, during my interview with him, how he and other senior members of the new Carter administration came to be stranded on the steps of the Capitol building after the president’s inauguration. One of the party cried “lets get back to the White House, and take over the free world!” They all enthusiastically agreed, and looked around for the transportation that would take them back to work. There was none. They had failed to realize that someone had to organize their transportation, and they ended up having to commandeer a DC police car to take them back along Pennsylvania Avenue and into the White House. (From Author’s telephone interview with Robert Lipshutz, April, 2006). 29


affirmative action, particularly in relation to judicial appointme nts, he described a degree of “tension” between the Carter White House and the Justice Department we were representing the president’s attitude , his intentions, and going out of our way to find minorities and women to put on the federal courts. [Attorney General] Griffin Bell and his folks, particularly Griffin, were of the old school and wanted the most experienced, the best lawyer no matter what. As it turns out, in those days, they were all white males because women and minorities hadn’t been in th e profession to any extent over the years. And so we had a great deal of tension there, and we tried to work it out from case to case. Frequently we did, but we didn’t always and sometimes the president just had to make a decision. 5 Neustadt’s president must, therefore, be se lf reliant. The “institu tionalized presidency”, which Neustadt refers to explicitly to make this point, cannot help him. “Helping a president perform his chores is a far cry from helping hi m see the personal stakes in his own acts of choice.” (Neustadt 1990,128). His advisers, while undoubtedly committed to his cause, cannot be relied upon without reservation. They can, perhaps, be too committed; so committed that they lose sight of the bigger political picture. To some extent that is their job; to be utterly partisan and supportive of their president, but therein li es the potential for downf all. Neustadt wrote approvingly of the multiple and competitive in formation gathering techniques of Franklin Roosevelt (Neustadt 1990, 132). By playing one aide or political contact off against another, asking them for information and pe rspective, often not telling one that others were advising him on the same matter, Roosevelt was able to gather detailed information and different perspectives on a problem which he could then consider in reaching his own decision. Neustadt continues: “Through his long tenure FDR had more grasp of the details that can help a man build power than most Presidents before or e ither President since.” (Neustadt 1990).6 To help himself he must reach out as widely as he can for every scrap of fact, opinion, gossip, bearing on is interests and relationships as presiden t. He must become his own 5 Author’s telephone interview with Robert Lipshutz. May 2006. 6 Originally written in 1960, Neustadt refers to Presidents Truman and Eisenhower as th e two presidents since FDR. 30


director of his own central inte lligence. . . he can never assu me that anyone or any system will supply the bits and pieces he needs most. . . he must assume that much of what he needs will not be volunteered by his official advisers (Neustadt 1990, 129). Richard Nixon, the most reclusive of modern pr esidents, isolated himself from sources of information and different perspectives relying intensely on his Chief of Staff Bob Haldeman. Haldeman’s flaw, as Neustadt sees it, was th at he was “loyal, empa thetic, and ignorant.” (Neustadt 1990, 224). He was not experienced in government and thought that he was protecting his president when, in fact, by contributing to and pandering to his isolationist tendencies, he was sowing the seeds of his master’s destructi on. Nixon biographer Richard Reeves summed up Nixon thus he was always a man alone. A strange man of uncomfortable shyness, who functioned best alone with his thoughts and the yellow legal pa ds he favored, or in set pieces where he literally memorized every word he had to say. Prepared and comfortable, he was a formidable presence, not the cardboar d man many remember. (Reeves 2001, 12). Presidential success, on Neustadt’s terms, ther efore needs to be measured in two stages; presidential control over the institutional m echanisms of the White House and the executive branch and, secondly, the White H ouse’s success in advancing the president’s policy priorities. The outcome, in the form of a successfully impl emented presidential policy priority, is a consequence of this two stage process. No doubt some presidents master one without mastering the other. The reclusive Richard Nixon spent little effort trying to control his White House and left matters substantially in th e hands of his Chief of Staff Bo b Haldeman, a stalwart Nixon aide but one who perhaps falls into the category of being too committed to his boss’s perspective. Yet Nixon succeeded in achieving enactment of substant ial parts of his domes tic policy agenda and made significant progress with his foreign policy priorities. President Jimmy Carter made a hash of running the White House during his first eighteen months in office when he tried to revive the “spokes-of-a-wheel” management structure. De spite a Democratically controlled Congress 31


Carter found himself unable to advance his policy pr iorities and even vetoed legislation that was passed by his own party in Congress. Once Hamilton Jordan was appointed as Chief of Staff in July 1979 Carter’s relations with Congress bega n to improve, but the window of opportunity during the President’s first few months in office had, by then, been lost. Equally, a president who spends little effort on mastering the institutiona l mechanisms of the White House may not always preside over a failing presidency. President Ronald Reagan was famously detached from the day to day management of the White Hous e, relying upon the formidable Troika7 of Jim Baker, Michael Deaver and Ed Meese. Reagan’s policy priorities made spect acular progress, however, during the first year or so of his first term but went badly off track as the Troika began to disperse. If the White House is failing to achieve its policy priorities, we must ask ourselves where the problem lies. Is it a president who has not ma stered control of his White House, or is it a White House institutional structure that is failing to perform. Presidential Power is all about identifying the conditions in which the presiden t can achieve the greatest possible influence on the policy making apparatus. It is about gain ing control of the White House apparatus, recognizing its structural limitations, and compensa ting for them by skillfully maintaining a flow of reliable information. Once control of the White House is achieved, the job becomes one of marshalling the assorted resources that enable the president to advance his policy priorities with Congress, with the federal bureauc racy, and with the electorate. At this point the president’s 7 The Troika was the name that came to be applied to Meese, White House Chief of Staff James Baker III and Deputy Chief of Staff Michael Deaver during the Reagan presidency. The members of the Troika were Reagan’s most senior and influential advisers and are considered to have been responsible for much of the policy development and implementation during Reagan’s first term. 32


legal and constitutional authority, his pub lic prestige and his reputation among the Washingtonians becomes the crucial unit of analysis. Understanding this about Presidential Power makes critique along th e lines that it ignores the increased institutionalization of the White H ouse or that it focuses too closely upon the man in office rather than the instit ution of that he leads, the president rather than the presidency , seem misconceived. It is like criticizing a goldfish b ecause it lacks feathers. I argue that the question we ought to ask ourselves is, can we s till learn anything fr om the study of the president that adds to our more general understanding of the presidency ? The Institutionalized Presidency The 1990s saw a move among scholars to adopt more theoretical approaches to the study of the presidency. Part of this move was in response to a frustration with presidential scholarships’ failure to produce theories that are both parsimonious and generalisable across successive administrations. The president-centered nature of a discipline dominated by Neustadt and the behaviouralist paradigm was blamed. In order to move away from a focus upon individual presidents and to produce more theoretical perspec tives on the presidency, some scholars began to concentrate upon the institu tional development of the presidency; the expansion of presidential responsibilities si nce the New Deal, and th e corresponding expansion in the institutional infrastructure of the pres idency (Moe 1993, 337-387) . Others have more recently begun to revive the study of the legal and constitutional resources that are available to presidents; the veto power, executive orders, executive agreements, proclamations and the various other prerogatives of the Chief Executive; what William Howell has called the president’s “unilate ral powers” (Howell 2003; Mayer 2001; Corwin 1980). Both the institutionalization and the const itutional resource approaches to presidential scholarship claim a common theoretical ancestry in the theory of ra tional choice institutionalism. Presidents seeking 33


to advance their own policy priori ties are, according to the guid ing set of assumptions used by institutionalist scholars, driven to optimize thei r influence over the in stitutions of government responsible for policy making and policy implementa tion. This approach inevitably tends to see policy making as a balance-scale or zero sum game in which a gain in influence by the president is inevitably accompanied by a reverse for the pr esident’s legislative pa rtner, Congress. The institutionalization of the presidency is seen by many scholars as having st ructured and regulated much presidential activity. Institutionalization introduces a degree of consistency to presidential actions and responses as the structures and proced ures that become imbedd ed will tend to deliver a consistent response to similar situations ac ross time. This, in turn, enables scholars to concentrate upon the presidency rather than the president and promotes the emergence of theories about presidential action that can be generalized across administrations. The institutionalized presidency can be seen as having “value and stability”, having “achieved selfmaintenance” and has its own routines, agendas, norms, and ways of coding and interpreting the world (Huntington 1968, 12; Ragsdale and Theis 1997; Moe 1985, 91). Institutional analysis has become key to presidential scholarship in the past decade or so because it provides an answer to critics such as Terry Moe who have argued for more systematic, quantitative, and theory based approaches to the study of the presidency; in sh ort, it enables scholars to study the presidency rather than the president (B urke 1992; Hart 1995; Hult and Wa lcott 1998, 465-487; Ragsdale and Theis 1997, 1280-1318; Walcott and Hult 1995). Those that focus upon the in stitutionalisation of the presidency cast their conclusions in terms of how a greater degree of institutionalisation “increases presidential resources for barg aining.” (Rockman 2000, 173). Matthew Dickinson argues that the growth in White House staff can be better understood as a reaction to an environment where bargaining uncertainty has increased. (Dickinson 2005, 259-288). 34


Those who study the “unilateral powers” of th e president define success in terms of the extent to which the president has achieved hi s policy preferences, or some degree of them, against the prevailing mood of the Congress by m eans of their unilateral powers (Mayer 2001, 34; Howell 2003, 1-8). They present evidence of what they consider to be significant shifts in public policy that the president has achieved, sometimes in stark defiance of the expressed preferences of Congress, more often in circumstances where Congress has found itself unable to respond adequately. An instituti onal rubric has developed which argues that ex ecutive orders permit the president to “unilaterally establis h law.” They enable the president to by-pass “legislative roadblocks” establis hed by Congress. Making policy by executive order is efficient since it does not require the coalit ion building that is necessary for legislation. Executive orders represent “. . . a coping mechanism to meet the constraints and demands placed upon them [presidents] by an uncertain political environment.” (Warber 2006, 1, 14, 19 and 38). Institutionalists go on to point out the relative rarity of any challe nge to such presidential action, still rarer any that lead s to the successful overt urning of the president’ s initiative (Howell 2003). Those who study the constitutional powers of the pres ident, the veto in particular, describe how Congress and the president will influence and be influenced by the knowledge of presidential preference and the prospect for a sustainable presid ential veto (Cameron 2000). Terry Moe alludes to the opportunities that institutionalization affo rds the president to shape political institutions in ways that make them more conducive to the achievement of the president’s political objectives. It makes no sense, Moe argues , for the president to “take structure as a given and plunge into the informal politics of bargaining” (Moe 1993, 366-367). Far better for presidents to make use of “their residual decision rights as chief executive. . . ”; in essence the president’s capacity to act unilaterally. Thus the president is able “to shift the 35


structure of politics for themselves and ev eryone else.” (Moe 1993, 367). Krause and Cohen extend Moe’s analysis to argue th at “institutionalization also in creased presidential resources used to influence administrative and policymaking processes.” (Krause and Cohen 2000, 88). The president’s capacity to act un ilaterally provides him with stra tegic advantages over Congress which has problems of collective act ion and is constrained by the need to follow the legislative process “where strategic majorities may halt progr ess and thwart majority preferences.” (Krause and Cohen 2000, 90). In short, while presidential institutionalizati on has enhanced the president’s capacity to act uni laterally, effective congression al response must be fashioned through a legislative process that is inefficient by design and wh ich requires the active formation of sustainable coalitions on issues that may not be of immediate electoral concern to members. The Institutionalist Critique of Neustadt New institutionalism, as it is applied to the study of the presidency, focuses not upon Neustadt’s personal power and individual ski ll approach, but rather upon the institutional development of the presidency and the president’ s use of his unilateral powers. This, in turn, permits the development of theory which is gene ralisable across time and across administrations. Institutionalism does, however, use Neustadt’s power to persuade paradigm as a point of departure for much of its research program. Attemp ts are made to measure presidential “success” in Congress as a means of determining the pres ident’s effectiveness in advancing his policy priorities; based upon Neustadt’s notion that public prestige is a key dete rminant of presidential bargaining success, scholars try to measure the impact of presidential public approval on policy outcomes and the sources of public prestige; finally attempts are made to measure the relative strength and influence of presidents’ bargaining sk ills in an effort to find the “active ingredient” which can make the difference between success a nd failure. Matthew Dickinson summarizes the progress of the institutio nalist field to date 36


thus, presidency researchers are now relatively confident that presidential influence within Congress is in fact primarily shaped by contextual factors, especially the legislature’s partisan and ideological composition; that a pr esident’s public prestige is largely, but not entirely, determined by forces outside his cont rol; and that prestige exercises at most a marginal impact on legislative outcomes; and, finally, that indi vidual presidential bargaining skills are, in select cases, probably quite critical but that they are difficult to measure in any systematic fashion and are usually swamped by other factors (Dickinson 2003). The implicit criticism of behaviouralism is that, because it focuses upon the attributes of the man in office, it encourages analysis of the president and not the presidency. It therefore fails the objective of modern scholarship which is to produce generalisable th eory. Institutions and political structures, it is argue d, exist across time and their infl uence upon the success or failure of presidential policy initiatives should be capable of quantitative measurement and subsequent theory building. Neustadt’s approach, it is argued, fails to take account of the changes that have taken place in the institutional environment of the presidency; th e development of the institutionalized presidency has occurred since Presidential Power was first published and its later editions do not take sufficient a ccount of such a fundamental change. Charles Cameron argues that the phrase “pre sidential power” misleads us into believing that the capacity to shape polic y outcomes, by which he defines power , is an attribute of the president rather than the product of a strategic interaction or “game.” In the broader context Cameron describes legislative leadership as a “coordination” game during periods of unified government and a “strategic bargaining” ga me during divided govern ment (Cameron 2000).8 Power, for Cameron, is “a causal relationship between preferences and outcomes” (Cameron 2000).9; a statement with which Richard Neus tadt would probably not disagree. 8 For a full description of Cameron’s critique see Shapiro (2000, 47–77). 9 Originally from Nagal (1975). Cited by Cameron (2000). 37


Bert Rockman complains that Neustadt’s focus is upon leadership as distinct from management and argues that “staffing increases pr esidential resources for bargaining” and so a president who fails to lead may still succeed through effective management (Rockman 2000, 159-177). Rene Smith finds that, despite Neustadt’s emphasis upon public prestige, there is no evidence that presidents time their public speeches to try to boost their overall approval ratings (Smith 2000, 78-104). McCarty and Razaghian consider that the personal power appr oach of Neustadt fails to capture the “strategic anticipati on” that president’s a pply in their relations with Congress. In particular presidents may defer controversial appointments or policies until later in their terms, thus creating the illusion of a honeymoon pe riod (McCarty and Razaghian 2000, 339-359). Mark Peterson, in contrast, reaches th e opposite conclusion; that presidents will seldom seek to accommodate anticipated congressional reaction to their policy proposals (Peterson 1990, 46). Peterson argues that Neustadt’s influence over the field of presidential scholarship remains firm to the extent that it remains presidency-cen tered. This, he believes, derives directly from Neustadt’s continued influence (Peterson 1990, 2 and 6). Instead, Peterson proposes a tandem institutions perspective which acknowledges the inev itable involvement of both the executive and legislative branches in the making of public policy which, he argues, “is constructed from a more realistic prescriptive and descriptive appraisal of the symbiotic relationship of the president and Congress in the legislative arena and of the elaborate contex ts in which the institutional interactions are played out.” (Peterson 1990, 2). Ke y to his critique of institutionalist presidencycentered scholarship is the reject ion of the idea that the presiden t and Congress are involved in a zero-sum game in which success from one only comes at the expense of loss for the other.10 10 Peterson measures congressional response to presiden tial policy initiatives across a range of possibilities from congressional inaction or congressional dominance of the ensuing debate, through to presidential dominance or 38


The Institutional Focus upon Executive Or ders and Presidential Unilateralism Quantitative research first requires something to measure, or to quantify. The institutionalisation of the executive branch can be measured by reference to the number of people employed, the numbers of departments and ag encies, the annual budgets, and how these variables change over time. Presidential success can be measured by reference to the out-come of roll-call votes in Congress on matters which the president has, in some form, expressed his preferences. The effort to measure the success of presidential policy making using his unilateral powers has led institutionalist scholars to a detail ed investigation of th e use by presidents of executive orders. Other modes of presidential unilateralism, with the exception of presidential vetoes and documented veto threats, are less susceptible to quantitative analysis for the simple reason that they are not systematically recorded. Executive orders, by contrast, have been numbered sequentially (more or le ss) since 1900 and have been published in the Federal Register since 1936. Organizing executive orde rs issued since the Coolidge administration into those that are policy specific, Ragsdale a nd Theis identify an increased frequency of policy specific executive orders beginning during the first term of Franklin R oosevelt’s presidency (Ragsdale and Theis 1997). By the 1960s around 50% of all ex ecutive orders were po licy specific and the figure has settled at around 60% to 70% ever since. Ragsdale and Thes is observe that “As independent policy makers, presidents have i ssued orders on such matters as banking, civil rights, abortion and the environment. . . polic y autonomy shows how th e presidency attains presidential/ congressional consensus. In between these ex tremes Peterson measures “compromise” by which he means that Congress acts on a presidential initiative but does not enact it fully. The broad extremes are measured using the common approach of adjusted CQ box scores and so seem little different from standard zero-sum approaches to execu tive/legislative relations. The “compromise” variable is arrived at where the legislative history did not suggest organized opposition (See Peterson, 1990, Appendix C for a full discussion of his methodology). The problem remains that Peterson is counting congressional response at a point where a bill is before Congress upon which has decided to vote. This measure cannot catch prior negotiations among Congress and the executive or the extent to which the bill itself has been the product of executive/legislative cooperation. It also cannot catch instances of congressional/presidential cooperation wh ich do not result in a legislative outcome but which, nonetheless, result in the making of law. 39


political value through its power to make deci sions which stand as the law of the land.” (Ragsdale and Theis 1997, 1288-1290). This accord s with recent work by Adam Warber that, through a comprehensive content analysis of exec utive orders issued since 1936, finds that the number of policy significant executive orders ha s remained fairly constant over time (Warber 2006). This finding is an awkward puzzle for the inst itutionalist approach; if executive orders are an efficient and effective means by which the pr esident can advance his policy preferences in defiance of the stated will of Congress, why have presidents not made greater use of them across time? Krause and Cohen have revisited the matter of executive orders on a number of occasions; in 1997 they wrote “the executive order allows pr esidents to act strategi cally, enabling them to pursue policy goals in an efficien t and alternative manner. . . pres idents are strategic actors who will bypass Congress by issuing executive orders. . . ” (Krause and Cohen 1997, 467). They take issue with Ragsdale and Theis’ distinction be tween administrative and policy focused executive orders and argue “we contend th at both policy and administratively focused executive orders afford the president the opportunity to exercise authority (i.e., take action), and, hence, shape public policy through both means.” (Krause and Cohen 2000, 96 note 9). Although Neustadt points out that “powers are no guarantee of power” (Neustadt 1990, 10), Kenneth Mayer makes the case for a deeper analysis of executive orders arguing that “presidents have used executive orders to ma ke momentous policy choices” (Mayer 2001, 4). Mayer predicts a gradual expansion of presidential power over time as part of an on-going struggle with Congress for control of the pol icy process (Mayer 2001, 24). The rational choice origins of Mayer’s research lead him to the assumption that presidents seek to control the policy making process and the institutions that are responsible for the creation and implementation of 40


policy. This struggle to wrest influence over poli cy making away from Congress takes place as a kind of zero-sum or balance scale competition for power in which the president enjoys certain institutional advantages, among them Executiv e unilateral powers, over his congressional adversaries. William Howell focuses upon the president’s unilateral powers arguing that “the president can make all kinds of public policies without the formal consent of Congress” giving the president “the abil ity to set policy unilate rally” (Howell 2003). Howell continues by asserting that “. . . unilateral action is the virtual antith esis of bargaining and pe rsuading” arguing for an extension to Neustadt’s notion that presidential power is simply the power to persuade (Howell 2003, 13-15). An early pioneer of the modern constitutio nal trend, Richard Pious argued that the “fundamental and irreducible core of presidential power” was to be understood in terms of “the constitutional authority that the president asse rts unilaterally” (Pious 1979 , 16-17). Seen as the more effective alternative to th e potentially unreliabl e practice of persuasion, Pious argues that the constitutional – legal authority of the president is the true locus of his power and authority. Citing the excesses of the Imperial Presidency, as practiced by Lyndon Johnson and Richard Nixon, Pious argues that it is the constitutional structure that defines the true scope of presidential power. No president was ever accused of imperialism through persuasion. Phillip Cooper (2002) describes an Executive Bran ch that has become increasingly adept at hiding its true intentions behi nd its more discrete unilateral powers. Presidential memoranda, unlike formal Executive Orders, are not subject to strict requirements as to format and publication and are therefore, C ooper argues, less vulnerable to c ongressional, judi cial, or public scrutiny. Cooper also argues that the use of pres idential memoranda in particular “can present significant political and legal problems, partic ularly if they confus e legal authority for 41


presidential action and appear to hide the true nature and pu rpose of administration policy” (Cooper 2002). Political scientists, constitutional lawyers and others have become concerned with the policy making potential of unilateral executive ac tion over the course of the past decade or so. Deering and Maltzman observe that “presidents have frequently viewed executive orders as a tool that can be used to make substantive ch anges to the policy st atus quo.” (Deering and Maltzman 1999, 767). Terry Moe, in his pol emical article advo cating rational choice institutionalism approaches to the study of the presidency, argues that the president’s formal Constitutional and legal powers are of enormous im portance, “for these powers enable them to make lots of important structural choices on their own without going through the legislative process.” (Moe 1993, 366). Ragsdale and Theis de scribe the way in which the process of institutionalization of the presidency, which th ey argue has taken place over a period since 1924, has resulted in a greate r capacity for the presid ent to act independently of Congress (Ragsdale and Theis 1997, 1288). At this stage it is worth r ecalling the core objection of the behaviouralist school to the efficacy of presidential unilatera lism; executive action is rarely, if ever, self executing. Institutionalist approaches tend to treat the outcome of a presidential unilateral action as a given; if the president utters an instru ction it will be carried out. This is an unspoken assumption that underlies most in stitutionalist scholar ship on presidenti al unilateralism. Institutionalist scholars disagree on the consequences of the institutionalization of the presidency. Does institutionalizat ion provide opportunities for pres idents to act unilaterally or, alternatively, does it constrain the president’s ab ility to advance his policy preferences? Terry Moe subscribes to the opportunity side of the argument; “presidents” Moe argues, “are held responsible by the public for virtually every as pect of national performance” (Moe 1993, 364). 42


Therefore, presidents have been driven to “build an institutional capacity for governance.” The president’s control over the or ganization of the executive branc h, particularly their power to appoint political allies to key administration positions, enables him to create a convivial institutional environment. This, together with the president’s capacity to act unilaterally and Congress’ blunted capacity to respond has created a landscape of opportunity for the president. Representing the alternative perspective, Ragsdale and Theis (1997) argue that the institutionalization of the presid ency actually acts to constrai n the president’s behavior and choice. While acknowledging that expectations for presidential action have expanded since the New Deal, Ragsdale and Theis cont end that the political environmen t is a greater determinant of executive branch institutionalization than presid ential action; “The very political independence of the office rests less on innovations of presid ents than on changing environmental conditions.” (Ragsdale and Theis 1997, 1311). The expectations, to which presiden ts must respond, are driven by forces that are external to the president and their response is conditioned by an institutionalized structure which was not exclusiv ely of the president’s making. This, in Ragsdale and Theis’ analysis, makes for a presidency that is constrained by the inst itutional structure that has grown up around it. In terms of unilateral action, Ra gsdale and Theis (1997) argue that the logical conclusion of the constraint model is that presidents will be driven to react to external forces rather than to seek to advance their own policy priorities. In short, institutionalisation acts to blunt the president’s capacity to advance his policy; he is too busy firefighting issues over which he has limited or no control. To follow th e Ragsdale and Thesis (1997) argument to its logical conclusion would suggest that presidents are seldom able to advance their own policy preferences but there are a great ma ny examples, some cited in Chapter 6 of this work, that show that presidents are active policy makers. 43


Matthew Dickinson (2005) offers the suggestion that differences in the opportunity versus constrained analysis of presidential institutio nalization can be explained by the period of transition from institutionaliz ing to institutionaliz ed . That is, during the period when the presidency is undergoing institut ionalization and change, its res ources remain relatively limited and its ability to respond to ex ternal pressures is not fully developed. Once the process of institutionalization is complete d however, which Dickinson estim ates as having occurred at or about 1969, the presidency’s institutional capacit y is completed and it is able to take full advantage of the range of opportunities availabl e to it (Dickinson 2005). Whatever the outcome of the opportunity versus constrained debate among institutionalists, the br oad sweep of the most recent institutionalist literature on presidential unilateralism stays close to the opportunity side of the divide. I consider it in more detail in the next section. The Institutional Theme The general theme among institutionalist scho lars is, therefore, one of alarm. The institutionalization of the presidency has provided the presiden t with advantages over Congress in the zero-sum struggle for control of the policy making apparatus. A president, who is frustrated by the constraints that he faces in th e legislative arena, can resort to his unilateral powers to advance his policy pr eferences. Unchecked and unbala nced by the legislative and judicial branches, the president has the benefit of institutional advantages in the legislative arena and the capability to pronounce and implement p ublic policy by means of these unilateral powers that were bequeathed him by the Constitutional draftsmen. Those same draftsmen who were at pains to restrain the legislature from encroachme nt in to the prerogatives of the executive also recognized that, in the longer term, an avarici ous executive branch was likely to develop. In Federalist LXX, Alexander Hamilton, writing as P ublius, argues that “Energy in the executive is the leading character in the de finition of good government . . . A feeble executive implies a 44


feeble execution of govern ment” (Kramnick 1987, 402).11 Later, Jefferson wrote to James Madison “The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come.” He continue d, “The tyranny of the executive power will come in its turn, but at a more distant period.”12 For Arthur Schlesinger Jr. (1973), and others, that tyranny arrived in November 1963 with the slaying of John F. Kennedy and the elevati on of Lyndon Johnson to th e presidency; perhaps the most skillful executive fox ever to enter the legislative hen house. It was compounded by the secretive and reclusive pr esidency of Richard Nixon; a president who, in the liberal interpretation of events, used the power of the presidency to undermine congression al priorities through, among other things, the impoundment of congressi onally appropriated funds, and the waging of war in secret against Cambodia and Laos. At the heart of this alarm is the notion that presidents can act alone to implement policy on their own account, assuming a legi slative function that ought prope rly to rest with Congress. Let’s be clear; this is no normative argument based upon wh at might be. The proponents each argue that presidential legislation by means of unchecked unilateralism is rife, is often contrary to congressional preference, and is responsible for shaping significant areas of public policy in line with the president’s, not Congress’, policy preferences. The argument therefore stands or falls on whether the institutionalized presidency has succeeded in dominating Congress and the legislative process and is, in f act, acting unilaterally to implemen t significant aspects of public policy. 11 Original text written in 1788 and reproduced in Kramnick (1987) 12 (accessed November 15, 2006). 45


Behaviouralism, Institutionali sm and Zero-Sum Determinism The struggle for control of the policy making apparatus, to which bot h behaviouralists and institutionalists subscribe to some degree, brings with it an inevita ble focus upon success and failure. The dependent variable for both is presid ential success in achieving legislative priorities in a system in which the presid ent has no direct legisl ative power. For institutionalists the focus is upon the institutional infrastructu re of the presidency and its un ilateral powers; the nature of the game is zero-sum. Presidential success depends upon the ability of the presidency to impose its will upon Congress and presidential success is inevitably paid for with congressional defeat. Neustadt’s approach is more nuanced. He sees the president engaged in a two stage effort; firstly to control the White House and executive branch bureaucracy which he does through the information gathering and “self he lp” principles that he attribut es most closely with Franklin Roosevelt. Secondly, once in command of his ow n domain, the president can seek to bargain with, or persuade, Congress to enact his policy prio rities. At this point the president must rely upon his reputation for competence among the Washingtonians and his prestige with the public at large. The presidency , at this stage, is harnessed to the will of the president and with that combination he is, on Neustadt’s account, at his most persuasive. Neustadt was concerned with the long-game of politics, what he calls “prospectiv e politics”, rather than the zero-sum game of fleeting presidential advantage. Richard Nixon’s impoundment of congr essionally appropriated funds was, as Neustadt acknowledges, a bold and asse rtive act, but at the co st of a congressional backlash which was timed nicely, just as the Wa tergate cover-up conspiracy began to unravel (Neustadt 1990, xi-xii). Impoundment diminished the “power prospects”, not only of Nixon, but of his successors in office who were depriv ed of impoundment authority as a result of congressional irritation (Neustadt 1990). 46


For institutionalists, the institutionalization of the White House and the Executive Office of the President has fundamentally al tered the nature of presidential power since Neustadt wrote in the 1950s. Institutionalization is a process, most accept, that began with Franklin Roosevelt and the dramatic increase in functions and respons ibilities drawn to the federal government by the New Deal. The process was aided and abetted by the Brownlow Committee Report, published in 1937, that declared that the president “needs help.”13 The subsequent estab lishment of the White House Office and the Executive Office of the Presid ent, with a consequential increase in the number of presidential aides and advisers, fundamentally changed the presidency into an institution which has grown steadily in size a nd functional specialization ever since. Now a hierarchical institutional structure has beco me embedded around the presidency and it has resisted all attempts to dismantle it.14 In his 1990 edition of Presidential Power, Neustadt pays scant attention to the process of institutionaliza tion that has overtaken th e presidency since he first wrote it thirty years earlier. This, the institut ionalists argue, renders Ne ustadt’s thesis at best redundant and, at worst, undermini ng presidential scholarship in the modern era. The president is, for the institutionalists, no longer a viable unit of analysis. The presidency has been institutionalized to the point that the individual in office can no longer be distinguished from the institution that he inhabits. 13 The President’s Committee on Administrative Management, headed by Louis Brownlow, reported in 1937. 14 Notably Presidents Ford and Carter tried hardest to return to a spokes-of-thewheel management structure whereby the president sat at th e center of a ring of advisers, aides, cabinet heads and other officials all of whom had direct access to him. Both quickly resu med the pyramid style of management in which a strong and assertive Chief of Staff acted as the president’s gatek eeper filtering the information flow to the president and managing direct access to the president. Some have speculated that President Bill Clinton also tried to move away from the pyramid style of White House organization when he appointed his life long friend and political novice Thomas “Mack” McLarty to the position of White House Chief of Staff. The point being that by appointing a friend who was politically inexperienced to the post would mean that the president would, in effect, act as hi s own Chief of Staff. The experiment lasted a disastrous six months at which time McLarty was promoted to the role of presidential adviser and experienced Washington insider Leon Panetta was brought in as a more trad itional, and powerful, Chief of Staff. 47


White House staff numbered 583 in 1971, up from just 30 or so in midst of the burgeoning responsibilities that ac companied Roosevelt’s New Deal. The number has see-sawed since, tending to increase at the begi nning of a president’s first te rm and declining thereafter (Dickinson 2005). It has tended to settle at a figure of ar ound 450. “Institutionalizing the presidency has had the effect of channeling, structuring, and routiniz ing much presidential behavior” report Krause and Cohe n (2000), but “institutionalizing has also increased presidential resources used to influence administrative a nd policy making processes.” (Krause and Cohen 2000, 88-114). By the time the Nixon administration took office in 1969 it is generally accepted that the presidency had become fully instit utionalized (Ragsdale and Theis 1997; Dickinson 2005). Congressional assertiven ess in the wake of Watergate a nd Vietnam sought to strip power away from the presidency while the internal re organization of Congress meant that the building of coalitions in support of presidential policy pr iorities became, for a tim e, much more difficult (Kernell 1997).15 These developments demanded more of th e institutionalized presidency and so a gradual increase in both the numbers and th e levels of specializ ation among White House staffers has occurred. This has been accomp anied by the development of more and more hierarchical structures as the organization re structures to reflect its increased size and specialization (Dickinson 2005). While Neustadt was outlining a prescription for presidential influence, the institutionalists want to measure the product of that influence; the president’s success in achieving his policy 15 Kernell describes a shift in Congress from institutionalized pluralism to individualized pluralism by which he means that, with the breakdown of the committee system in Congress, presiden ts then had to bargain with many diverse and differently motivated members in order to form a supportive coalition. The committee system had enabled the president to bargain with a few powerful committee chairs and senior members who could be relied upon to shepherd legislation through Congress on the president’s behalf. While undoubtedly true, this phenomenon probably only lasted for a relative short time. As Congress became more and more partisan through the 1980s and 90s, so party leaders assumed much of the authority that had been previously retained by the Committee chairs. For a fuller discussion of this argument see Sinclair (2004, 625–637). 48


priorities The application of rational choice and institutionalization/development theories carry with them the assumption of a struggle for in fluence over the policy making apparatus between Congress and the presidency. The outcome is inev itably success or failure for one side or the other – a zero-sum game. The institutionalization of the presidency provides it with an advantage in the struggle with Congress. That advantage is compounded in the modern era by the growth in size and responsibility of the executive branch as a whole, the foreign policy significance of America’s status as the only superpower and, mo st recently, the war in Iraq and the so-called War on Terror. Each of these phenomena expand s the visibility and reach of the executive branch and the institutionalized presidency which manages it. Primed to seek out conflict, and with a singularly presidency centere d perspective, institutionalist scholars develop score cards of presidential success and failure in the struggl e for policy dominance. These score cards are generally based, in some form or another, on roll -call votes in Congress. The superficiality and generally unsatisfactory nature of this measure is widely acknowledged, even by those who use it, but the quantitative method n eeds an abundance of data and ther e are few other cost effective means of obtaining it. (Light 1999; King and Ragsdale 1988; Peterson 1990; Spitzer 1993; Collier 1997).16 Attention to data also pervades the mo re recent scholarly attention paid to the use by presidents of their power to issue execu tive orders. By cataloging these easily quantified unilateral presidential acts into those which a ppear to have a degree of policy significance, scholars assert that the president is using them to usurp the will of the legislative branch; making law on his own account and infiltrating the legisl ative domain that the founders reserved for Congress (Mayer 2001; Howell 2003; Warber 2006). Mo re grist to the mill of the zero-sum game perspective. 16 Users of such data who acknowledge its limitations include Cronin (1980, 170) and Edwards (1980, 14). 49


The criticisms of rational choice determinis m are nothing new, and institutionalist scholars take great pains to try to overcome them. When it is combined with a presidency centered perspective, however, it misses the key constitu tional dynamic that distin guishes the American system of government. Whether described as sepa ration of powers, checks and balances or, as Neustadt would have it, “separated institutions sharing powers”, focus upon the presidency in isolation ignores the institutional advantages and constitutional pr erogatives of Congress (Neustadt 1990, 29). Mark Peterson states baldly that “the legislative process cannot be understood with reference to only one branch of government.” (Peterson 1990, 7). His tandem institutions perspective fails to live up to the promise of his early rhetoric but the principle he espouses is undoubtedly correct. Legi slating is a game, but it is ra rely a zero-sum game. If we look behind the statistics into th e detail of the legislative sausag e machine, inside the black-box, we see evidence of cooperation, of negotiation, of deals struck by presiden tial aides acting in the president’s name, or occasionally by the presid ent himself, with congressional leadership. The key to these negotiated outcomes is credib ility and power. Credibility comes from a congressional leadership able to deliver their troops through th e lobby in support of legislation that has been hammered out with the president. If the party leadership in Congress cannot regularly guarantee the votes nece ssary to pass laws, then they ha ve nothing of value to negotiate with. On the executive side, the president must have the credibility that comes from the advantages that Neustadt has described for him; his public esteem and his reputation as a dealer among the Washingtonians. But he also needs to be in firm c ontrol of his own side of the street, of the White House and of the wider federal burea ucracy. If the president lacks public support, or cannot deliver the executive bran ch, he has nothing of value with which to negotiate with the leaders of Congress. 50


Power comes from a number of factors and will change in every negotiation. The degree to which congressional leaders and the president have a firm hold on their sources of credibility come first. Congressional leader s with a weak grip on their rank-and-file lack power. A president with limited public support or a weak grip on th e executive branch lacks power. The combination of a popular president, a popular policy, and a disciplined party regime in Congress represents the power of the federal government at its zen ith. A weak president pe ddling an unpopular policy to a divided Congress is its nadir. These extremes will rarely occur, of course; the most common balance of power and credibility will lie so mewhere between these two extremes. Ronald Reagan’s first few months in office saw him at th e peak of his power and influence; firmly in control of the executive branch, al beit by dint of the Troika rather than his own effort, fresh from what he was able to portray as a strong electi on victory, with a newly Republican Senate thanks to his coattails, and with a Democratic House in disarray. The balance of power was in Reagan’s favor and the Economic Recovery and Taxes Act of 1981 was the result. President George W. Bush, in contrast, promoted his strategy to address illegal immigration at a time when his poll ratings were low, and Republicans in Congress had co me to regard him as an electoral lia bility as the 2006 mid-terms approached. A policy flop was the inevitable result. These negotiations take place s ubstantially out of the public gaze. There are no roll-call votes; they only come afterwards. It is theref ore not capable of quantitative measurement. It takes place inside the black-box. Peeking inside the legislative black-box is hard. The case studies utilized by Neustadt to support his barg aining paradigm number just three, each dating from a seven year span between 1951 and 1957. In st atistical terms they are meaningless. No one who has spent time in the archives of the presid ential libraries will have escaped the frustration of incomplete correspondence, multiple items withdrawn, and tantalizing fragments of stories 51


that, if you could only find the rest of it, might just stand conventional theory on its head. Equally, no one who has spent time there will doubt the truth that government in the United States is a collective exercise. The View From Inside the Black Box In 1948 Arthur Schlesinger conduc ted a poll among fifty-five lead ing professors of history that sought to rank presidents ac cording to their greatness. While “greatness” is a subjective and over-used term, the usual suspects tend to top out such polls and Schlesinger’s is no exception; Washington, Lincoln and Franklin Roosevelt all made the list. In 1962 Sc hlesinger’s son, Arthur Jr., discussed a proposal to re prise the poll with then President John F. Kennedy. Kennedy exclaimed, How the hell can you tell? Only the president hi mself can know what his real pressures and real alternatives are. If you don't know that, how can you judge performance? (Schlesinger 1997, 179). The following spring, Kennedy would begin the slow process of building a consensus around a civil rights bill that he planned to introduce to Congress. The bill, that would eventually become the Civil Rights Act of 1964, was fashioned out of “innumerable meetings” involving Attorney General Robert Kennedy, Senate Majority Lead er Mike Mansfield, Senate Majority Whip Hubert Humphrey, Senate Minority Leader Ever it Dirksen and a whole host of other senior Senators and Representatives from both the Demo cratic and Republican sides. The bill, and the President’s message that accompanied it to Congr ess, were each the product of lengthy White House consultation with this bipartisan selection of Senators and Represen tatives. The bill that was eventually produced was comparatively weak, an acknowledgement of the inevitable struggle to pass any form of meaningful civil ri ghts legislation through the Senate at that time, with its dominant cabal of conservative Southern Democrats and its anti-m ajoritarian filibuster. The eventual Act would be stronger, and would pass the Senate in the aftermath of Kennedy’s 52


death and with the combined effort of the White House and the congressional leadership (Humphrey 1997, 77-91). The Civil Rights Act of 1964 was a momentous piece of legislation passed in momentous times; a one-off perhaps? When the warrentless domestic eavesdropping program of Presiden t George W. Bush first came to light in December 2005 it was greete d with the fierce disapproval of congressional Democrats and the more liberal sections of the media. The Democratic minority in the Senate pushed for an investigation of the Bush progr am but by March 2006 the Republican Chair of the Senate Select Committee on Intelligence, Senator Pat Roberts (R-KS), reported that “an accommodation with the White House” had been reached and the Democrats’ proposal was rejected. The “accommodation” turned out to be the establishment of a new sub-committee to oversee the eavesdropping program, a tentative acknowledgement that the President’s program was not unlawful. The Senate committee closed down any prospect of investigation of the program, and effectively supported the President’ s contention that he was acting within the bounds of his Constitutional authority.17 This was clearly a deal wo rked out between the Senate Committee leadership and the White House to he ad off congressional disquiet at the Bush surveillance program. Cooperation, al beit in this instance partisan, took place. A tawdry example of partisan politics? The unusua l coincidence of a Republican Senate choosing to shut down debate on the embarrassing activit ies of a Republican president in a mid-term election year? Perhaps. In January 1995 President Bill Clinton authorized the issue of $20 billion in loan guarantees to support the Mexican government in its efforts to avoid defaulting on loan repayments which were about to become due. Critics argued that this bold show of presidential unilateralism had “unfairly circum vented Congress” which had been considering its own plans 17 Walter Pincus, “Senate Panel Blocks Eavesdropping Probe,” The Washington Post, March 8, 2006. 53


for economic support for Mexico at the time of the President’s action.18 Conversely, Republican House Speaker, Newt Gingrich (R-GA), praised the Democratic President’s “decisiveness” while Senate Majority Leader, Bob Do le (R-KS), spoke out in suppo rt of the President’s action.19 In fact Dole and Gingrich had been trying to push legislation to suppor t the Mexican economy through Congress for some weeks but were frustr ated by an unlikely coalition of freshmen Republicans new to Congress since the 1994 Re publican landslide el ection victory and congressional Democrats who used the issue as a platform to promote their opposition to NAFTA. With repayment deadlines looming, and le gislation bottled up in the House and Senate, Gingrich and Dole called the President to warn him that they were unable to deliver legislation in time. Clinton’s Treasury Secretary Robert Rubi n came up with the plan that would allow the President to provide the economic assistance on his own authority. The plan was discussed with the congressional leadership and im plemented with their support. Cooperation and negotiation between congressional leadership and the White House aimed at circumventing opposition to a policy am ong rank and file members of Congress can be expected to be a rare occurrenc e; rarer still between a Republican led Congress and a Democratic president. Perhaps unique in circumstances where one party has just swept the other from control of both Houses of Congress for the first time in over forty years.20 Yet this example surely cannot be explained away as partisan support for an incumbent president or th e coalescence of consensus around an issue of profoundly important so cial policy. This is the raw stuff of politics, where the White House and congressional leadership saw a need for action that was not shared 18 ___, “Hill Critics Assail Clinton Initiative to Bolster Mexico's Economy,” The Washington Post, February 2nd 1996 19 Ibid. 20 In the mid-term elections of November 1994 the Republicans had gained 54 House seats and 8 Senate seats to take overall control of both Houses for the first time since 1952. 54


by the majority of members of Congress. Such was the conviction of th e Republican leadership that the action was correct, howev er, that they agreed upon a stra tegy that would be implemented by a Democratic president on his own authority. Then they supported him publicly and vocally in the inevitable subsequent uproar. Congressional leadership and the president consulted, cooperated, and acted in support of one another to implement unpopul ar policy that they saw as essential for the good of the United States. The federal budget process is su rely the clearest manifestation of my point. Each year the president issues his budget proposals to Congre ss, as Congress has required him to do since 1921.21 Each year rounds of negotiations ensue be tween congressional over sight and budgetary committees, individual departments and agencies of the federal government. At the macro level of fiscal policy, deficit management and overall government spending ta rgets, the White House and congressional leadership develop the br oad sweep of fiscal policy in negotiation. Occasionally negotiations will st all, as happened in the exam ple of the 1991 budget process described later in this work. Sometimes the two sides will engage in spectacular brinksmanship such as resulted in the thr ee federal government shut downs under President Reagan, one under President George H.W. Bush, and two under Presiden t Clinton. Eventually, al l sides agree, or at least agree to defer the more intr actable issues to later years, a federal budget is settled, and the business of government goes on for another year . Budget policy is at the heart of modern governance and issues of public policy. Congress, has the power of the purse, but that does not enable it to impose its budgeta ry will upon a reluctant executiv e. The federal budget is the product of negotiation; and no roll -call vote will be had until the details of that negotiation are ironed out. 21 The Budget and Accounting Act 1921 55


A Proposal to Refurbish Behaviouralist Scholarship for the Twenty-First Century The examples given here are intended to support my hypothesis that consultation, cooperation and negotiation between congressional lead ership and the White House is more prevalent, more far reaching, and more significa nt to the development of public policy than either the behaviouralist or inst itutionalist appr oaches to the study of th e presidency allow. The institutionalist approach can provide us with a valuable broad brush understanding of executive/legislative relations, but it cannot qua ntify negotiated outcomes. Its emphasis is upon winners and losers in a zero-sum environment a nd so denies the very possibility of negotiation. Mark Peterson’s tandem institutions approach comes closest to an acceptance of mutual dependence between Congress and the president but he, too, measures outcomes by reference to roll-call votes which occur afte r much of the negotiation is done and which, if the negotiations turn out something other than a bill before Congress, will never feature in his analysis. By measuring congressional responses to presidential statements of preference, analysis of roll-call voting captures a snap-shot in time at an arbitr ary stage in an on-going pr ocess, and misses much of that process entirely as it occurs inside the black box. Neustadt’s description of the president’s power being the “power to persuade” is, I will argue in this work, altogether too one-sided to describe th e modern executive/legislative relationship in American government. Persuasion implies a one sided dynamic; the presidential persuader trying to turn the opi nion of the skeptical member of Congress. The power is all on one side, that of the member of Congress. The president can only invoke the strength and logic of his argument, he has no other authority. The de scription of “separated institutions sharing power” is to miss the negotiating dynamic that produces so much of modern public policy. Separated institutions negotiating outcomes might be more apt, and the power to persuade has surely become the authority to negotiate . In updating Neustadt’s conception of presidential 56


power to have greater relevance at the beginning of the twenty-fir st century, it is essential to acknowledge the growth of the pres idency into an institution a nd to seek out understandings of presidential power that are not ro oted in the particular circumstan ces of an individual president. Equally, it is essential to acknowledge the role of Congr ess in the legislativ e process, something that Neustadt clearly emphasizes, but which pr esidency centered institutionalist approaches sometimes tend to forget. Certainly the power and in fluence of the presidency has increased as it has developed into the large institution that it is today. But Congress has expanded its power and authority too. The longer reach of the federal go vernment has created op portunities and spheres of influence for Congress in precisely the same way that it has for the president. Members of Congress have extensive staffs and access to sophisti cated media outlets just as the president has. Congress has, in a sense, institutionalized alongside the presidency. Its members have professionalized, it has reshaped its power structures, and it has developed sophisticated oversight capabilities to keep check on the executive branch. It is my contention that Neustadt’s conception of presidential power, suitably update d, offers the best means of achieving a comprehensive understanding of the negotiation dynamic that I believe leads to the development of much public policy in the United States. It need not be a-theoretical and bound to the understanding of individual presidents, as its cri tics charge. George Edwards sums up Neustadt’s objective in writing Presidential Power nicely thus: “Neustadt. . . is less interested in what causes something to happen in one instance than in what affects the pr obabilities of something happening in every instance” (Edwards 2000, 11). In my analysis, negotiation between Congress and the president in the development of public policy is probable in a significant number of circumstances. We cannot look inside every black box; even if we could we would be frustrated by incomplete records, by the inaccurate recoll ections of those who were there, and by the 57


impossibility of deciding who got more of what they were looking for. We can, however, build a collection of cases that begin to show inter-bra nch negotiation as a sign ificant factor in the development of some ma tters of public policy. The examples I give here, and later in th is work, show public policy emerging from a negotiation, freely entered into, be tween congressional leadership and the president, sometimes personally, sometimes in the form of the most senior White House staff. It is surely clear why the president must negotiate; if he wishes to advance his policy priorities in the form of legislation, he has no alternative but to go to Congress and make his case. He may be able to make some progress, as the recent institutionalist scholarsh ip has inferred, using his unilateral powers of executive order and the like; that is something I w ill consider in more detail later in this work. Ultimately, however, if he is to realize the fullness of his policy ambitions, he must rely upon Congress to fashion laws according to his preference, or according to the best deal he can make at the time. Why, however, should Congress nego tiate? It has the power to make laws, the authority to tax and spend, and the capacity to oversee the activiti es of the executive branch of government. Fascinating though this question is, I must first make the case that Congress does negotiate. That is the purpose of the next part of this work. 58


CHAPTER 3 A TYPOLOGY OF PRESIDENTIAL ACTIVISM The Outline Presidency The Constitution of the United States offers an outline of presidential authority but lacks “really useful and unambiguous authority applicable to the concrete proble ms of executive power as they actually present themselves.”1 This outline of the execu tive branch, provided by the Constitution, would come to be filled in by the earliest holders of the office who, coincidentally, were precisely the men who were responsible for the sketchy nature of the constitutional design in the first place.2 The Founders’ guidance, in relation to the authority, power, and influence of the executive branch is to be found, not in the co nstitution itself, but in they way that those who drafted and negotiated the constitution develope d the office once it came into their hands. As Justice Jackson points out in hi s classic Concurring Opinion from the Youngstown steel seizure case, “just what our forefathers. . . would have envisioned had they foreseen modern conditions, must be divined from materials as enigmatic as the dreams Jacob was called upon to interpret for the Pharaoh.”3 Imprecision provides scope for flexib ility, as the Founders well understood, and the development of the presidency has continue d for two centuries and more with many differing opinions, advanced by the holders of the office and their critics, on the form that the presidency should take and the powers that are, or are not, inherent to it. Presidential activis m in government developed over the course of the twentieth cen tury to reach the stage described by Richard Neustadt and oft repeated since; the modern president is expected to be able to do something 1 Justice Jackson. Youngstown Sheet & Tube Co. v. Sawyer . 1952. 343 U.S. 579. Hereinafter referred to as Youngstown. 2 Of the first five presidents of the United States, Washi ngton, Adams, Jefferson, Madison and Munroe, all carry the mantle of “Founding Father.” All were involved, to a greater or lesser degree, in the development of the Constitution, two signed the Declaration of Independ ence, three attended the Constitutional Convention in Philadelphia in 1789, and two signed the new Constitution. 3 Youngstown 59


about everything. Indeed presiden tial scholarship dating from Neustadt to the present day, including both the behaviouralist and institutionalist approaches has offered a prescription for the enhancement of presidential authority. How should the president seek to advance his policy priorities? He should bargain and persuade, and he should institutionalize, the better to give him the means to bargain and persuade. He shoul d employ his unilateral powers in order to circumvent an obstinate or becalmed Congress. He should take his message to the people directly, or go public , the better to infl uence Congress, albeit at the margins. Justice Jackson, in the Youngstown case, offers what I would argue is the best, or at the very least is a workable and br oadly consensual, typology of pres idential authority. I propose to begin with Justice Jackson’s typology, then deve lop it to reflect to modes of presidential operation that are the su bject of this work. Justice Jackson’s Typology Justice Jackson breaks down presidential authority into three distinct areas; first, when the president acts in accordance with authority dele gated to him by Congress; secondly, where the president acts in the ab sence of a Congressional grant or deni al of authority; and third, where the president acts in defiance of the expressed or implied will of Congress. For Justice Jackson, a president acting on authority direc tly delegated to him by Congress is at the peak of his power, for he enjoys not only the delegate d authority of Congress, but all of the inherent authority that he holds as president as well. If his action, in these circumstances , is unlawful, it means that the entire federal government lacks the power to undertake such action. A president acting in absence of Congressional authoriz ation, or where Congress has not uttered its opinion, is relying entirely upon his own Constitutional authority. This , Justice Jackson describes as the “zone of twilight” where Congress and the president may have concurrent authority or where jurisdiction is uncertain. In the zone of twilight, he w ho acts first has the a dvantage and, given the 60


deliberative imperative of Congre ss, the president is well equipp ed to act promptly and on his own authority; Jackson describes the nature of pr esidential power in the zone of twilight thus: “Congressional inertia, indifferen ce or quiescence may sometimes, at least, as a practical matter enable, if not invite, measures on independent presidential authority.”4 Finally, a president acting in defiance of the expressed or implied will of Congress is at his weakest. He must rely only upon his own constitutional authority and his actions may be undone by Congress or the Courts. I would add a fourth category of presidential action to Justice Jackson’s list; a president acting in consultation and coope ration with Congress. At firs t blush, this may be simply understood as an example of Justice Jackson’s first category, that of a president acting on delegated Congressional authorit y. I argue, however, that it goes beyond a simple Congressional delegation, in which case the president’s power is only as strong as Congress has the power to devolve, towards a combination of the discrete powers of the presiden t and Congress combined. The president and Congress acti ng in concert must surely represent the most powerful combination; a homologation of the legislative an d executive authority described by the Framers in the Constitution. The doctrine of separation of powers certainly does not deny the possibility of executive/legislative c ooperation. Justice Jackson ag ain describes it best the actual art of governing unde r our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the di spersed powers into a workable government. It enjoins upon its br anches separateness but interdependence, autonomy but reciprocity. Presidential power s are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.5 4 Youngstown 5 Ibid 61


The conjunction of presidential and Congressional powers is, of course, the subject of this work. I argue that the federal government is at its most powerful when Congress and the president combine their constitutional authority and work to gether to a common purpose. We might think of presidential authority in the following terms: Congress & President Cooperate Congress Delegates Congress Proscribes Zone of Twilig ht Presidential Power Congressional Power Figure 3-1. Presidential and Congressional Distribution of Power in Four Stages If Congress and the president can agree upon a co mmon goal and strategy to achieve it they are each at their most powerful. They combine the constitutional powers that the Founders were so anxious to be separated; they negotiate outcomes on matters of public policy; they “integrate their dispersed powers into a workable government.” Where Congress delegate s, it enhances the president’s power and, if done with care, wi ll not diminish its own (McCubbins 1990, 133-153). Where Congress proscribes a president from acti on it limits the president’s power and maximizes its own authority. In the “zone of twilight” nothing can be ce rtain; to act in reliance upon 62


uncertainty is to gamble upon the outcome. In mode rn politics the stakes will usually be too high to contemplate such reliance. The President’s Scope for Action Presidents can influence policy in a number of ways. Firstly, they can set the legislative agenda with Congress by advocati ng their own policy priorities in the form of bills submitted to Congress, calls for legislative act ion on specific matters, or by rais ing the profile of particular issues in public by means of what President Teddy Roosevelt christened the “bully pulpit.”6 Legislative leadership is something that we have come to expect from presidents, and something upon which Congress has come to rely heavily (R ossiter 1980). Secondly, presidents can act independently of Congress using their unilateral powers of executive order, directives, memoranda, etc. Although these are ordinarily thought of as substantially administrative in effect, institutionalist scholars have recently made the case that they are regularly used by presidents to advance th eir own policy priorities in an effec tive manner. Finally, presidents have an inherent power as Commander in Chief of the ar med forces. The extent of this power has been much debated since President Harry Truman em barked upon the Korean “police action” in 1950 (Fisher 2004, 687-702). However the present war in Iraq and President George W. Bush’s assertion of executive authority, amongst othe r things, to eavesdrop on domestic telephone conversations as part of the War on Terror indi cate that spasmodic Congr essional attempts to contain the president’s war power s have done little to quell the debate. The authority of the Commander in Chief, and the president’s domin ant role in the formulation and conduct of foreign policy give him the opportunity to advance hi s policy priorities in fo reign affairs which is 6 This term arises from President Theodore Roosevelt's re ferring to the White House as a "bully pulpit," meaning a terrific platform from which to persuasi vely advocate an agenda. President Roosevelt was known to use the word "bully" as an adjective meaning superb or wonderful. It bears no relation to todays usage meaning one who coerces through fear. See also Edwards (2006). 63


not matched in the domestic arena. Aaron Wildavsky argued in 1966 that there are two presidencies; one that deals with domestic affairs and another much more successful one that deals with foreign policy. It was Wildavsky’s contention that “since World War II presidents have had much greater success in controlling the nation’s defens e and foreign policies than in dominating its domestic policies” (Wildavs ky 1966, 7). Circumstances have changed considerably since 1966, and Wild avsky’s proposition has been th e subject of periodic revision and reevaluation, but continues to have some force today if for no other reason than, as President John F. Kennedy pithily observed, “Domestic polic y can only defeat us; foreign policy can kill us.”7 Considering each of these three instances of pr esidential activism in turn, it may be helpful to hold them up against the typol ogy of presidential versus Congr essional authority discussed earlier in this chapter. The President as Legislative Leader There can be no doubt that the modern Congress l ooks to the president to be the legislative leader. This is, in essence, a delegation of an elem ent of Congress’ responsibility as the branch of government charged with making law, but it is very far from an abdication of Congressional responsibility. The Constitution’s requirement that the president report “from time to time” to Congress on the State of the Union has become a ritualized annual event in which the president presents his shopping list of le gislative ideas. In essence pr esidents, beginning with Teddy Roosevelt and Woodrow W ilson, have treated the duty to deliver a report to Congress as a power to announce their own legislativ e priorities; and Congress ha s gone right along with them 7 John F. Kennedy quoted in Schlesinger (1973, 377). 64


(Corwin 1957).8 Leadership was not something that the Founders provided for in the Constitution; they focused their attention upon crippling the legislative branch, by making it bicameral and carving out different constituen cies and different terms for Senators and Representatives, in order to avoid it domina ting the rest of the fe deral government. Their obsession with the balance of power between C ongress and the executive continues to inform much of our understanding of that relationship today. Political science has spilled much ink proposing the means of strong pres idential leadership in a system of separated powers. The modern Congress has so organized itself as to require presidential legisl ative leadership, but it has not abdicated its legislative responsibility. Legislative entrepreneurship remains active in both the House and the Senate and policies proposed by the president often originated in Congress itself or in the wider society. During my research at the archives of President George H.W. Bush I saw clear evidence that the pres ident’s education and healthcare policies were formulated through a process of gathering a nd assessing proposals for reform developed by Congress, by assorted interest groups, think ta nks, public bodies and others, and melding them into a package that the President ultimately pres ented as his own. I will consider this process in greater detail later in this work, but Bush’s search for policy is by no means unique. Congress is, by design, a heterogene ous body; it is representative and as such is subject to the myriad opinions, interests, perspectives, and prejudices that abound in the society that it represents. This, combined with its complex deliberative dynamics and power structures, makes it almost impossible for Congress to produce so und public policy on its own (Arnold and Roos 1974, 410-429).9 The president represents a focal point while Congress “pr ovides heterogeneous 8 In particular chapter 7. 9 For a fuller discussion of this point, and the origin of these ideas, I recommend this excellent and much overlooked article. 65


representation.” Both are essent ial to the development of sound public policy (Arnold and Roos 1974). If legislative leadership has been delegated to the president by Congre ss, it follows that a president with ambition to see his policy proposals made into law will develop the means to promote his preferences with lawmakers. Behavi ouralist scholars, in the Neustadt tradition, see this as a process of persuasion wh ile institutionalists argue that the greater institutionalization of the presidency has provided it with the means to better promote its policy priorities in Congress. Institutionalists also allow the prospect that the president can legislate on his own, using his unilateral powers, to advance his po licy priorities against a reluctan t or recalcitrant Congress. My analysis suggests, however, that presidents and Congress will often consu lt and cooperate in the formulation and enactment of public policy. I argue in this work that the legislative leadership that has devolved to the president demonstrates Congr essional delegation and executive/congressional consulta tion and cooperation, two of the four elements of my typology of the distribution of presidential a nd Congressional power described above. Presidential Unilateralism Institutionalist scholars’ detail ed focus upon presidential unilat eralism is relatively recent, beginning with Kenneth Mayer’s With The Stroke of a Pen, first published in 1999. He has been followed by William Howell (2003) and Adam Warb er (2006). Each, in his own somewhat distinct way, focuses upon the presidents’ use of executive orders to advance their policy preferences independently of Congre ss; they argue that the president is, in essence, legislating on his own account. 66


This might, on first encounter, seem to be po ssible only in what Ju stice Jackson termed “the zone of twilight”10; the indistinct boundary between exec utive and legislative power where some powers might be concurrent and where he who acts first has the lawmaking advantage. Where else could the president su ccessfully usurp the legislative authority of Congress? I argue in the course of this work, however, that pr esidential unilateralism ta kes place in the wider realms of Congressional dele gation and executive/legislativ e consultation and cooperation. Examples will be given of both, but it is worth nothi ng at this stage that my research reveals that greater than eighty-two percent of all executive orders issued by presidents since 1945 have relied upon authority delegated to the president by Congress.11 Congressional delegation is, therefore, the overwhelming motivat or of presidential unilateralism and it is a distinction that the work to date on this topic fails to take into accoun t. If a president is to be accused of unilaterally making legislation and circumventing the will of Congress through the use of such devices as executive orders, as this branch of the institutionalist literature contends, it is surely essential to consider where the president’s authority to make such laws comes from. If the power is devolved by Congress, is it really correct to characterize it as presidential unilateralism? I would argue not. War Powers and Commander in Chief Congress, having substantially abandoned th e concept of declaring war before the deployment of American forces into combat, has ced ed authority in times of international crisis to the president. Even Congress’ fitful attempts to re-exert its author ity over the president’s power to make war has only served to enhance the president’s own authority at the expense of Congress. The War Powers Resolution, passed by in Congress in 1973 in the aftermath of the 10 Youngstown 11 See Appendix A for a full account of this research. 67


war in Vietnam, gave the president a power that he did not previously enjoy; namely, the ability to deploy troops without referen ce to Congress, albeit for a lim ited period of time (Fisher 2004). President Richard Nixon vetoed the bill, his veto being subsequently overridden, but each president since Nixon has questioned the cons titutionality of the law while, in the main, complying with its provisions. Individual members of Congress have sought to have the Courts restrain presidential military adventures, part icularly those engaged in by President Ronald Reagan, but the Courts have made it clear that the proper forum for the resolution of such interbranch disputes is in the legisl ative, and not the judicial, aren a (Fisher 2004, 694). In other words Congress, as a body, has not sought to assert its prerogatives agai nst a president who has sent American service men and women into harms way. The ultimate legislative sanction, to withdraw funding from the deployed mission, has always been and, one presumes, always will be politically unthinkable (although toward the e nd of American involvement in the war in Vietnam Congress had begun to move tentatively in that direction). At the same time, presidents have been cautious about pushing their war powers too far, fearing some form of Congressional backlash that could reduce their options in the future. Louis Fisher is pessimistic about the consequences for the Framers’ notion of checks and balances when it comes to the president’s power to make war (Fisher 2004, 701). In terms of my own typology of presidential activism, however, it seems clear that Congress has, whether intentionally or not, delegated the power to deploy American forces without Congressional consent. The War Powers Resolution has been in existence for more than thirty years and its lim itations have been appare nt virtually from the start. Yet Congress has not sought to update or to amend the Re solution, and has not often been willing to enforce it against a president who wa s prepared to push at the envelope of the authority that it grants to him. 68


Referring once again to my typol ogy of executive/legisl ative relations, I argue that a kind of tacit cooperation has built up between Congress and the president in re lation to war powers. Presidents have come to rely upon American me mbership of international bodies such as the United Nations and NATO, rather than a Congressiona l declaration of war, in order to justify the deployment of forces abroad. At the same time, presidents have tended to pay attention to the reporting requirements of the War Powers Resolution and have, in addition, sought Congressional approval before ma jor deployments of forces such as the wars in Iraq in 1991 and 2003. While asking for Congressional support, presiden ts have been keen to assert that they do not believe that it is constitutionally required. The power and responsibility to make war is, perhaps uniquely, an area of public policy in whic h neither Congress nor th e president can afford to force the debate to a conclusi on. To do so will result in a loss for one and a gain for the other, and neither can predict the outcome with any certainty. The courts have proved themselves to be reluctant arbiters in any event and any judgment that they may offer is likely to be good only for the dispute at hand. Therefore a degree of cons ultation, cooperation and strategic anticipation ensues; the president anxious for Congressional approval while asser ting that he does not need it, Congress unwilling to assert the fullness of its constitutional power, to declare war and hold the federal purse strings, so long as the president doe s not stray too far from a mutually acceptable policy of engagement. The Typologies Combined Combining the four stages of presidential and congressional distributi on of power with the typology of presidential activism produces, in summary, the ta ble below, where the shading of each of the squares gives an initial impression of the relative likelihood of Congressional and presidential interaction in particular zones of the typologies that have been developed in this chapter. The darker the shading, the more likely the correlation. For exam ple, in the realm of 69


legislative agenda setting Congress may cooperate with the president or it may delegate tasks to him; we know that it does both. It is less likely that Congress will be able or feel inclined to proscribe presidential action in setting the legisl ative agenda, at least by means of its formal constitutional and legal powers. Equally, a president may seek to influence the legislative agenda by means of the powers that are available to him in Justice Jackson’s zone of twilight, but the Congress & President Cooperate Congress Delegates Congress Proscribes Presidential Legislative Agenda Setting Somewhat likely Highly likely Less likely Presidential Unilateralism Somewhat likely Highly likely Somewhat likely President’s Commander in Chief/War Powers Most likely Somewhat likely Less likely Typology of Executive/Legislative Relations Typology of Presidential Action Figure 3-2. Presidential Activism versus Presidential and Congre ssional Distribution of Power opportunity to do so is likely to be quite rare. Considering presidential un ilateralism, as we have seen already Congress is highly likely to delega te authority to the president which is then actioned by means of the president’s unilateral powers . I argue, in the course of this work, that the president and Congress are likely to consult and cooperate on policy matters that are ultimately enacted by means of an executive order or similar instrument. Congress may well attempt to proscribe unilateral action by the president and the president is likely to find some scope for unilateralism in the zone of twilight. Fi nally, I argue that, despite the rhetoric on the part of both branches of government, the presid ent will most commonly exercise his powers as 70


commander in chief in some degree of cooperati on with Congress. It is without doubt that Congress has delegated some of its war making power to the president by means of the War Powers Resolution, discussed above, and its tac it acceptance over the course of the past sixty years, that presidents will wa ge war without a formal Congressi onal declaration of war. Congress may seek to proscribe presidential military adve ntures, but the political consequences of using the power of the purse to constrain a president when troops are in the field of battle will always prove to be unacceptable. Finally, it seems, on common sense analysis, that the president is likely to find that a degree of his authority as Co mmander in Chief is in Justice Jackson’s zone of twilight. Conclusion The president and the Congress need each other. Of that there can be no doubt. Congress without the president lacks focus and, therefore, the means necessary to make good public policy. An autonomous president lacks the representative buttress that keeps him from authoritarianism. Both branches of government share the same goal, the development of sound public policy. They often disagree about what sound public policy is, but each has an essential role to play in its development. A relationshi p in perpetual conflict would soon exhaust itself. Even in the most acerbic of power relationships, norms of behavior and interaction develop to make ordinary discourse possible. The Geneva Conventions are the perfect example. The government of the United States is not in perpetual conflict. David Mayhew tells us that even when different parties control th e different branches of government, the business of legislating still gets done (Mayhew 1991). I argue that it gets done subs tantially through inter-branch cooperation. Not benign, mutually appreciative coopera tion, but not antagonistic zero-sum based conflict either. In the system established by the framers, whether it is described as separated powers, separated institutions sharing powers or, as I describe it, separated institutions 71


negotiating outcomes , there is always tension; the tension is built in. Each branch has reason to fear and distrust the other, and each branch can be expected to jealously guard its powers and prerogatives. But the formulation, enactment, a nd implementation of public policy is a long game of many innings played by men and wome n with long memories and with plenty of opportunity to right past wrongs. Arthur Culvahouse, White House Counsel to President Ronald Reagan, observed to me that even where he was sa tisfied that President Reagan had the unilateral authority to act in a particular way, the administration as a w hole would think very carefully before acting on a sensitive matter of public policy in defiance of Congress. He continued “It is not an option that we would frequently pursue because Congress can close the “loophole” if it objects.”12 If, as I argue in this work, cooperation is a norm of behavior between the presidency and Congress, it would seem likely that a president who ignores that norm will incur some kind of negative response from a Congress that expects it s presidential counterpa rts to behave in a particular way. Presidents who ignore the norms of the legislative/executive game might find themselves, as Arthur Culvahouse suggests, facing some form of Congr essional backlash. An example can serve to prove the rule, and so I wi ll consider the unfinished career of the president who disregarded the norms of executive/legislativ e behavior to a degree unprecedented before or since, President Richard Nixon. 12 Author’s correspondence with A. B. Culvahouse. June 2006. 72


CHAPTER 4 THE EXCEPTIONAL RICHARD NIXON Introduction Richard Nixon is the exception that proves so many rules. His presidency is defined by Watergate and his personal cynical brand of polit ics. Above all else Nixon was a sore winner; victory was never enough, only the total destru ction of his enemies would do. The startling comparison of the Richard Nixon in office with the man who gave that most eloquent and painfully self aware address to the White House st aff on the morning of his last day in office is only to begin the journey to find an unders tanding of the complexity of the man the greatness comes not when things go alwa ys good for you, but the greatness comes and you are really tested, when you take some knocks, some disappointments, when sadness comes, because only if you have been in the deepest valley can you ever know how magnificent it is to be on th e highest mountain. . . Always give your best, never get discouraged, never be petty; always remember , others may hate you, but those who hate you don't win unless you hate them, and then you destroy yourself (Nixon 1978, 1089). Nixon challenged Congress in a way that few, if any, presidents have before or since. His determination to assert presidential authorit y was borne out of his belief that “Congress had become cumbersome, undiscipline d, isolationist, fiscally irres ponsible, overly vulnerable to pressures from organized minorit ies, and too dominated by the media.” (Nixon 1978, 770). This assessment happened to coincide nicely with Nix on’s pathological distrust of Congress as an institution and his predispositi on for centralizing policy making in the White House, among those few men, for they were all men, whom he trusted. It is undoubtedly true that, by the early 1970s, Congress had been buffeted by the intens ive legislative program of Lyndon Johnson, the escalation of the Vietnam war, and a general fee ling of having lost au thority to the executive branch. The political dynamics of Congress were changing as the power of the clique of conservative Southern Democrats waned in the af termath of the civil rights legislation that emerged between 1964 and 1968. This, in turn be gan to make reform of the Congressional 73


committee system seem like a possibility. The loss of the White House to a reactionary Republican president, in the fo rm of Richard Nixon, made the Congressional Democrats fearful for the future of the liberal reforms of the 1960s and for the prospects of bringing an end to the war in Vietnam (Sinclair 2004, 625-637). Congressiona l reform was, therefore, well underway by the time Nixon began his second term followi ng a landslide 49 states to 1 victory over the Democratic candidate George McGovern in the 1972 presidential election. Nixon and Congress: The Lines of Battle Drawn Armed with this mandate Richard Nixon began to take his reform agenda forward in earnest. In a series of programs systematically designed to undermine Congressional authority, Nixon pushed forward his plans, developed substantially by the Ash Council and previously rejected by Congress, to reorganize the struct ure of the executive branch. He continued to use his authority to impound Congressionally authoriz ed expenditure in order to rein in what he regarded as excessive public spending, and he continued hi s use of policy task fo rces and “freethinking outsiders” to draw policy devel opment into the White House and away from the departments and agencies of the federal government that were more susceptible to C ongressional influence and which might resist Nixon’s own policy prioriti es (Hoff 1994, 54-55). The creation of agencies, such as the Environmental Protection Agency, to replace some of the functions of federal departments, had the effect of making them respons ible directly to the pr esident rather than to Congress. The EPA siphoned most of its employees, and its entire budget, from federal government departments. Its new status as an ag ency denied Congress the ability to monitor and regulate it directly (Reeves 2001, 238). In Viet nam, Nixon’s policy of troop reductions was putting pressure on the forces that remained behi nd. North Vietnamese forces were striking from sanctuaries in Cambodia and re-supplying throug h that territory. The Paris peace talks were 74


stalled and Nixon needed to raise the stakes if progress was to be made toward “peace with honor” (Nixon 1978). Taking each of these initiatives in turn I will consider in more detail their impact upon Congressional authority and upon the president’s relationship w ith Congress. The lack of cooperation between the Nixon administration an d Congress is, I believe, unprecedented and ultimately resulted in the president's unique resignation from office in the face of almost certain impeachment. In his resignation address to th e nation, Nixon cited his loss of support in Congress as the motivation for his resignation from the discussions I have had with Congre ssional and other leader s, I have concluded that because of the Watergate matter I might not have the su pport of the Congress that I would consider necessary to back the very difficult decisions and carry out the duties of this office in the way the interests of the Nation would require (Nixon 1978). The loss of support in Congress had begun long before Watergate became an issue. Nixon systematically sought to reduce Congressional oversight of the executive branch through the reorganization of the federal government, to exclude Congressional influence from policy development by relying upon outside advisers and task forces rather than departments and agencies, and placing government fu nctions in the hands of agencies that were responsible to the president rather than departments who were responsible to Congress. In addition Nixon consistently re-wrote Congress’ policies after it ha d enacted them through devices such as the impoundment of congressionally au thorized expenditure. This governing after the fact brought Nixon into conflict with the pol icy priorities of Congress and so directly threatened the members’ relationship with their constituents; as “single minded seekers of reelection” (Mayhew 1974). Members of Congress could not be expected to tolerate that for long. This is not to argue that Richard Nixon’s resignation as president was unrelated to Waterg ate; but it is to suggest that 75


there was far more to the relationship between Nixon and Congress than Watergate, on its own, can explain. The Ash Council and Federal Government Management Reform Nixon appointed the successful i ndustrialist Roy L. Ash to h ead The President’s Advisory Council on Executive Organization in April 1969, ju st three months into his first term as president. The Ash Council, as it became known, comprised three other senior corporate executives and the former Democratic Gover nor of Texas, John Connally, whom Nixon had considered as a Vice Presidential runni ng mate in 1968 (Hoff 1994, 55). Following on the recommendations of the Ash Commission Nixon proposed a wholesale reorganization of the executive branch to Congress during his first te rm but it was rejected. In 1972, after his landslide re-election victory, Nixon deci ded to implement as much of the Ash plan as he could unilaterally. The plan was nothing if not ambitious; We decided to organize six of the eleven Ca binet departments and some of the hundreds of federal agencies under four general mana gement groups: Human Resources, Natural Resources, Community Developm ent and Economic Affairs. Ge orge Schultz would head Economic Affairs and one of the current Cabine t secretaries would named Counselor to the President for each of the remaining three areas. (Nixon 1978, 767) This prompted a “venomous congressional count erattack” and the clai m by Hubert Humphrey that, “ a constitutional crisis” was fast a pproaching (Nixon 1978 , 772). The effect of reorganizing much of the federal government al ong the lines proposed by Nixon was to upset the balance of Congressional oversight, which is orga nized into a strict syst em of committees with very specific jurisdictions. Reorganizing certain key functions of the federal government into these super management groups headed by Counselors to the Pr esident who report only to Nixon had the effect of removing large swathes of fede ral government responsibility from the carefully organized jurisdictions of the Congressional comm ittee system and putting them in the hands of individuals who were responsible to the president and not to C ongress. Congressional oversight 76


of the executive branch was, therefore, substantially diminished and the authority of the president was greatly enhanced. Nixon’s White House Counsel, John Dean, remarked to me he was really messing around with the jurisd iction of the various committees in the Congress because he’s putting people they can ’t reach on the White House staff making policy and running agencies. . . and he’s doing all this with zero consultation with the Congress.1 The administrative reforms of the federal government lent substance to the claims, made loudest after Nixon’s resignation, that he had been atte mpting “to establish a fascist dictatorship” (Hoff 1994, 50). His managerial style, reclusive nature , and reliance upon a few key individuals whom he trusted with extraordinary authority was seen as the key to his downfall, and his administrative reforms handily provided prio r confirmation of his reckless intent. The Policy Task Forces Nixon did not believe in Cabinet government, despite the campaign statements that he made to the contrary. Stung by his experiences as Vice President to Dwight D. Eisenhower, Nixon declared that “I had to attend hundreds of Cabinet meetings as Vice President, and felt that most of them were unnecessary and bor ing” (Ambrose 1989, 238-239). Nixon believed that “Cabinet government is a myth and won’t work ” (Hoff 1994, 52). In lieu of policy making in consultation with his Cabinet, Nixon turned to a system of advisers and task forces set up both inside and outside of the White House. Joan Ho ff (1994) describes some of the successes of Nixon’s most influential advisers; Roy Ash pe rsuaded Nixon of the need for a wholesale reorganization of the executive branch; Daniel Pa trick Moynahan and Robert Finch influenced the president’s thinking on welfare reform and r ace relations; John Connally, as Secretary of the Treasury, persuaded a doubtful Nixon of the me rit of wage and price controls and the devaluation of the dollar. It was Henry Kissinger however, first as National Security Adviser and 1 Author’s telephone interviews with John W. Dean III. May and September, 2006. 77


later as Secretary of State, who’ s paranoia surpassed even that of Nixon’s, that played a leading, if not universally supportive, role in the c onduct of Nixon’s favorite t opic, foreign policy. Key to understanding the dynamics of this centralization of policy making is the understanding that Cabinet head s and federal departments a nd agencies have their own relationship with Congress that is separate to, and often in competition with, their relationship with the president. Congress is, after all, thei r paymaster and their overseer. Even ostensibly loyal cabinet heads can become co-opted by thei r departments and become the messenger for the department in the White House rather th an the other way around. The phenomenon of “clientism” has been observed since the middle of the last century. David Truman argued in 1951 that “expediencies. . . turn department heads in varying degrees into political opponents [of the president]”(Truman 1951, 406) a nd Richard Fenno likewise observed that “the president’s influence over a cabinet member becomes splintered and eroded as the member responds to political forces not presidential in origin a nd direction” (Fenno 1959, 249). Richard Neustadt recalled, in Presidential Power, a conversation he had with a senior White House aid who observed that “Their [Cabinet members] personal attachment to the president is all too often overwhelmed by their duty to othe r masters” (Neustadt 1990, 40). More recently scholars have decided that th e resistance of the federal bureaucracy to presidential leadership has been overstated. Wr iting in 2003, Michael Nelson reports that career bureaucrats are far more willing to follow presiden tial leadership than was previously believed (Nelson 2003, 20; Moe 2003, 425-457). There remains a problem however. As Stephen Hess (1976) points out, Cabinet Secretar ies are not necessarily selected for their competence, or for their command of the subject ma tter of their department. Cabi net Secretaries are selected according to a system of historic tradition (the Secretary of the Interior should be a westerner), 78


trade-offs (not too many southerners, a good num ber of minorities, women, assorted religious affiliations, etc.) and obligations (political leaders, dis-elected senators, party apparatchiks, etc.) (Hess 1976, 180). This recipe does not make for the best pool of available talent, and presidents may be unwilling to give pot ential rivals a platform from which to abuse them. Whether the speculation of recent scholarship is correct or not, there can be no doubt that Richard Nixon distrusted his cabinet and the wider federal bureaucracy, part icularly in the realm of policy formulation. His experi ence of cabinet government came from the 1950s, a time when the notion of clientism was widely held and when Cabinet appointments were still based on patronage rather than ability. The widespread use of task forces and speci al advisers kept policy making away from the departments and agenci es who Nixon believed were both incompetent and vulnerable to Congressional and interest group influence. It also kept policy making tightly under the control of the White H ouse and, once again, outside of th e grip of Congress. Overall, Nixon’s objective was to keep control over the policy making apparatus by excluding Congress from its usual vantage points. Congress res ponded by criticizing mu ch of Nixon’s policy proposals; government reorganization, economic po licy, federal budget cuts and the tactics being deployed in Vietnam came in for particularly vicious attack. Another forum for Nixon’s program of stripping power away from Congress was his plan for a “New Federalism.” The objective of New Federa lism was, ostensibly, to return to the states control over issues such as e ducation, healthcare and manpower training. This was combined with a program of revenue sharing by which federa l funds were funneled back to states and away from the sticky fingers of Congress. It is proba bly unfair to describe Ni xon’s New Federalism as an entirely cynical attempt to remove money a nd responsibility from Congressional control, but 79


it certainly had the effect of circumventing the Washington bureaucracy and increasing the power of the White House (Hoff 1994, 67). The leading Democrat in Nixon’s White Hous e, Governor John C onnolly described the mood of Congress in 1973 as “the most vicious thing I have ever seen. They are mean and testy” (Nixon 1978, 770). The term “imperial president” came into use the same year with the publication of Arthur Schlesin ger Jr.’s book (1973) of the same name. The title came to epitomize a wide spread perception of the at titude and style of the Nixon White House. And We Haven’t Even Gotten To Impoundment As had been the practice of most of his predecessors since Jefferson, President Nixon took it upon himself to withhold funds that had been appropriated by Congress and allocated for specific projects and policies. The practice was commonly known as “impoundment”, although Nixon preferred the term “defe rrals of money” and by the Sp ring of 1973 Nixon had deferred, or impounded, $18 billion of Congressionally aut horized expenditure (Nixon 1978, 26-27). Congressional rumblings of discontent were alre ady in the air before the Watergate scandal broke in earnest in 1973, but it took environmenta l policy to bring the ma tter to a crisis the following year. Congress passed the Federal Water Pollution Control Ac t Amendments of 1972 over Nixon’s veto and appropriated $18 billion to be spent on improving water quality over the next three fiscal years. Nixon, in a rare convergence of opinion w ith a Cabinet Secretary, agreed with the analysis of his Secret ary of the Interior, Walter J. Hickel, who believed that such massive expenditure over such a short peri od of time would achieve only a marginal improvement in water quality. He argued that the anti pollution technology of the time was not sufficiently well developed. Nixon sought legal advice which confirmed that he had the constitutional authority to withhold half of the money appropriated under the 1972 Amendments. The House Judiciary Committee, considering the question from the point of view of including 80


impoundment as a ground for Nixon’s impeachment came, one imagines reluctantly, to much the same conclusion. ( Hoff 1994, 26 – 27). The issue of impoundment of Congressionally au thorized funds was not new. It had been the practice of most presidents since the nineteenth-century, but the stakes had been raised by President Lyndon Johnson who, for the first time, impounded funds appropriated for domestic programs. Hitherto presidents had confined thei r impoundment activities to foreign affairs (Hoff 1994, 26). Nixon believed, with some justification, that Congress had become fiscally irresponsible by the early 1970s and used his im poundment authority to control deficit spending in a way that no president had done before him. As Arthur Schlesinger Jr. put it impoundment had existed before Nixon, but no prev ious president had used it to overturn congressional will. For Nixon impoundment had become a m eans of taking from Congress the determination of national pr iorities (Schlesinger 1973, ch11) In essence, impoundment enabled the president to govern after the fact ; Congress could pass what appropriations it wished, but the pres ident would ultimately decide upon spending, and therefore policy, priorities. Not all of the pres ident’s impoundments were successful however. A few were challenged successfully in federal court. Nixon’s decision to withhold $2.5 billion in funding from the Highway Trust Fund was one such example, overturned by a federal court action led by Senator Sam Ervin (Patashnik 2004, 668-686). Ervin went on to lead Congress as it set about reclaiming the power of the purse. However, with no serious system of fiscal discipline, not even any means to match appropriations agai nst expenditure, Ervin, and his senior colleagues realized that Congress had to put its own house in order first. The Congressional Budget and Impoundment Control Act of 1974 was the result. It did three specific thin gs; firstly, it provided a means “for deciding on budget totals and rela ting the whole budget to its component parts” (Patashnik 2004, 669), secondly, it provided for the first time a source of in-house expertise to guide Congress in budgetary matters in the form of the Congressional Budget Office, and finally, 81


it eliminated the presid ent’s authority to unilaterally w ithhold, or impound, Congressionally appropriated funds.2 If President Nixon was disappointed at being shorn of the authority to impound, he certainly didn’t show it when he signed the bill into law I take special pleasure to day in signing H.R. 7130, the Congressional Budget and Impoundment Control Act of 1974. I commend the Congress for this landmark legislation, and I pledge the full support of the executive branch in helping fulfill the great promise of this bill.3 In fact the act would prove to be inadequate to the task of restraining the president’s impoundment authority and the type of legisla tive veto that it relied upon would finally be declared unconstitutional by the Supreme Court in 1983.4 At the time, however, it appeared to be a shift in favor of Congress in the battle to co ntrol appropriations and spending. There can be no doubt that Congress fully intended to strip Ni xon and his successors of the authority to countermand congressionally mandated spending priorities, to govern after the fact, just as they intended through the War Powers Resolution of th e preceding year to curtail the president’s ability to make war. War Powers and the Commander in Chief: The “Secret” and “Illegal” Bombing of Cambodia – March 1969 With President-elect Nixon committed to sign ificant troop reductions in Vietnam after his election victory in November 1968, the Joint Chiefs of Staff renewed their request to President Johnson for permission to take the war to the No rth Vietnamese supply li nes and sanctuaries in Cambodia (Hoff 1994, 210). Johnson refused but Nixon was minded, even before his inauguration, to take the war to the North Vi etnamese forces in eastern Cambodia (Hoff 1994, 2 refer=&r_n=sr299.105&db_id=105&item=&sel=TOC_65 387& (accessed February 12, 2007). 3 (accessed February 13, 2007). 4 INS v. Chadha. 1983. 462 U.S. 919. For a full discussion of this see Fisher (2004) and Fisher (1975, 14701) 82


211; Nixon 1978, 380-381). The crunch came in early March 1969 after a particularly savage North Vietnamese attack on the South; ove r the three week period beginning March 2nd, U.S. fatalities in Vietnam numbered 1,140 (Ni xon 1978, 381). Believing that upwards of 40,000 North Vietnamese troops were massed on the Cam bodian border, and were launching raids from there into South Vietnam, Nixon ordered the bom bing of the sovereign, an d neutral, state of Cambodia. Fearing a public outcry that would da mage his barely two m onth old administration, Nixon went to great lengths to keep the bombing of Cambodia secret from the public. This quest for secrecy extended to a dual bookkeeping exercise which sought to disguise the B-52 bombing missions over Cambodia, and specially rehearsed answers to potential press questions about the conduct of the war. (Hoff 1994, 217). The author of the dual book-keeping idea remains unclear; neither the House Judiciary Committee nor the Pe ntagon’s own internal investigation managed to uncover where it had come from, although Air Force Colonel Ray Sitton has since claimed responsibility. (Hoff 1994, 216 – 217; He rsh 1983, 61-63; Kissinger 1979, 243). Although widely referred to, even by Nixon, as a secret bombing campaign the fact is that a number of senior members of Congress were advised that it was goi ng on. Nixon reports that Senators Richard Russell and John Stennis, re spectively the Chairman and Ranking Republican on the Senate Armed Services Committee, were informed and, on Nixon’s account, “both men thought that the bombing was the right decision, and both said that they would back me up in the event that it became public” (Nixon 1978, 382). Although neither Nixon nor Kissinger knew it at the time, Secretary of Defense Melvin Laird, an enthusiastic supporter of the Cambodian bombing campaign and a man keen to feather hi s own nest among his C ongressional contacts, was busy briefing other members of Congress including Gerald Ford, George Mahon, Mendel Rivers and Edward Herbert (Isaacson 1992, 179). Secret , therefore, is a matter of degree and it 83


seems clear that members of Congress in both ho uses and on both sides of the aisle were well aware of the Cambodian bombing campaign. The Vietnam War was authorized by Congress pursuant to the Southeast Asia Resolution, colloquially known as the Gulf of Tonkin Resolution , on August 7th, 1964 following the subsequently disputed attacks on two U.S. destroyers by North Vietnamese forces. The USS Maddox and USS Turner Joy were conducting surveillance operat ions in international waters close to the North Vietnamese coast when they believed that they had been attacked by North Vietnamese patrol boats armed with torpedoes. Section One of the Southeast Asia Resolution provides that the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.5 The broad wording of the Southeast Asia Resoluti on gives considerable latitude to the president in the fighting of the southeast Asian war. Partic ularly, it authorises the President “to take all necessary measures to repel any armed attack against the forces of the United States.”6 Reference to the repelling of armed attack agains t U.S. forces would seem to clearly justify an attack on hostile North Vietnamese forces where ever they may be. The loss of more than 1,100 American lives in the first three weeks of Marc h 1969 was surely sufficient justification for the incursion based upon the strict wo rding of the Congressi onal resolution. In a ddition, the ti the Resolution refers to Southeast Asia, not si mply Vietnam, and so would seem to have envisaged from the outset that it may be necessary for the president to extend hostitlities to wider southeast Asian region (Moore 1971, 38-75). John Norton Moore, then Professor a tle of the t the 5 H.J. Res. 1145 available at (accessed February 13, 2007). 6 Ibid. 84


University of Virginia Law School, who considered the legality of the Cambodian incursion in 1971, concluded that the limited nature of the Cambodian action both geographically a nd temporally and its close relation to the Vietnamisation effort in support of American withdrawal strongly suggest that the action is most apropriately characterized as a command decision incedent to the conduct of the Viet Nam war. (Moore 1971, 38-75). Section 2 of the Resolution states unequivically that “The United States regards as vital to its national interest and to world peace the maintenance of interna tional peace and security in southeast Asia.”7 It goes on to confirm that “the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of arme d force, to assist any member or protocol state of the Southeast As ia Collective Defense Treaty (SEATO) requesting assistance in defense of its freedom.” Pres ident Lyndon Johnson had specifically requested Congress to authorize him to “assist nations covered by the SEATO treaty” and Congress had dutifully obliged. Prince Norodo m Sihanouk, the Cambodian leader, had asked the United States to retaliate against North Vietnamese forces in his country as early as 1968. Johnson had steadfastly refused to expand the war into Cam bodia. However, repeated Cambodian requests for assistance were probably sufficient to enable President Nixon to rely upon section 2 of the Southeast Asia Resolution as justification for the Cambodian bombing campaign (Moore 1971). It is important to note that Nixon saw the bombing of Cambodia as a lesser evil than to renew the bombing of North Vietnam, which Presiden t Johnson had halted on the eve of the 1968 presidential election (Hoff 1994, 208-219). Congress and the an ti-war movement could be expected to react badly to re newed bombing of North Vietnam and Nixon was anxious to avoid antagonizing either in his first few months in office (Hoff 1994). 7 H.J. Res. 1145 available at (accessed on February 13th, 2007). 85


In summary, the expansion of the Vietnam War into Cambodia was, despite subsequent claims, neither particularly secret in so far as Congress was concer ned, nor illegal in terms of the authorization that Congress had given to the president. Certainly it was kept from the public, and the use of a double book-keeping system was ques tionable both legally and as a matter of common sense, but the bi-partisan leaders of the Senate Armed Services Committee were informed as was anyone else whom Secretary of Defense Melvin Laird decided to confide in. The legality of the Southeast Asia (or Gulf of Tonkin) Resolution may be questionable, as is the veracity of the incidents which prompted it, but by 1969 the Resolution was already five years old and the President continued to have substant ial backing in both the House and Senate for his conduct of the war. Fredrik Logevall reports that He [President Nixon] retained strong back ing in the House of Representatives, where Speaker John W. McCormack and his successor in 1971, Carl B. Albert, maintained support for the administration; in the Sena te the president commanded enough votes to sustain any veto of antiwar legislation he found particular ly objectionable. (Logevall 2004, 598) The inescapable truth is that, de spite the attempts of a few indi vidual members of both the House and the Senate, Congress had made no serious atte mpt to amend or withdraw the authority that it had granted to the president in 1964 to conduct a war in Southeast Asia. No matter how much it wanted to, Congress could not separate itself fr om responsibility for Vietnam and pin the blame on the president; a fact which it belatedly recogn ized when the House Judiciary Committee voted down a proposed article of impeachment against President Nixon based upon the concealment of the bombing campaign in Cambodia (Hoff 1994, 217) The Exception That Proves the Rule Nixon went to war with Congress in a way no other president has. Congressional attempts to withdraw his authority to impound funds and ci rcumscribe the presidents power to wage war were poorly executed but Congressional intent wa s clear; the president had to be stopped. For 86


Nixon, Congressional ineptness was at the root of the development of the imperial presidency ; as he would argue in his memoirs the “Imperial Presidency” wa s a straw man created by defensive congressmen and by disillusioned liberals who in the days of FD R and John Kennedy had idolized the ideal of a strong presidency. Now that they had a st rong president who was a Republican – and Richard Nixon at that – they were having second thoughts and prescr ibing re-establishment of congressional power as the tonic that was needed to re vitalize the Rep ublic. (Nixon 1978, 771) The Watergate scandal ensured that Nixon’s refo rms to federal government management lost credibility with his immediate successors and so did not become permanent. Meanwhile, with the President on the ropes as Watergate unraveled, Congress sought to avoid being implicated in the failed war in Vietnam; the str uggling president became the conveni ent focus for everything that had gone wrong, from the bogus Gulf of Tonkin reso lution to the secret, but not that secret, incursion into Cambodia. Yet, even in this atmosphere of crisis and conflict, a degree of normality in the form of communication and cooperation continued between the executive branch and Congress. The Cambodian incursion is one example of the lin es of communication and cooperation. Others are cited later in this work. The fact is, however, that overall Nixon failed to adhere to the norms of communication and cooperation that other presiden ts have developed in their relationship with Congress. Congress, inevitably, responded. It stri pped Nixon, and future presidents, of the power to impound funds. It sought to limit the president’s power to make war. It railed against the reorganization of the federal government that w ould have stripped it of much of its power of oversight. Ultimately, it determined to remove the president from office. Joan Hoff (1994) reports that Ni xon’s Chief of Staff Bob Haldeman contended to her that “the [federal government] reorganiza tion, in all its forms, including its New Federalist features, constituted the “secret story of Wate rgate.” Hoff quotes Haldeman further 87


according to Haldeman and others, as Nixon moved “to control the executive branch from the White House. . . the great power blocs in Washington” turned against him and were ready to take advantage of Watergate in any way possible by the beginning of the second term. (Hoff 1994, 67) John Dean, Nixon’s former White House Counsel , speaking to me specifically about Nixon’s reorganization of the Executive Branch in accord ance with the ideas of the Ash Council, made the same point of course it’s [federal government reorganizatio n] one of the things that really irritates a number of the people on the Hill, and I think it’s one of the reasons why Sam Ervin and the Senate said “We’ve got to get this guy out of here.” They w ouldn’t say it overtly, but it is one of the many things that troubled them about Nixon, and Nixon, in his own memoirs, says he knew he was throwing the velvet gl ove down, he was challenging them. This was not in consultation with Congress, this was in defiance of Congress.8 Nixon did not cooperate with Congress, he openl y challenged it, and he was successful to a degree in taking power and authorit y away from it. He paid the pr ice later. Both Bob Haldeman and John Dean see, in Nixon’s power struggle with Congress, the seeds of his own destruction. They say explicitly that Watergate was the means that allowed Congress to remove a troublesome president who was determined to upset the traditional norms of behavior between the executive and legislative branches. As such, Richard Nixon represents the antithisis of the model of cooperation and consultation that I inte nd to develop in this work. The reason for spending time concentrating upon the exceptional be havior of the Nixon presidency is simple; a president ignores the no rms of cooperation and consultation w ith Congress at his extreme peril. Congress can, and will, respond to a president w ho seeks to act unilatera lly, who challenges its prerogatives, or who seeks to limit its oversight of executive branch activities. Watergate enabled Congress to remove Nixon from office before his more troublesome management innovations became institutionalized, it provided the rationale for thei r inept attempts restrict the president’s 8 Author’s telephone interviews with John W. Dean III. May and August, 2006. 88


powers in relation to war making and impoundment, a nd it gave them the perfect fall guy for the collective American failure in southeast Asia. The imperial presidency had been the logical conclusion of academic and liberal thought about the executive branch over the course of the preceeding two decades; that it finally arrived in the form of Richard Nixon was a shock, but Congress successfully removed the threat while, at the same time, it fumbled its opportunity to cut the presidency down to size in the longer te rm. This lesson has not been lost on subsequent presidents however. Treat Congr ess correctly; consult and cooperate. The consequences of not doing so can be costly to your own admini stration, and to everyone who follows you. 89


CHAPTER 5 THE VIEW FROM THE WHITE HOUSE Introduction: The President and the Tools of Bureaucratic Management The literature focus upon presiden tial unilateralism, particul arly the use of executive orders, should come as no surprise. A president with a policy agenda to promote will look to the range of tools that are availabl e to him and, as Edwin Meese, Senior Counselor to President Reagan, and part of the legendary Troika before becoming Attorney General, commented to me; “If he can accomplish it by Executive Orde r why would he then go to Congress?”1 Executive Orders are a part of that bundle of presidential powers that we might describe as the tools of bureaucratic management. They are the means by which the president manages the federal government for which he is responsible. A glance at the Disposition Tables of executive orders issued since 1907, which is maintained on-line by th e Federal Register, is enough to confirm that these are, essentially, tools of management.2 However, both Kenneth Mayer and William Howell identify what they describe as instances where a president has used execu tive orders to advance his policy priorities, sometimes in defiance of the expressed will of Congress. It seems reasonable, and consistent with Ed Meese’s comment, that the president will use this tool if it is available to him. I argue in this Part II of this work, however , that there are very good reasons why a president will not consider his tools of bureaucratic management to be an effective means of advancing his policy priorities. In this Chapter 5 I explore the perspective of some political pr actitioners who have worked in senior positions in the White House and who have used these tools of bureaucratic management on a day-to-day basis. I consider th e legal and political problems inherent when the 1 Author’s telephone interview with Ed Meese June 2006 2 er/executive-orders/disposition.html (accessed November 16, 2006) 90


president tries to make policy unilaterally, a nd I consider the means by which Congress can constrain a president who seeks to make polic y using the tools of bureaucratic management. In Chapter 6 I develop my proposition that the executive and legisl ative branches will often work together to develop public policy using examples that have been widely construed as instances of presidenti al unilateralism but which, on closer inspection, reveal evidence of the president and Congress working to gether. Through a combination of consultation, delegation and cooperation, I argue that the pr esident and Congress act ively develop public policy together in many instances. The policy may be implemented by le gislation or by the pres ident using his tools of bureaucratic management. The constraints upon a president seeking to advance his policy priorities unilaterally make it an inefficient and ineffective proposition. Not only is this the view of the White House practitioners, but it is compelling on a simple common sense basis. The president’s tools of bureaucratic management are simply not a good means of making public policy. Tools of the Trade Larry O’Brien, Special Assist ant to Presidents Kennedy a nd Johnson, describes the uses that presidents have for executive orders in the most prosaic terms. They are the simple tools of the trade with which the Executive branch manages the affairs of the federal bureaucracy. This might take the modern political scientist, schooled in the techniques of new institutional economics and rational choice theory, somewhat by surprise. O’Brien makes no reference to the potential for presidential legislation , or the ability of the presiden t to subvert the stated will of Congress “with the stroke of a pen .” Replying to Congressman Ge orge Senner (D-AZ), O’Brien points to the delegation and transfer of au thorities among the various agencies of the government, the establishment of advisory boards and commissions, and the implementation of policies that have been authorized by Congress; all matte rs that fall within the president’s realm 91


of responsibility as Chief Execu tive of the federal government.3 They are, in short, the tools of bureaucratic management necessary to the opera tion of the executive branch. We might very well think that, in the co ntext of a letter to a member of Congress, O’Brien was being naturally cautious, not wishing to overstate the potential for presidential entrepreneurship that these tools may provide. My interviews with other senior White House advisers te nd to confirm O’Brien’s analysis however. These unilate ral powers of the president are regarded, by his most senior advisers as the essential levers and pulleys with which the presiden t wields control over the vast federal bureaucracy. They are not generally rega rded as a means of asserting the president’s policy preferences; and for good reason. The presid ent’s unilateral power is limited in scope, uncertain in outcome, and its continuation as law is subject to the whim of his successors in office who may revoke or replace his unilateral acts with unilateral acts of their own. They are simply not a good tool for the job. Ed Meese describes the president’s unilateral powers as being complimentary with, rather than an alternative to, the pres ident’s legislative strategy with Congress; Meese states “I don’t see as much of a dichotomy between the presid ent’s unilateral powers a nd his cooperation with the other branches, particularly the Congress.”4 Meese points out that not everything requires legislation, nor should it. The Constitutional auth ority of the Chief Execu tive carries with it an inherent power and responsibility to manage which is distinct from the legislative authority of Congress. It is the responsibility of the president to carry out his executive f unctions and it is not appropriate for him to seek Congressional approv al when he has sufficient power and authority on his own account. 3 O’Brien to Congressman George F. Senner, Jr. March 9th, 1964. FE 6 Executive Order s 11/22/63 2/23/66 LBJ Library. 4 Author’s telephone interview with Ed Meese June 2006 92


John Dean, White House Counsel to Richard Nixon concurs; “I don’t think it’s a process driven decision as much as it is a policy driv en decision. What do we want to do and how do we get it done?”5 In other words, the use of unilateral powers, or the pur suit of legislation through Congress, are decisions which are driven by policy considerations. Dean argues that a comprehensive policy solution to any given topi c will seldom if ever be achievable by the president acting alone. It is likely to require legislation thr ough Congress. It may be possible to implement a part of the president's policy pr eferences by means of his unilateral powers but presidential unilateral action is simply not regard ed by practitioners as an effective policy tool. The practitioner’s analysis is supported by the findings of Kenneth Mayer and William Howell. In their separate analyses of executi ve orders, both found that at least 85% of all executive orders can be regarded as having no significant policy implications (Mayer 2001,8387; Howell 2003,83-84). They are, as former White House Counsels, Dean (Nixon), Casselman (Ford), Lipshutz (Carter) and Cu lvahouse (Reagan), and former A ttorney General to President Reagan, Ed Meese, have described them; the t ools of bureaucratic management with which the White House manages the executive branch. The Development of Presidential Power The modern notion of the legislatively active president can be traced back as far as Theodore Roosevelt with significant contributions along the way from political scientist and president, Woodrow Wilson, and TR ’s distant cousin Franklin (Corwin 1957). TR rejected the Whig tradition of Congressional supremacy a nd, instead, advocated a “stewardship theory” which he articulated in his autobiography thus 5 Author’s telephone interviews with J ohn W. Dean III. May and August 2006 93


my belief was that it was not only the [preside nt’s] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. (Roosevelt 1919, 388-389). Attempting to influence the legislative proce ss was well within TR’s expansive view of presidential authority. In a description of presidential activity that could easily describe the modern White House Congressional liaison effort, Corwin quotes Professor Finer’s articulate description of TR’s early mach inery of Congressional persuasion they sent messages to the Houses; and letters to party friends; held conferences and breakfasts in their rooms adjoining the Senate, and invited the Chairmen of Committees and the “floor leaders” to th e White House. Their most trusted and astute Cabinet officers were often sent to the Congressional lobbies to whip up support, and to exert the influence of pe rsonal representation of the President. Heads of departments attend ed caucus meetings; information was poured into Congress; party friends were provided with drafts of bills and the vindicating briefs. (Corwin 1957, 221-222). Roosevelt’s “Bully Pulpit” approach to the pres idency was rejected by his immediate successor William Howard Taft. In a last hurrah for the Whig tradition, Taft, quoted in Corwin (1957), described his philosophy of presidential power thus the true view of the executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary.” The Whigs had, nonetheless, had their day and wh en Taft passed the office on to Woodrow Wilson the Jeffersonian conception of “Separat ion of Powers” was over. Wilson would urge Congressional action dir ectly, in person, at joint sessions of the House and Senate. Legislation would be drafted by White House and executive branch officials in concert with the Congressional leader ship in both Houses and of both partie s. As the First World War consumed Europe from August of 1914, Wilson was able to te st the full scope of presidential power as it was afforded to him as Commander in Chief in wartime. Rebuffed by the Senate on the matter of arming U.S. merchant ships plying the Atlantic, Wilson went ah ead and armed the ships anyway 94


and denounced the Senate as “the only legislat ive body in the world which cannot act when the majority is ready for action” (Corwin 1957, 223) . There followed the preparation, by executive departments, of much of the essential wartime le gislation (notably The Se lective Service Act of 1917 and The Overman Act of 1918). The preced ent had been set; Congress was now the recipient of legislation that was proposed and prepared by th e executive branch. Further, Congress joined in with the pres ident and his staff in order to draft and to negotiate important pieces of legislation. The legislative avalanch e of FDR’s first one hundred days would follow within fifteen years and the model of legislat ive leadership by the executive would become the norm6. Methods of Presidential Unilateralism and the Problem of Concentrating on Executive Orders Presidential unilateral action can take a variet y of forms. Executive orders, presidential proclamations, executive memoranda, executive agr eements and national security directives are the formal methods of presidenti al instruction, but informal me thods exist alongside these. The most common means by which presidents express their wishes, as anyone who has spent time in the presidential archives will recal l, is by means of a tick in a “yes” or “no” box at the bottom of a note or memorandum from a White House advise r seeking his instruct ions. Institutional and rational choice scholars tend to focus exclusivel y upon formal executive orders because they adhere to a reasonably consistent format, they are published in the Federal Register , and they are numbered, more or less, sequentially. Quantitative scholars require something that they can 6 FDR’s celebrated first one hundred days has become a ya rdstick by which the activities of each new president have come to be measured. The notion of the first one hundred days is, in the case of FDR however, a misnomer. FDR was the last president to take up the office in the month of March, March 4th 1933 to be precise. All subsequent presidential inaugurations have been brought forward to January 20th generally leaving around 70 days between election victory and inauguration. Si nce FDR was elected on November 8th and was inaugurated on March 4th he had a since unprecedented 116 days, or an extra 46 days, duri ng which to develop an initial program of legislation for submission to Congress. Perhaps modern presidents should be m easured by their achievemen ts over the course of their first 146 days in office? 95


measure. Executive orders are very far from bei ng the only format for presidential unilateralism however, and the vagaries of admi nistrative practice mean that the expected lines of demarcation between executive orders and other forms of pres idential unilateralism are not always followed in the practical world of day to day politics. It is generally accepted, for example, that the distinction between an Executive Order and a presidential proclamation is that orders are directed towards the bureaucratic management of the executive branch whereas proclamations are inte nded to have wider public effect. Thus, for example, returning to Larry O’Brien’s typology of executive orders, an Executive Order might be used to delegate authority from one tier of executive branch management to another. The declaration of a national day of celebration or recognition, such as Thanksgiving day, would be effected by proclamation.7 Here, however, problems can arise; President Kennedy implemented the naval blockade of Cuba during the 1962 Cuban Missile Crisis by means of presidential proclamation, not an executive order or order of the Commander in Chief.8 Executive orders can be issued with contradictory or confusing accompanying memoranda (Cooper 2001, 137) and the Department of Justice, which is charged with vetting draf t executive orders for legality, meaning and, ultimately, sense, has tended to make a poor fi st of the job. In a memo to Wayne Granquist, associate director at OMB during the Carter presidency, Stan Morris points out with a mixture of 7 Some proclamations, such as that giving effect to the annual Thanksgiving Day holiday, have become annual fixtures. Beginning with President Lincoln in 1863, every year the president has issued a proclamation declaring a national day of thanksgiving on, since 1941, the fourth Thursday of November. 8 Proclamation No. 3504,3 C.F.R. 232 (1959 1963 Compilation) 96


surprise and despair that “In doing some re search into recent Executive Orders, I have discovered that many of them are not written in straightforward English.” 9 The broad requirements that executive orders mu st follow is itself determined by a series of executive orders. Beginning with Executive Order 5220, issued by Herbert Hoover in 1929, the mundane requirements for a uniform paper si ze and margins, for ease of binding, has been followed by various attempts to regulate a uni form style for executive orders. John F. Kennedy issued the most recent comprehensive set of instructions on how execu tive orders should be prepared and approved and this has since been amended thr ough additional executive orders issued by presidents Johnson, Carter and Reagan.10 Nowhere, however, is there any statute, executive order, decision of the courts, or other law which defines what an Executive Order is or, perhaps more importantly, how it might legally be used. There has been a resolute and, one imagines, quite deliberate failure to prescribe exactly what an Executive Order is or what its legal scope and standing might be. The courts have accepted the presidents power to issue executive orders, and their coequali ty with federal law, since 1937.11 However, the courts have also made it clear that “execu tive orders are a source of law only when they draw upon the constitutional powers of the pr esident or powers expressly de legated by Congress” (Fisher 1991, 109). As we have seen, executive orders, although th e focus of most serious scholarship in the area of presidential unilateral auth ority, are but a small part of th e picture and are subject to the vagaries of those who would propos e, draft, vet and issue them. The real scope for presidential 9 Memorandum Morris to Granquist, January 30th 1978. WHCF Executive Order (Amendment) Prescribing the Form for Proposed Executive Order 2/3/78 Jimmy Carter Library 10 Executive order 11030 was issued by President Kennedy in 1962 and has been subsequently amended by executive orders 11354, 12080, 12608 and 13403. 11 U.S. v. Belmont. 1937. 301 U.S. 324 97


unilateralism lies not in the formal use of orders, directives and memoranda, but in the exercise by the president of his wit and discretion to make use of the legislative tools that Congress has placed at his disposal. Kenneth Mayer (2001) c ites President Clinton’s unorthodox use of the Exchange Stabilization Fund to unilaterally provide the government of Mexico with $20 billion in loan guarantees in the very first paragraph of With the Stroke of a Pen . Congress had already determined not to give economic support to Mexico, but the president went ahead and did it anyway. Mayer notes that Congress found itself powerless to prevent the president from “commit[ting] to a multibillion dol lar program without any meani ngful interference” (Mayer 2001, 3). Yet President Clinton was not relying upon his unilateral authority to issue proclamations or executive orders to enact his program. He was simply acting in accordance with law that had been established by Congress some thirty years earlier. True presidential unilateralism is to be found not only in the annals of the Federal Register under the heading of executive orders and proclamations; in its most a ssertive form it is to be found in the day to day management of a federal bureaucracy which will spe nd $2.7 trillion in fiscal year 2006; it is to be found in the hands of the Commander in Chief of a military establishment which will spend $441 billion in 2006 and has a complement of 2.4 million personnel and employs another 15 million civilian contractors (Light 1999);12 it is to be found in the hands of the executive branch to which Congress has, and will con tinue to, delegate discretionary aut hority to enact the laws as it sees fit. Analysis, in isolation, of executive orders tell us very li ttle about the true extent of presidential power or the true nature of the presiden tial/congressional relationship. 12 Figures for 1996 from Light (1999) 98


Presidential Power in the Twilight Zone It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government , whether state or national, are divided into the three grand departments, the executive, the legisl ative, and the judicial.13 Despite the rhetoric of “the se paration of powers” the Supreme Court has long recognized that presidents may take action independently of Congr ess. Indeed the Court has accepted that there are areas of public policy where Congress and the president have a concurrent jurisdiction or where the distribution of authority is unclear.14 In such circumstances the president may take Congressional inactivity as a presumption in fa vor of presidential init iative. The president’s action will stand so long as Congress does not r eact with overreaching legi slation. This is, in Justice Jackson’s famous phrase, the “ zone of twilight” in which . . . congressional inertia, indiffe rence or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures of i ndependent presidential re sponsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather th an on abstract theories of law15 The president is, therefore, in the twilight zone when a ma tter of public policy arises upon which Congress has not acted to express its will. Subject to th e limitations that are discussed later in this chapter, the twilig ht zone is a realm for presidential entrepreneurship in the development of public policy. But how does the president know when he has entered that magical realm? The courts have decided the matte r in the negative; it is necessary for Congress to specifically deny the presiden t the right to interven e in an area of public policy. Silence on the part of Congress, in the twilight zone, is to cede the power to make policy to the president. If Congress is silent, it is deemed to have ac quiesced in the assumpti on of authority by the 13 Kilbourn v. Thompson. (1880). 103 U.S. 168, 190 , 26 S. L. ed. 377, 386. 14 Youngstown . 15 Ibid. 99

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president. In the 1915 case of United States v. Midwest Oil Company 16 the court considered the validity of an executive proclamation issued by President Taft in 1909. The proclamation followed a pattern set by a series of previous pr esidential proclamations which acted to withdraw public land in California from use by private parties seeking to exploit the state’s mineral reserves. Congress had been aware of this long series of actions by th e president and had not commented. The court decided, therefore, that Co ngress had tacitly acquiesced in the executive’s practice of withdrawing public la nds from use in given circumstances and that, by doing so Congress had raise[d] a presumption that such power is exercised in pursuance of the consent of Congress or of a recognized administrative power of the Executive in the management of public lands.17 The burden, therefore, falls upon Congress to express its will, and upon the courts to ascertain whether that expression of will is Constitutionally valid and has been followed by the president. Clearly, the president will be most inclined to assert his unilateralism in situations where Congress has not acted to constrain him. Political and legal reality, however, act as constraints upon the president also, as we sh all explore in this chapter. There is, on the face of the Constitution, no good reason for the court’s assumption in favor of presidential action. Fleishman and Aufs es (1976) argue that American democracy was never intended to be majoritarian. Designed as an inefficient producer of legislation, it seems to them that the court’s “acquiescence doctrine” pl aces too great an onus upon Congress to express an opinion on every conceivable matter of public policy, and upon the validity and desirability of each individual act by the president. Congressional silence may simply reflect the inherent power 16 United States v. Midwest Oil Co., 236 U.S. 459, 472 , 35 S. Sup. Ct. 309. [260 U.S. 178, 198] 17 Ibid. 100

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of Congressional minorities to obstruct the process of legislation even in the face of a broadly favorable majority. The acquiescence doctrine ha s, nonetheless, been the court’s consistent position for a century (Fleishman and Aufses 1976).18 At first glance it would seem to represent an extraordinary power in the hands of the executive; the ability to strike first, before Congress has a chan ce to express its preferences, on some entirely new and previously unconsidered development of public policy. At the very least this offers the president the opportu nity to set the agenda for future debate on the issue; at best the president can become the architect of an entirely new area of public policy. Entirely new areas of public policy rarely em erge without warning however. The circumstances in which a previously unthought-of policy real m presents itself, without any prior consideration or comment by Congress, is unlikely to be a commonplace phenomenon in a mature democracy. Public policy has long gestation and neither presiden ts nor members of Congress will often find themselves in the position of proposing something th at is either entirely new, or entirely their own creation. Public policy emerges from a proce ss of realization, discussion, identification of options, and, finally, decision. With the twilight zone limited to areas of policy that emerge spontaneously, as if from the ether, the scope fo r presidential unilateralism would seem to be highly limited. Presidential Power in the Twenty-First Century Presidential unilateral action is of interest to scholars because it represents something at the margins of presidential power; a potential step across the threshold into the domain of legislative authority that the Constitution, on its face, reserv es to Congress. Despite the alarm expressed at the concentration of power, partic ularly legislative power, in the hands of modern presidents we 18 For full discussion of this topic, and the origin of these ideas, see Fleishman and Aufses (1976). 101

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should not get carried away with the notion that presidents now represent a significant source of public policy which is potentially at odds with th e preferences of the legi slative branch. We can, at least, agree that pr esidential unilateral power does not extend beyond the ordinarily understood scope of presidential authority. This is im portant because it at on ce defeats the argument advanced, or at least implied, by some scholars that the president’s unilateral authority represents a dangerous legislative powerbase where presiden ts can unilaterally set public policy without reference to the elected members of the legisl ative branch (Morgan 1970; Mayer 2001; Howell 2003; Warber 2006). The limits on presidential un ilateralism are real a nd persistent and known best to those who work with them every day, the executive branch staffers and White House aides who are responsible for the day to day bureaucratic management of the government. President Clinton could not mandate a program of national healthcare reform any more than President George W. Bush could mandate a new policy of immigration control or social security reform. President Johnson could not manda te the abolition of the Jim Crow laws or the ending of discrimination in the work place or the ri ght of every American to vote; if he could he would not have had to invest such enormous effo rt and political skill in securing the passage of the Civil Rights Act 1964 and the Voting Ri ghts Act 1965. President Truman could not nationalize the U.S. steel industry because he di d not have the Constitutional or the legislative authority to do so.19 The essential constraint on presidential unilateral power is the fact that the scope of executive authority is limited to the activities of the fede ral government. Where the federal government does not reach, the president’s writ does not run. This is not to say that presidents cannot influence the wider public with the laws that they make to better manage the federal government. When Bill Clinton introduce d the “don’t ask, don’t te ll” rule to govern 19 Youngstown 102

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homosexual recruitment and retention in the arme d forces he was making a statement of policy which had the potential for profound social cons equences well beyond the U.S. military; that, undoubtedly, was his intention and he had been frus trated in his wish to act by executive order on the subject by the strongly adverse reaction of the military command and the threat of Congressional reversal. (Deer ing and Maltzman 1999, 770). We should not confuse influence, in this cont ext, with direct legislative power, however. Influence is, potentially, power in the political sense and pres idents since Washington have sought to peddle their influence whenever possi ble. Richard Neustadt’s entire theory of presidential power is based upon the notion of presid ential influence. But the argument being made in the current scholarship on presidential un ilateral power is that it represents a power to legislate, not a power to influence. As such it overstates the nature of presidential unilateral power to an unhelpful degree. The Limitations of Executive Action Political Limitations During the 1960 presidential campaign John F. Kennedy pledged to end racial segregation in public housing “ with the stroke of a pen ” ( Morgan 1970, 60 – 61).20 Kennedy was referring to segregation in federally assisted public housing programs whic h had developed since the 1930s and which, by the beginning of the 1960s had beco me complicit in a system which enabled “the private housing and home finance industries. . . [t o] profit from the benefits that the Federal Government offers – and on racial grounds deny large numbers of Americans equal housing opportunity.” 21 The executive branch had clear jurisdiction over the implementation and 20 See also Memorandum: Joseph Califano to the Pr esident, October 25, 1965. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 21 Report by the U.S. Commission on Civil Rights, 1961 quoted in Morgan (1970, 61). 103

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management of these federal assistance program s and so Kennedy’s pledge to act unilaterally was both apt, and achievable without reference to Congress. Nevertheless, it was almost two years after his election before President Kenne dy finally issued Executive Order 11063 which declared an official national public policy of nondiscrimination in federally assisted public housing, to be coordinated by the President’s Co mmittee on Equal Opportunity in Housing. This important statement of administration policy, and fulfillment of an election promise to those three quarters of the African American elec torate who voted for Kennedy in 1960 (Morgan 1970, 69), was issued with the minimum of fanfare. In fact, after a twenty-t wo month delay, Kennedy finally announced the Executive Order at a 6.00 p.m. news conference on the eve of the 1962 Thanksgiving weekend; only one question was asked about the Executive Order at the news conference which was dominated by questions about the conti nuing crisis in Cuba (Morgan 1970, 73). Kennedy realized what all modern presidents ha ve come to realize; the political costs of presidential unilateralism can be severe. Even where the president has clear legal authority to act unilaterally, the politics of his relationship with Congress and the perceptions of the wider media and public can make the costs of doing so t oo high. Ronald Reagan’s White House Counsel, Arthur B. Culvahouse, observed most (I think all recent) Administrations woul d not take such positions lightly or without substantial legal analysis. It is not an option that we would frequently pursue because Congress can close th e “loophole” if it objects.22 The political limitations facing a president who want s to assert his policy preferences unilaterally are formidable. He must be conscious that C ongress can react to overturn him, even although it will rarely be moved to do so; th e rarity of Congressional reac tion only serves to make the 22 Author’s correspondence with A.B. Culvahouse, June 2006 104

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occurrence more powerful when it does occur. Ri chard Neustadt argues that the resort to unilateralism marks out presidential failure to achi eve his ends by more conve ntional means. It is an admission of weakness; the president was unable to advance hi s policy preferences by persuasion. Neustadt concludes th at unilateral ex ecutive action is often “a painful last resort, a forced response to the exhaustion of all other remedies, suggestive less of mastery than of failure – the failure of attempts to gain an end by so fter means.” (Neustadt 1990, 24). In Neustadt’s analysis the executive branch lacks the means to ensure the carrying out of the wishes that it expresses through unilateral commands. Neustadt’s analysis of presid ential unilatera lism is at odds with the testimony of presidents and their senior advisers who, as we have seen, tend to regard the unilateral powers of the president as tools of the trade in the manageme nt of the executive branch rather than an important means of advancing the president’s po licy agenda. However presidents would agree with him that legislation on matters of policy is usually to be preferred to acts of unilateralism. I. Congressional backlash Presidents must carefully husba nd their relationship with Congr ess throughout their term in office. In the multi-inning game of politics memories of slights, or imagined slights, can be long lasting and opportunities to right past perceived wrongs will present themselves despite the best efforts of the players. Presidents, who seek to out-maneuver Congress by taking advantage of opportunities to reinterpre t the terms of existing legislation, or by exploiting loopholes of some kind, are playing a dangerous game. It took almost two years for President Kennedy to issue his promised Executive Order because he needed the support of Southern Democrats in Congress for legislation dealing with trade and foreign aid (Neustadt 1990, 72-73). Southern Democratic votes in both the House and, especially, in the Senate would continue to be crucial to Kennedy’s legislative program. Therefore, when he coul d delay no longer, Kennedy acted discreetly and 105

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“looked for the least divisive approach” to th e matter of action on civi l rights (Sorensen 1965, 497). Kennedy’s authority to issue Executive Order 11063 was never seriously challenged, despite grumbling from southern Democrats in Congress who argued that it represented “an audacious usurpation of power” by the executive, of powers reserved by the Constitution to Congress.23 Housing provided by the federal government fe ll clearly within the responsibility of the executive branch, yet political considerations forced the delay of even this modest step towards the ending of racial segr egation in housing in the United St ates. The potential for reverse at the hands of Congress also plays much on the president's mind. In a memo from the Vice President to President Johnson which he discusse s the pros and cons of presidential unilateral action on equal opportunity in housing, Hubert H. Humphrey points out the consequences of . . . a judicial rebuff are obviously significant and could represent a substantial setback for e qual opportunity in housing.24 Bill Casselman, who was a member of the Nixon Congressional liaison team and later became Gerald Ford’s White House Counsel, argue s that Republican administrations will tend to be philosophically disinclined to seek ways in which to circumvent the will of Congress using the president’s unilatera l powers. Casselman observed that “Given President Ford’s long service in the Congress, he was reluctant to take actions that might be interpre ted as a usurpation of Congressional power.”25 Casselman made the wider observation that in my experience. . . Presidents and their st affs have an innate sense of when it is appropriate to have the pres ident act unilate rally or go to the C ongress for legislative action. In general, this proce ss would involve deliberations by the affected department or agency, OMB, the Congressional Relations Office and the Office of Counsel to the 23 Senator John Stennis, The New York Times, November 21, 1962, 19:2 24 Memorandum: Vice President Hubert H. Humphrey to President Lyndon Johnson, May 18, 1965. WHCF HU 2-2 HOUSING 11/12/65 12/9/66 25 Author’s telephone interviews with William Casselman, May, August and October 2006 106

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President and other White House offices as appropriate (e.g. NSC), before going to the president for a final determination and sign-off.26 The politics of unilateralism is, therefore, not just about the pr esident’s legal ability to act unilaterally. An action may prove to be entirely within the president’s authority but still be politically costly to implement. Richard Neusta dt argues that presidents must conserve their public prestige and their reputation among their political colleagues for administrative and political competence in order to preserve and enhance their capacity to persuade Congress to adopt the president’s policy preferences. Archival resear ch from the Kennedy and Johnson administrations, combined with the observations of senior White House aides from the Nixon, Ford, Carter and Reagan administrations are c onsistently in support of the proposition that presidents will be careful and considered before making political use of unilateral authority. Recent quantitative scholarship on presid ential unilateralism tends to support the anecdotal evidence gathered from archive and interview. William Howell (2003) observes that presidential unilateralism will rarely be overturned either by Congress or through the intervention of the courts. The f act is that “Congress rarely uses the legislative process to overturn the president, and wh en Congress does, it almost always fails” (Howell 2003, 117). Moreover, “Congress often introduces legislation in support of an executive order, either by appropriating funds for a unilatera lly created agency or commissi on, extending the timeline of its mandate, or simply codifying the order into la w” (Howell 2003, 117-118). Similarly, on the rare occasion when presidential unilateral action is cha llenged in the courts, the courts will find for the president 83% of the time (Howell 2003, 173). Howell’s figures show that 55 separate executive orders have been challenged in the co urts since 1925; about 0.9% of the total number of executive orders issued (Howell 2003, 198201). Writing with Terry Moe in 1999, Howell 26 Ibid. 107

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reports that between 1973 and 1997 Congress successf ully challenged just 2 out of a total of more than 1,000 executive orders issued by the pres ident. Thirty four C ongressional challenges failed (Moe and Howell 1998). Kr ause and Cohen argue that to counter presidential moves, Congress has to overcome collective action problems in building congressional majoriti es. The legislature also has to rely on the legislative process, where strategic minorities may halt progress and thwart majority preferences. (Krause and Cohen 2000, 90). Adam Warber expresses his su rprise in finding that “Congre ss has been extremely reticent throughout the entire modern presidency regard ing the president’s Ex ecutive Order power” (Warber 2006, 23). Warber’s key finding, based upon content analysis of executive orders since 1936, reveals that president’s have not significantly expanded thei r use of executive orders to advance their policy preferences. Given the tendency towards Congressional acquiescence, identified by both Warber (2006) and Howell (2 003), the puzzle becomes why presidents have not sought to make greater use of their unilateral pow ers, particularly executive orders, to advance their own policy preference s. The answer, I argue, can be found in archival research and interviews with the practitioners themselves. Rati onal choice based approaches to the analysis of Congress’ lack of success in rest raining the unilateral president are cast in terms of a zero-sum success or failure dynamic; the president’s success re presents a failure on the part of Congress. I argue that these findings can be read another way, however. Congressional collective action dynamics undoubtedly influence presidents when th ey are considering unilateral action. While Congress’ typical failure to react to presid ential unilate ralism might indicate a lack of institutional capacity, the comments of the senior White House aides indi cate a high degree of caution on the part of the executive branch wh en contemplating presidential unilateral action. Executive caution and Congressional inertia probably represent something of a balancing act; a tacit understanding of the boundaries of acceptable behavior. Power struggles are avoided by a 108

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collection of unwritten rules, or norms, that ar e difficult for outsiders to understand, and difficult for scholars to measure. II. Perceptions of weakness Presidents prefer legislation. There is no question that the president will always seek a legislative solution to public policy issues that are important to him in preference to executive orders or the other tools of pr esidential unilateralism. Legislat ion has a breadth of impact on society at large that presidential unilateral ac tion cannot match. It delivers a message to the community that a policy issue is important to the president; so important that he has deployed the resources of his office to persua de Congress of the wisdom of his view. The following exchange from an interview with Clarence Mitchell, the Washington director of the NAACP and a regular adviser to President Johnson, is telling. He is commenting on the in ternal debate that the Johnson administration was having about whether to seek legislation or pursue a unilateral course of action on the desegregation of housing interviewer: “There was some thought at the time that an Executive Or der really wouldn’t be as effective as legislation. This legislation would have mo re of a force of public opinion when the time came to enforce the delicate subject. Mitchell: “Well to me it was so obvious that it wasn’t even debatabl e. And I think that many people recognized that. What they thought was that we would get into a bind in Congress and couldn’t get it through.”27 Ramsay Clark, Attorney General during the second term of the Johnson administration, commented on President Johnson’s philosophy of government President Johnson had shown very clear opposition to as a matte r of political science or governmental theory to effecting broad po licy changes in legal enforcement through executive order. Unquestionabl y, a sound position if we are to be a government in which the laws are enacted by a legislative branch and enforced by an executive branch.28 27 es.hom/oralhistory.hom/Mitchell/mitchell.pdf (accessed November 15, 2006) 28 Transcript, Ramsey Clark Oral History Interview IV, 4/16/689, by Harri Baker, Electronic Copy, LBJ Library. 109

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To this extent presidents are in accord with Ri chard Neustadt’s notion that unilateralism can be seen as an admission of weakne ss by the president. It is an acknowledgement that he has insufficient support in Congress to enact his legi slative priorities and that, as Neustadt would have it, he lacks the bargaining paraphernalia necessary to persuade Congress to his view. Legislation also has the consider able advantage of allocating a share of the responsibility for potentially divisive public policy to Congress and away from the president. John F. Kennedy had pledged during his 1960 pr esidential campaign that he would end segregation in housing “with the stroke of a pen” , thus delivering a hostage to fortune that eventually came to rest in the in-box of the Johnson administration. Kennedy’s statement had raised expectations among civil rights activists and Lyndon Johnson found himself under extreme pressure to act unilaterally while, at the same time, his most senior advisers were telling him that executive unilate ral action was of highly questionable legality and doubtful practicality. Johnson’s attempts to find a means to end the segregation of private housing stock took many twists and turns throughout the term of the Eighty-ninth Congre ss. His preference, by natural inclination as much as anything, was for a legislative solution which would be broader in effect than anything he could do unilaterally and would overcome the legal problems that were associated with unilateral action. In a memora ndum to the president from Joseph Califano the options of proceeding by legislation and Ex ecutive Order are discussed. Noting Johnson’s “predisposition towards acting in this area with the support of the Congress”, Califano outlines the problems with seeking legislation to desegregate private housing in the United States. Even though legislation might contain some constitutional problems, it would be far less vulnerable to defeat in the courts and w ould not arouse opposition from segments who 110

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oppose excessive use of executive power. Finall y, it has the great a dvantage of having the Congress behind you which represents the will of the majority of the people. 29 Califano went on to discuss the problems asso ciated with passing a meaningful housing bill through Congress. California’s Proposition 14, whic h sought to outlaw regulations aimed at the compulsory desegregation of private housing, had just received an overwhelming endorsement in the 1964 elections and there was con cern that this would make the passage of national legislation through Congress much harder, particularly as it was likely to be c onsidered during the 1966 mid-term election year. Califano continued unquestionably people are extremely sensitive on the housing issue, and it this issue which, if anything, will break down the racial barriers and represents something of an ultimatum in the use of federal power. 30 The sensitivity of the housing issue was also referred to by A ttorney General Nicholas deB Katzenbach in a memo which is undated but bear s the president’s notati on. Katzenbach observes “this would be the first attempt to secure legisl ation on a civil rights problem that exists in the North as well as the South.”31 The political context facing presidents who want to advance policy priorities by means of their unilateral pow ers represent only one se t of limitations on behavior. Perhaps even more important are the le gal obstacles that presidents face. These are explored in the next section. their The Legal Limitations on Executive Unilateral Action I. The divide between expectation and reality The United States has a sovereign Constitution. All public policy must ultimately derive its legal authority from the Constitution which divi des the legislative, executive and judicial 29 Joseph A. Califano Oral History Tran script, Oral History Interview June 11th, 1973, by Robert Hawkinson. LBJ Library Copy. 30 Ibid. 31 Memorandum: Katzenbach, undated, recipient not named. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library 111

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functions among the three branch es of government. Sometimes referred to as a system of separated powers, or as Richar d Neustadt prefers, “separated institutions sharing power” (Neustadt 1990). In this system th e legislative branch shares in th e administrative responsibilities of the federal government through the appropriati on of funds and the ove rsight of executive branch activities. The judicial branch, through its assumption of a power of judicial review, checks the activities of the legislative and ex ecutive braches against the yardstick of the sovereign Constitution. The executive branch shares in the legislative functions of Congress through the president’s power to endorse or veto legislation, his ability to propose and lobby for legislation on specific matters of policy and, so me scholars argue, a tool chest of unilateral powers that give the president th e opportunity to make public po licy of his own volition (Morgan 1970; Mayer 2001; Howell 2003;Warber 2006). These legislative powers of the executive branch derive from power and authority that is dele gated to it by Congress and from powers that are expressed and implied by the Constitution. The extent of these delega ted and implied powers have been the subject of judicial and scholarly consideration throughout the life of the Republic. Nevertheless, Justice Robert H. Jackson observed in the Youngstown case a judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. . . A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any questi on. They largely cancel each other. And court decisions are indecisive because of the judi cial practice of dealing with the largest questions in the most narrow way.32 Dearth of clarity can work in one of two wa ys; it can provide opportunity for an expansive interpretation of presidential authority or it can foster caution. The demise of the Whig tradition of executive deference towards Congress, and the embrace by both presidents and the courts of a 32 Youngstown 112

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“stewardship” notion of presiden tial power, have combined with a dramatic increase in the expectations of the office, both on the part of the electorate and prospective presidential candidates, to dictate a more expansive interp retation of presidential power. The scope of presidential unilateralism has very real legal limitations however. Among them are the practical limitations on presidential jurisdiction; presidents have direct authority on ly over the activities of the federal government. The extent to which this direct authority can indirectly influence wider aspects of public policy is dependent upon context and opportunit y, both of which change over time and from issue to issue. Executive unilateralism is not firm law in the sense that a statute or judgment of the court becomes firm law; the president or his successor can undo presidential unilateralism as easily, perhaps more easily, than when it was implemented. There are distinct societal limitations on how far a president may stray from the status quo in developing his own policies by unilateral means. II. The problem of limited reach By the end of 1964, disappointment with the effect of President Kennedy’s Executive Order 11063 had begun to set in. The order co vered housing which was owned by the federal government or which was provided through federa l loan and guarantee programs and federally sponsored urban renewal programs. It became clear, however, that minority groups already occupied a disproportionately large share of these forms of subsidized low-income housing.33 The Executive Order reached just 17% of newly constructed homes and about 3% of the total housing market with the greatest coverage being in middle class suburbs which minorities could ill afford in any event. 34 As a result of these shortcomings, President Lyndon Johnson was under 33 Memorandum: Norbert A. Schlei to Lee C. White. December 11th, 1964. WHCF EXECUTIVE HU 2-2 HOUSING 11/12/65 12/9/66 34 Memorandum: W. David Slawson, Office of Legal Counsel, Department of Justice, October 20th, 1966 WHCF Volume VII, Civil Rights Part Xc, Civil Rights Division, Tab H I 113

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pressure from civil rights groups, members of his administration, and even from members of Congress such as Senator Jacob Javits, to extend the scope of President Kennedy’s executive order35. From a political point of view, the matte r of open housing was a potentially far more difficult issue than anything that had, by the la te summer of 1965, been achieved through the Civil Rights Act of 1964 and the Voting Ri ghts Act of 1965. Regulation to eliminate discrimination in housing “would be the first atte mpt to secure legislation on a civil rights problem that exist[ed] in serious form in the North as well as the South.”36 In addition, matters such as the right to vote, the el imination of discrimination in th e work place, even the outlawing of the Jim Crow laws, did not directly effect the way people were able to live their lives in their own homes and in their neighborhoods and commun ities. It was one thing to have laws which permitted universal access to schools and public eateries, even to extend the right to vote, but so long as African Americans and other minorities were excluded from the opportunity to live where they chose such rights were of limited practical impact. In a letter dated Apri l 2, 1965, David Lawrence, Chairman of the President’s Committee on Equal Opportunity in Housing (CEOH), reported the Committee’s unanimous vote to recommend the extension of President Kennedy’s executive order. The Committee saw extension of the order to “include housing financed by commercial and mutual savings banks and by savings and loan associations” as an “essential prerequisite to real progress in this field.”37 35 Letter from Senator Jacob K. Javits to the President. September 16th, 1965. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 36 Memorandum: Katzenbach, undated, recipient not named. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library 37 Letter from Governor David Lawrence to the President. April 2nd, 1965. WHCF EXECUTIVE HU 2-2 HOUSING 11/12/65 12/9/66 114

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Figures reported by the Department of Justice emphasized the need for some form of government intervention to develop fair housing practices on a scale of 100, a study based on the 1960 census shows the median “housing segregation index” of 207 majo r American cities to be 87.8. Th e least segregated city of the group still had an index of 60.4. Less than a forth of existing housing segregation is attributable to poverty. The rest is pr esumably the result of discrimination. 38 CEOH’s proposal would extend the scope of th e non-discrimination provisions of Executive Order 11063 to more than eighty per cent of the private housing market.39 The Johnson administration was convinced that legislation on the issue would not be forthcoming from Congress in the mid-term election year of 1966. It was also not convinced, however, that the president had insufficient legal authority to ex tend the Executive Order as demanded by the CEOH. The legal and political position was outli ned for the president by Vice President Hubert Humphrey, who was Johnson’s points man on civil rights, in a memorandum there is, at best, grave doubt as to your authority to extend the Executive Order as recommended. . . First, there is an initial que stion whether the FDIC and the Federal Home Loan Bank Board. . . are subject to direct Presidential direction or whether they are independent agencies like the Federal Reserve Board. 40 That particular problem could, in Humphrey’s view, be overcome but he continued with the second and, in his view, mo re intractable problem the requirement to be imposed would have, somehow, to compel member banks and the savings and loan associations to requir e pledges of non-discrimination by private borrowers seeking funds to construct (or purc hase) housing. Even if the legal issue were favorably resolved, there is still a substa ntial question how such pledges might be enforced, and, in fact, whether they c ould be effectively enforced at all.41 38 Memorandum: W. David Slawson, Office of Legal Counsel, Department of Justice, October 20th, 1966 WHCF Volume VII, Civil Rights Part Xc, Civil Rights Division, Tab H I 39 Memorandum: Vice President to the President. May 18th, 1965. WHCF EXECUTIVE HU 2-2 HOUSING 11/12/65 12/9/66 40 Ibid. 41 Ibid. 115

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The problem was that any attempt by the presiden t to regulate the private housing market could only be made indirectly through federal agencies which had responsibilit y to regulate private banks and financial institutions, in this cas e the Federal Deposit and Insurance Corporation (FDIC) and the Federal Home Loan Bank Board (FHLBB). These agencies insure the deposits made by customers, both members of the public and corporate entities, with national banks and savings and loan organizations. If a bank or savings and loan organization becomes insolvent, these federal agencies repay the lost funds to the depositors. In order to take advantage of the protection that the FDIC and FHLLB provide, the banks and fina ncial institutions must submit to regulation by these agencies. Virt ually all banks and financial inst itutions in the United States were members of the FDIC or FHLBB at this time. However, since the agencies had been established to regulate of the activities of the lending institutions themselves, and not the activities of their depositors and borrowers, it was not clear how a policy of nondiscrimination could be transmitted through the financial institutions and on to their customers. Even if the regulatory agencies could impose a requirement for nondiscriminatory lending practices on the banks and financial institutions themselves, ther e were no effective enforcement tools available to the FDIC and FHLBB. A further problem would emerge if it was found, as many in the administration suspected, that the FDIC and FHLBB we re able to regulate part, but not all, of the housing construction and mortgage market. This c ould potentially skew the market in favor of institutions that were not subject to the regul ations. Hubert Humphrey summed up the dilemma thus [the problem is] whether the regulatory authority under the deposit insurance programs can be utilized to control not only the conduct of member banks and savings and loan associations but also the conduct of borrowers from such institutions.42 42 Memorandum: The Vice President to the President, May 18, 1965. WHCF EXECUTIVE HU 2-2 HOUSING 11/12/65 12/9/66 LBJ Library 116

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Attorney General Katzenbach observed that because of the legal limitations on executive action, we not only must proceed indirectly – by regulating banks in order to enforce restri ctions on the conduct of housing developers – we are limited severely both in possible cove rage and in the enforcement mechanisms we can use. We thus would be taking the seriou s legal and other risks involved in Executive action in order to accomplish a result of questionable value. 43 Despite the legal problems civil rights activ ists, including David Lawrence and the CEOH, believed in President Kennedy’s assertion, made during the 1960 presidential campaign, that desegregation of housing could be achieved “ with the stroke of pen .”44 They were convinced that executive unilateral actio n in the form of an Executive Order could desegregate public and private housing in the United States. Legalis tic arguments on the part of the Johnson administration were, therefore, perceived as a la ck of commitment to the whole concept of open and fair housing in the United Stat es. It also made the prospects for a legislative solution much more difficult. In the election year of 1966 me mbers of Congress would find it difficult enough to support new civil rights legislation; to be asked to do so when conventional wisdom believed that the issue could be resolved by the president acting independe ntly of Congre ss looked like an evasion of executive responsibility at the considerable expense of individual members of the House and Senate. Attorney General Katzenbach summed up the situation regardless of what the fact may be, they [m embers of Congress] have no doubt that the problem can be solved with a “stroke of the pen.” This attitude my increase the difficulty of getting legislation, for there will be some le gislators who will feel that they are being asked unnecessarily to take extreme political ri sks that the President could take on himself by issuing an Executive Order.45 43 Memorandum: Katzenbach, undated, recipient not named. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library. 44 Memorandum: Califano to the President, October 25th,, 1965. HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library. 45 Memorandum: Katzenbach, undated, recipient not named. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library. 117

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By late October 1965 Joseph Califano reported to the president that “t here is tremendous pressure from civil rights leaders and the President’s Committee on Equal Opportunity in Housing to do something” about the desegregation of housing. Calif ano warned that “to avoid an explosion some action must be taken soon.”46 The alternatives had boiled down to an extension of President Kennedy’s executive order, which was still regarded as deeply problematic, or to present legislation to Congress in the election year of 1966. The problems with the legislative route had been compounded by the vote on Pr oposition 14 in California in September 1965. Proposition 14 outlawed regulations that sought to restrict a prope rty owner from being able “to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses." Approved by a margin of two thirds, Proposition 14 was a clear indication of public anxiety about anti-discrimination laws which woul d impact their homes and property – and this from the relatively li beral state of California. It is not clear what finally took the steam out of the issue of open housing. The California vote may well have contributed to a general feeling that executi ve unilateral action would likely be ineffective and that Congress would be reluctant to visit the issue in an election year. In late November Joseph Califano reported to the president that the legislative route was to be preferred and that “Such legislation is so co mplex and difficult to put together that it is unlikely to be ready for consideration by you [President Johnson] a nd presentation to Congress before January, 1967.”47 Legislation would eventually be presente d by the Johnson administration as Title VIII of the Civil Rights bill of 1968. The battle to de segregate housing in the United States had begun during the Truman administration almost twenty years earlier. 46 Memorandum” Joseph Califano to the President, October 28th 1965. WHCF EXECUT IVE HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library. 47 Memorandum: Joseph Califano to the President, November 20th, 1965. WHCF EXECUTIVE FE6 EXECUTIVE ORDERS 10/11/65 10/16/66 LBJ Library. 118

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No one can seriously doubt the commitment of the Johnson administration to the pursuit of civil rights. The issue defined the domestic presidency of Lyndon Johnson. The president and his most senior advisers wrestled with the i ssue of desegregating housing for four years, searching for a way in which the president, actin g of his own authority and without the need for Congressional legislation, could implement a unive rsal policy of fair housing. Eventually, and from my reading of the arch ives, reluctantly, th ey acknowledged the inevitable; that desegregation of private housing in the United States required ac tion on the part of Congress. The president simply did not have sufficient au thority to achieve it on his own. For its part Congress would have been happy to have the presid ent take on the burden of dealing with what “would be the first attempt to secu re legislation on a civil rights pr oblem that exist[ ed] in serious form in the North as well as the South.”48 Having the president to blame would be no bad thing for members of Congress whose districts which were nervous and afraid of the consequences of an open housing policy. The president’s unilatera l powers were too limited and the political reality was that Congress would not vote for fair housing legislation in an election year. To have pushed for legislation and to have failed to ac hieve it would have set the cause of open housing back considerably, as we shall see in the next section. Since the president’s unilateral powers are limited to the activities of the executive branch, his influence upon the wider aspects of p ublic policy can only ever be indirect. The case of open housing is interesting, not simply as an i llustration of the legal a nd political limitations of presidential unilateralism, but also as an example of the relationship between Congress and the president on sensitive matters of public policy, such as civil rights. With an eye to their constituents, and in the wake of California’ s vote on Proposition 14, members of Congress were 48 Memorandum: Katzenbach, undated, recipient not named. WHCF EXECUTIVE HU 2-2 HOUSING 11/23/63 11/11/65 LBJ Library. 119

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reluctant to embrace the issue of open housing. Elect orally it could do them little but harm as many of them faced reelection in November 1966. Newly arrive d Democratic House members, knowing that the presidential coattails that brought them into Congress in 1964 would be less influential in 1966, were not anxious to be asso ciated by their new elec torate with an unpopular extension of civil rights legi slation. Johnson, for his part, searched for a means by which he, rather than Congress, could be associated with the issue. He was quite willing to take the political heat, and Congress was quite willing for him to spare them from having to address the painful issue of segregated housing. Indeed ma ny members of Congress fe lt that, by suggesting legislation rather than presidential unilateral action, the president was attempting to foist a politically divisive issue onto them rather than to use his own inherent powers. The widespread belief that open housing could be achieved “ with the stroke of a pen ” made members of Congress suspicious of the president’s motives and, perver sely, made the prospects for legislation on the matter much more remote. In this case the unilateral powers of the president actually became a handicap to the development of public policy on housing. III. The implied intent of Congress: The constr ained court; and the constrained executive? The implied intent of Congress can act as an additional legal restra int upon the unilateral authority of the president. In the matter of open housing, the co llective White House effort to find a way in which the president could legislate the desegregation of housing was conducted in the knowledge that if Congress were asked to make law on the subject and declined to do so, any possibility of presidential unilateral action would be at an end. An unattributed internal memorandum to the president warned that seeking legislation, which would probably not be forthcoming, would tend to preclude executive action, thereby making impossible an expanded Federal program in this field.49 49 Memorandum: incomplete, October 11, 1965. WHCF HU 2-2 HOUSING 11/23/63 11/11/65 120

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Congressional backlash to presidential unilate ralism is a political phenomenon provoked when presidents use their unilateral powers to drive public policy beyond the point that Congress is prepared to support, or at least to tolerate. Prior statements of Congressional intent, however, act as a very real legal constrai nt upon presidential unilateralism. Congress need not necessarily legislate on a matter in order to legally limit the scope for presidents to apply their unilateral powers in a particular matte r of public policy. In the Youngstown case the Justices were much persuaded by the argument that since C ongress had, through the Taft-Hartley Act50, provided a mechanism through which the president could in tervene to resolve th e steel industry labor dispute, it was not then open to him, as an al ternative course, to nationalize the industry by executive fiat . Justice Black pointed out, in his concu rring opinion, that Congress had, in fact, considered an amendment when it was debating the Taft Hartley Act which would have authorized the seizure of important industrial plants in the event of a national emergency. Congress rejected the amendment, thus indica ting its clear preferen ce for the traditional mechanisms of conciliation and free collective bargaining in the set tlement of industrial disputes in key national industries.51 Determining Congressional intent in these circumstances is a re sponsibility that will ultimately fall to the courts, but what is the record of the courts in dealing with the actions of a president who may have transg ressed the will of Congress? Having struck down President Truman’s attempt to nationalize the steel industry in Youngstown , the courts took a very different approach in relation to the matte r of civil rights. Prio r to 1964, the only legi slative treatment of 50 The Labor-Management Relations Act 1947 (the Taft-H artley Act) amended the National Labor Relations Act 1935 to provide for inter alia an expanded role for the National Labor Relations Board to mediate industrial disputes and gave the federal government the power to delay strike action that it deemed to be a potential threat to health and safety or to national security for a period of up to 80 days. 51 Youngstown 121

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the civil rights issue by Congress were the somewhat half-hearted attempts to overcome obstacles to universal suffrage enacted in the 1957 and 1960 Civil Rights Acts and various Acts that dealt with the regulation of the civil service.52 As a consequence, some scholars argue that , prior to 1964, Congress had clearly set its face against applying nondiscrimination provisions to government employment and government cont racting. One contemporary observer wrote Congress has expressly refused to continue the FEPC [Fair Employment Practices Commission] and has declined to enact anti-d iscriminatory legislati on. For the executive to attempt to reach the same result by indirecti on, through the Government contract device, is an unconstitutional attempt to legislate where Congress has refused to do so.53 While it is true that Congress did not articulate a national policy on civil rights until 1964 when it passed the Civil Rights Act, Ruth Morgan argues that there were many attempts to pass fair employment legislation in Congress between 194 1 and 1960. None came to a vote on the floor of either the House or the Senate however. Procedur al obstacles and a system of committees that were dominated by highly conservative Southern Democrats were partly to blame. However, presidents were also relu ctant to propose meaningful civil righ ts legislation to Congress for fear that their entire legislative ag enda could become derailed in the ensuing struggle (Morgan 1970). Nevertheless, during this period successive presidents succee ded in enacting measures to desegregate the military, to require non-discri mination in the hiring practices of government contractors, and to begin th e process of desegregating federal public housing (Morgan 1970; Mayer 2001; Howell 2003; Warber 2006). As Justice Jackson points out in the Youngstown Case, When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest e bb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presiden tial control in such a case only by disabling the Congress from acting upon the subject. Presidential clai m to a power at once so conclusive and 52 Principally the Civil Service Act of 1883 and the Selective Civil Service Act of 1940 53 Pasley (1957). 122

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preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.54 Notwithstanding the “low ebb” of presidential power in the realm of civil rights prior to 1964, the Supreme Court turned out to be genera lly supportive of presidential attempts to legislate on the matter. In March 1961 President Kennedy issued Executive Order 10925 which sought to “enforce a policy of non-discrimination in both government employment and private employment conducted under government contr act.” (Fleishman and Aufses 1976, 19 – 20). Kennedy’s authority to issue the order purported to re ly only upon “the authority vested in me as President of the United States by the Constitution and statutes of the United States”55; no further specificity was provided. The Executive Order was subsequently challenged in the courts on two occasions and was twice upheld. The key to Pres ident Kennedy’s authority to regulate the employment practices of the government and of government contractors was to be found in the Federal Property and Administrative Services Act 1949; a statute that was not specifically referred to in the executive order and which, at fi rst blush, appeared to ha ve little to do with its objectives. The 1949 Act was principa lly concerned with the provisi on “. . . for the Government [of] an economical and efficient system for th e procurement and supply of personal property and non-personal services, includi ng related functions such as contracting. . . ”56 In upholding President Kennedy’s executive order, the Court seemed to sense that its decision was a little tenuous; We would hesitate to say that the antidiscr imination provisions of Executive Order No. 10925 are so unrelated to the esta blishment of “an economical and efficient system for. . . the procurement and supply of property and servi ces,”. . . that the order should be treated 54 Youngstown 55 http://www.presidency.ucsb.e du/ws/index.php?pid=58863 (accessed September 23, 2006). 56 40 U.S.C. 471 (1970) quoted at Fleishman and Aufses (1976, 20) 123

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as issued without statutory authority . . . We , therefore, conclude that Executive Order No. 10925 was issued pursuant to statutory author ity, and has the force and effect of law.57 Keeping to the tradition of “dealing with th e largest questions in the most narrow way.”58, the court failed to suggest just how unrelated a statutory provision must be before the courts will consider the presiden t’s action unlawful. Congress had considered giving the presid ent the power to se ize factories when considering the Taft Hartley Act an d declined to do so. The Courts t ook this as their cue to reject President Truman’s seizure of the steel industry in 1952. Congress had failed to enact meaningful civil rights legisla tion prior to 1964, yet the courts uphe ld the unilateral actions of the president in the realm of civil rights. Does this amount to the development of civil rights legislation unilaterally by the president? The decisions of the Supreme Court sel dom stray far from the generally understood political consensus of the day. Nor do they vent ure far from prevailing trends of popular public opinion.59 Sanford Levinson’s revision of McCloskey’s classic observes in truth the Supreme Court has seldom, if ever , flatly and for very long resisted a really unmistakable wave of public sentiment. It has worked with the premise that constitutional law, like politics itself , is the art of the possi ble. ( McCloskey 1999, 14). The courts are not a judicial “city on a hill”, independent of polit ical and social trends, carefully weighing the law as it is to be found written in statute, precedent, and Constitution. The Constrained Court model sees the courts as dynam ic contributors to th e development of public policy. They are, however, constrained by the so cial context in which they operate, never straying too far from the political and social tr ends that exist and whic h change over time. The 57 375 F.2d at 632, n. 1 58 Youngstown note 23 59 For discussion see: Rosenberg 1991, McCloskey, Dahl, 1956 124

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consequences of judicial overreaching can be to prompt reaction from the other branches of government, most particularly Congress. Su ch an argument might tend to explain the incremental, and generally supportive role which the courts played in the development of civil rights by executive unilateralism. In her excellent evaluation of the use of ex ecutive orders to adva nce the cause of civil rights by presidents from Truman to Johnson, Ruth Morgan observes the use of the Executive Orde r is confined to an area bounded by the judgment of the President and the support of the American public. Furthermore, an Executive Order may be invalidated by Congress or overruled by the Supreme Court. (Morgan 1970, 83). This bounded nature of presiden tial unilateralism has many similarities with the constrained model of Supreme Court behavior proposed by Rosenberg (1991). The president must first of all act within the legal constraints that his unilatera l powers are subject to; th at is, within the realm of the federal government. He must assess the mood of Congress and the li kely reaction of the Courts; Congress may legislate to overturn him wh ile the courts may find hi s action in breach of existing law or at odds with the Constitu tion. While many scholars have found that Congressional reaction to overturn the unilateral actions of the pres ident are rare in the extreme, the possibility exists and the consequences for the president’s political credibility are harmed all the more by the rarity of the event (Howell 2003). In summary, Morgan points to the use of presidential unilateralis m as a phenomenon that is likely to continue when the president, “needs to move in advance of Congress in responding to wants acu tely felt by interest groups and at least some congressmen but insufficiently sup ported to overcome congressional inertia or opposition.” (Morgan 1975, 85). Morgan’s reference to the wants of “at least some congressmen” is key; my research suggests that presidents will seldom make radical public policy by means of their unilateral powers. When they do, it is in cooperation with and consultation with Congressional leadersh ip. The fact is that, over the period of twenty years from 1941 to 1961 presidents did develop the national policy on 125

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civil rights without the benefit of Congressional legislation. Morgan and others, however, report widespread support in Congress for a meaningf ul civil rights policy which was stymied by procedural obstacles and by the dominance of a powerful block of conservative Southern Democratic members of Congress (Morgan 1975; Rhode 1991). The court reflected the mood in Congress by allowing the president’s unilateral actions to stand. As judicial scholars have argued, the courts are constrained by the expr essed will of Congress and by the popular mood in the country. On both counts, in the period from 1941 to 1961 the mood was for development of meaningful, if restrained, civil rights legisl ation. Congress, acting on its own account, was unable to deliver, but at least some congressmen saw the need for action and, while Congress could not enact civil rights legislation before 1964, it at least did not prevent executive action by articulating its objection in a form that both the president and the courts would have had to abide by. In other words, Congress did not act to appl y a civil rights policy, bu t it did not act to constrain the development of a policy by the other branches of government. IV. The problem of impermanence The relative ease with which an act of ex ecutive unilateralism can be implemented is matched only by the ease with which it can be ov er turned. Newly inaugurated presidents will regularly revoke the executive orders or other unila teral actions of their pr edecessors in office. Senior White House advisers are acutely aware of this and it therefore makes unilateralism a poor vehicle for the advancement of the president’ s policy priorities. John Dean points out that the unilateral actions of the presid ent “. . . obviously [is] going to last only as long as we’re here unless our successor buys on to it.”60 60 Author’s telephone interviews with Jo hn W. Dean III. May and August 2006. 126

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If the president has a particular policy prefer ence that he regards as a priority, it makes little sense for him to enact it through unilatera l means that can potentially be challenged by Congress or through the courts and can easily be undone by his su ccessors in office. Richard Nixon’s Executive Order 11796 dealing with the regul ation of export controls was issued in the dying days of his presidency on 30th July, 1974. It was revoked by President Gerald Ford as one of his first acts as president.61 Nixon’s Executive Order sought to change the system of administration of export controls but President Ford reinstated the status quo ante within two weeks. Similarly, Executive Order 12264 i ssued by President Jimmy Carter on 15th January, 1981 was revoked by President Ronald Reagan within a month of his assuming office.62 President Carter’s order attempte d to set government policy in rela tion to the export of banned or significantly restricted substances . In his first year in office Pr esident George W. Bush amended or revoked twenty-one of the executive orders that had been issued by President Clinton63. As an effective tool for the implementati on of the president’s policy preferences, the impermanence of executive unilateralism is clear ly a serious handicap. Even although the courts may uphold the president’s right to act, his successor is equally empowered to amend or even revoke his predecessors’ unilateral acts. Serious pub lic policy making on the ba sis of presidential unilateralism is, therefore, an uncertain process. The policy priorities of the president demand greater certainty and alternative methods. The Significance of Process Not all executive orders are created equal. Executive orde r 11030, which prescribes the processes to be followed in preparing, filing a nd publishing executive orde rs, requires all draft 61 Executive Order 11798 issued 14th August, 1974. (Nixon resigned office effective noon 9th August, 1974) 62 Executive Order 12290 issued 17th February, 1981 63 ster/executive-orders/2 001-wbush.html (accessed September 29, 2006). 127

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executive orders to be approved first by the Di rector of the Office of Management and Budget and then by the Attorney General before it can be submitted to the president for signature and publication in the Federal Register . The overwhelming majority of executive orders are prepared at department or agency level far away from the president and hi s senior advisers in the White House. They will be drafted by lawyers within th e department or, at the department’s request, by the Department of Justice. After review for policy and political imp lications by the OMB the final form of the draft order will be passed to the Office of Legal Counsel (OLC) in the Department of Justice for final legal vetting. Only then will the order be transmitted to the White House ready for signature by the president. A brief note of explanation is attached, usually by the White House Counsel’s office, outlining the reasons why the department has requested the executive order, its overall purpose, and conf irmation that it has been vetted and approved through the necessary process. A typical covering memo, in this case issued by Lloyd Cutler and addressed to President Carter, reads as follows the attached Order, prepared at the Department of Defense, delegate s to the Secretary of Defense certain authority of the President unde r the International Secu rity Assistance Act of 1979, which amends the Arms Export Contro l Act. In particular, the Secretary is delegated certain functions re lated to NATO cooperative projects, as well as certain obligations for reports to th e Congress. The order also contains certain technical amendments. Justice and OMB have approved the order, as have State and NSC.64 In most cases, the first the president sees of an Executive Order is when it arrives on his desk for signature with the White House Counsel’s cove ring memorandum. Neither he, nor his senior advisers will have had anything to do with the or der’s creation; it is entirely a creature of the department or agency that is affected by it. 64 Memorandum: Lloyd Cutler to the President. April 14, 1980. Jimmy Carter Library. 128

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It is only on very rare occasi ons that executive orders will originate with the president or the senior White House staff themselves. In al l such cases the drafting of the Executive Order will be passed to the Department of Justice although the White house Counsel will be consulted regularly by the OLC during the drafting process. White House Counsel will only draft executive orders in the most extraordinary of circumstances. A.B. Culvahouse, Counsel to President Ronald Reagan, reports that his office drafted the Executive Order which established the Brady Commission to examine the catastrophic stock market crash of October 1987.65 None of the other former White House Counsel whom I in terviewed could recall an instance where an Executive Order was prepared by their office. It is not possible to determine which executi ve orders originate at the request of the president or his most senior White House staff. Even following comprehensive archival research, the paper trail from instruction, to drafting, to signature, to public ation is usually incomplete and is hampered by the fact that presidents in office rarely write anything down, let alone issue detailed written instructions to their subordinates. Those w ho have been through presidential archives will be familiar with the tick-boxes at the end of staffers memoranda seeking instructions from the president on particular ma tters. Sometimes there will be a tick, occasionally a scribbled note in the pres ident’s hand. Usually, there is nothing. Yet we know from the archives and from interviews with former Wh ite House Counsel that executive orders rarely originate from a presidential instruction or at th e request of a senior White House adviser. They originate in the departments and agencies th at require them for the purposes of their administrative functioning. This begs the question; if presidents are not part of the process by 65 Author’s correspondence with A.B Culvahouse. July 2006 129

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which executive orders are generated, can we real ly regard them as having the imprimatur of presidential policy preference? The Problem of Perspective Academic and Practitioner Perspectives on Presidential Unilateralism Existing scholarship on presidential unilateralis m is limited in extent but consistent in conclusion; presidents, it is argued, can affect significant pub lic policy innovation by means of their unilateral authority. In essence presidents have a distinct legislative capability which enables them to advance their ow n policy preferences using a substantial tool chest of unilateral powers such as executive orders, presidential proclamations, nationa l security and other directives, presidential memoranda and the simple expedient of issuing inst ructions to agencies and departments of the Federal Government. What is more, scholars argue, the president can use these tools at his disposal to implement public policy initiatives over the heads of a Congress which may have policy inclinations which are quite different. These unilateral powers confer upon the president the power to legislate on significant aspects of public policy in a manner which threatens to encroach upon the legislative prerogative of Congress. The academic perspective of the potential for presidential unilateralism is not, apparently, shared by the Senior White House advisers who I have interviewed. Senior aides from the Nixon, Ford, Carter, and Reagan administrations have e ach told me that they did not consider the president’s unilateral powers to be significant so urces of authority with which to advance the president’s own policy agenda when legislatio n through Congress was unlikely to succeed. This, we might think, is what skilled and careful politic al practitioners who have worked at the very highest levels of government, ofte n at both ends of Pennsylvania Avenue, might be expected to say. To admit that the president can legislate on hi s own, in a manner that defies the political will of the elected legislativ e branch, would be politically injudici ous. However, each of the former 130

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presidential advisers with whom I spoke has be en out of political office for many years, they have no particular need to pres erve a fiction for the purposes of on-going political relationships with Congress, each answered my questions in substantially simila r terms, and their rationale for discounting presidential unilatera lism as a tool for advancing th e president’s policy objectives stands the test of common sense. Politicians and the scholars who seek to better understand them will often view the same political phenomena in completely different wa ys. They have, after all, radically different perspectives in te rms of both their locus and their place in time. Scholars are, with rare exceptions, outside of the political system (Neustadt 1990).. Even when they are invited inside to study political practitioners at work in their ow n environment, the scholar remains an outsider and is insulated from the pressures and complexities that determine the behavior of their subject. Furthermore, the observer cannot escape the influence that they have on the observed; a problem which is all the more acute when political sensitivities and rivalries are in play, the stakes are of national if not global significance, and the subject of the observa tion is politically astute, highly educated and experienced in the art of presentation. Practitioners view their worl d in real time and their priorities are defined by an environment that is complex, hi ghly structured and substantia lly closed to external eyes. Presentation can matter as much, sometimes more, than substance. They suffer from imperfect information combined with an imperative to act. They are entirely withou t the scholar’s benefit of hindsight. When we ask them questions, they may tell us what they believe to be the truth; they may tell us what they want us to believe; or they may tell us what they think we want, or perhaps expect, to hear. Ultimately we must judge the value of what they tell us by collateral means. Is it consistent with other things that we ha ve learned? Is it consistent with the account of 131

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others? But above all, does it seem sensible? I be lieve that the practitione r’s accounts that I have obtained pass these tests. It is ultimately, however, for the read er to judge whether my set of criteria is a good one, and whether the facts as I report them m eets that criteria. Conclusions The legal and political limitations on presidential unilateralism are important and persistent. Presidents’ most senior advisers have described the unila teral powers that are available to them as the simple tools of the tr ade, the means of bureaucratic management for the executive branch. They do not regard them as effective tools with which to advance the president’s policy priorities for the reasons that we have explored in this chapter. The risk of Congressional or judicial backla sh, the problem of limited reach, the fact that the president’s successor can easily undo what he has done unila terally, all combine to make presidential unilateralism simply unsuited to the job of advancing the president’s policy priorities. Does that mean that we must buy into the Neustadtian notio n that the president’s unilateral powers are a poor last resort when persuasion has failed? I do not believe so. Presiden ts do make significant public policy using their unilateral powers. They do so successfull y, however, only in a particular context. It is the c ontext for successful presidential unilateralism that will be examined in the next chapter. 132

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CHAPTER 6 COOPERATION, CONSULTATION AND DELEGATION: THE NORM OF PRESIDENTIAL/CONGRESSIONAL RELATIONS Introduction: According to Justice Robert H. Jackson, when the president acts in accordance with “an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” 1 Power is not unidirectional however. When Congress and the president act together to combine their respective legal and constitutional au thorities, the federal government as a whole must surely be at its most powerful. Most presidential literatu re fails to explore the scope for presidential and congressional cooperation and consultation. It al so fails to make the distinction between a president acting using his own powers and one acting in accordance with congressionally delegated authority. In this chapter I argue that consultation, coopera tion and delegation represent the norm of executive/le gislative relations and that p ublic policy made in concert between the branches represents the federal government at the very zenith of its power. There follow a number of examples of inter-branch consultation, cooperation and delegation drawn from different presidential admi nistrations and across a range of policy areas. This chapter begins, however, with an examin ation of the five stages of presidential congressional cooperation, consultation and delegation; these range across a spectrum from pure presidential unilateralis m, where the president acts entir ely on his own authority without reference to Congress, through to the president and C ongress acting in concert to implement an agreed policy in the most efficient and effectiv e manner. It is important to be aware that references to Congress in this chapter do not necessarily refer to Congress as a whole. Party 1 Youngstown. 133

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leaders in Congress have become powerful over the course of the past two decades or so and are the chief point of contact between the president and Congress. A strict protocol is observed by members of the White House Office of Congre ssional Liaison (OCL) so that congressional leaders are always consulted first, then Committee Chairmen and Ranking members are consulted simultaneously. Tom Korologos is the current U.S. Ambassador to Belgium but was previously responsible for Senate liaison in the Nixon OCL. He confirmed to me that congressional liaison was a very hierarchical exercise.2 As we will see, congressional leaders do not always represent the priorities of their ra nk and file members and may even work with the White House against the expressed will of the ordinary members. Cooperation, Consultation a nd Delegation in Five Stages There can be no doubt that presidents make regular and decisive us e of their unilateral powers. Current literature on the subject warns us that presidential unilateralism can represent a powerful tool with which the executive branch can overcome congressional opposition and make public policy for itself. The literature cites examples of presidential unila teralism and argues that they constitute a dangerous usur pation of the congressional le gislative prerogative. If we examine acts of presidential unila teralism in more detail, howev er, we will often find strong evidence of presidential/congressi onal cooperation, consultation or delegation. This section sets up a simple five stage analysis of presiden tial/congressional cons ultation, cooperation and delegation. The five steps take us from pure presidential unilateralism, through varying degrees of Executive/congressional coope ration, including congressional delegation, and conclude with an examination of circumstances in which the President and congression al leadership jointly agree on an issue of public policy which is then implemented either by means of legislation or 2 Author’s telephone interview with Tom Korologos, August 2006. 134

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through the use of the Pres ident’s unilateral powers. I will th en identify practical examples of each of these five stages and discuss how they fit into a pattern of presidential/congressional consultation, cooperation and delegation. Stage 1 — Pure Unilateralism In this case the president does not inform Congress of his inte nded action, he does not give them the opportunity to discuss his proposal, and he is not acting using powers delegated to him by Congress. This represents the ultimate form of presidential unilateralism – the president relies entirely upon his own Constitutional authority and he does not seek or require congressional support or approval, although he w ill commonly inform Congress of his decision before it is announced publicly. Crucially, the president is not acting using powers delegated to him by Congress. Most recent scholarship on the topic fail s to make this distinction and treats all forms of presidential unilateralism as if the president were acting entirely on hi s own authority rather than relying upon congressional delegation. This, in turn, leads to the focu s of normative concern about presidential unilateralism a nd the fear that congressional prerogatives are being usurped by an activist executive branch. Most recent scholarship in presidential unilateralism which focus upon the president’s power to issue executive orde rs, including the work by Kenneth Mayer, William Howell and Adam Warber, tends to charact erize presidential unilateralism in these terms. I argue, however, that we must disti nguish pure presidential unilateralism, a president acting entirely on his own Constitutional remit, from the president acting with powers delegated to him by Congress. To do otherwise is to ascrib e a degree of power to the president that he simply does not enjoy. On average presidents will issue around 60 execu tive orders each year. President George W. Bush issued 113 Presidential Proclamations in 2005. Countless memoranda, directives and other written and unwritten instructions filter out of the White House in a constant stream of 135

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presidential instructions to th e departments and agencies of th e federal government. The growth of the federal bureaucracy over the past century has been accompanied by an explosive multiplication in the number of unilateral directives issued by the president each year (Moe and Howell 1999, 132-179 Journal of Law ; Moe and Howell 1999, 850-872 Presidential Studies Quarterly ). Executive orders, which are the subject of virtually all recent academic research into presidential unilateralism, have maintained a fairly steady frequency since the end of the Second World War however. Kenneth Mayer (2001) found th at presidents issued on average around one policy significant executive order each month, about fi fteen percent of the to tal, the rest being purely administrative in nature. William Howell (2003) found a similar number, around fifteen percent, of executive orders to have a high degr ee of policy significance. Howell argues that the percentage of executive orders that have significant policy outcomes has increased since 1960 (Howell 2003, 84). Both Mayer and Howell’s an alyses are based upon a sampling of executive orders issued since 1936 and 1900 respectivel y. More recent work by Adam Warber (2006) produces a quite different conclusion. Based upon a content analysis of th e full text of every executive order issued since March 19363, Warber observes that those which have a high degree of policy significance have not increased acro ss time. According to Warber (2006), modern presidents are no more or less likely to use execu tive orders to advance significant matters of public policy than their twentieth-century pr edecessors. These conf using conclusions are probably inevitable in any attempt to categorize something as nebulous as policy significance using statistical tools. It does s eem safe to conclude, however, th at by most statistical measures 3 The text of Executive orders beginning with Executive Order 7316 of March 13, 1936, are held by the Federal Register and the NARA Disposition Tables list the st atus of Executive Orders from January 8, 1937 136

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presidents issue executive orders that have significant implicati ons for the development of public policy on a reasonably regular basis. Stage 2 — FYI: The President Informs Congre ss That He Intends to Act Unilaterally Presidents will sometimes inform Congress that they intend to act but not seek specific congressional approval because they are acting within their ow n Constitutional or congressionally delegated authority. This is as much a matter of courtesy as anything, but I argue that has a fundamental difference from the pur e form of presidential unilateralism described above. By putting Congress on notice of a proposed action, the president is opening himself to questioning and may enable congressional opponents to organize more quickly, perhaps even to the point where they can challenge him with c ounter legislation or judicial review. William Casselman, a congressional liaison staffer in the Nixon White House and, later, White House Counsel to President Gerald Ford, describes th is as a process of getting the administration’s message out on the Hill. It has the disadvantag e of alerting the President’s opponents to his preferred course of actio n, but it also provides the President’s supporters w ith an opportunity to articulate their support for him and to counter congre ssional criticism.4 Tom Korologos, a Senate liaison man in th e Nixon White House and now the U.S. ambassador to Belgium, reports that it is often important for the president to get his message out on the Hill in advance of the more general annou ncement of his unilateral action; it is important to get the president’s supporters ready to rally round, but it also important to put opponents on notice so that they cannot say th ey were not told of the presid ent’s decision. While not “asking for permission”, the president is acknowledgi ng the importance of Congress, heading off 4 Author’s telephone interview with William Casselman. August 2006. 137

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potential opposition, and maximizing the poten tial influence of his own supporters.5 This can, of course, work both ways; the premature announcem ent of presidential action can galvanize congressional opposition making it more difficult for the president to enact his proposals. Korologos points out, however, that “the president’s ideas are known on the Hill.”6 No one is likely to be amazed by a president’s announcemen t; the White House is constantly feeding members of Congress with information.7 Bill Timmons was the Nixon administration’s principal adviser on congressional relations between 1969 and 1974. He repor ts that “most often the White House discussed unilateral action with [congr essional] leadership beforehand” and he acknowledges that, although it was seldom the case, it was not unknown for congressional leaders to propose unilateral action on a matter of polic y by the president.8 Stage 3 — Congress “Fails” To Act: The “Zone of Twilight” and Institutional Deadlock Justice Jackson’s celebrated “zone of twilight”, in which the president and Congress may have concurrent jurisdiction or where the allocation of power is uncertain, represents one aspect of this category of pres idential action. As discussed in Chapter 5, the zone of twilight represents an area where whoever who acts first can set public policy which can then be difficult to dislodge, but it is unlikely to occur often because matters of public policy can rarely be expected to develop spontaneously. Justice Jackson points out that “. . . c ongressional inertia, indifference or quiescence may sometimes, at least, as a prac tical matter, enable, if not invite, measures on independent presidential responsibility.”9 5 Author’s telephone interview with Tom Korologos, August 2006. 6 Ibid. 7 Ibid. 8 Author’s correspondence with William E. Timmons. July 2006 9 Youngstown 138

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Congressional inertia is not th e only circumstance in which the legislative branch may find itself unable to respond to the unilateral acti on of the president however. The Constitutional architecture of the U.S. system of governme nt was designed to make consensus difficult to achieve. House rules set by the Rules Committee and the Senate filibuster add to the potential obstacles that are strewn in the way of Congr ess reaching difficult or divisive decisions. Extensive congressional de bate may well lead to impasse on a divisive matter of public policy; the members being unable, due to procedural obstacl es or political considerations, to articulate an agreed response to a signifi cant policy issue. The president may act to implement policy once Congress has debated itself to a st andstill, inviting congressional reaction if it is sufficiently motivated or unified by his soluti on. The extent to which this can be categorized as presidential unilateralism depends upon the circ umstances and how closely the president’s solution resembles the outcome of the congressional debate. A presid ent who overreaches in such circumstances is liable to generate a congressional backlash and may well succeed in uniting Congress when it was previously unable to unite itself. The president’s action in these circumstances is also subject to the inherent limitations on presidential action that are discussed in Chapter 5; the president must have jurisdiction to act which means that the matter must be related to the activities of the federal government. The president’s action is subject to revision by his successors in o ffice, or by Congress or through judicial review. Finally, the pres ident has to be satisfied that his action, on a matter that must already have proved to be divisive in Congre ss, will not be damaging to his own political authority. Stage 4 — The President Acts Usin g Powers Delegated By Congress Legal scholars have spilled much ink exploring the boundaries of constitutionally acceptable congressional delegation to the executive branch. Social scientists have spilled still 139

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more ink reflecting upon the implications fo r the legislative func tion that arise from congressional delegation. The judi ciary, sticking firmly to the principle of answering the widest questions in the narrowest possi ble manner, have given many case specific decisions but offered little in the way of broad guidance on the subject.10 Work by Kenneth Mayer, William Howell and, most recently, Adam Warber all fail to ma ke any distinction be tween executive action which arises from legislative delegation and that which relies upon the president’s inherent Constitutional authority. Ruth Morgan reported that between 1945 and 1965 83% of executive orders were issued under some form of speci fic statutory authority (Morgan 1970, 5). Bringing Morgan’s analysis up to date, I have found that 82.6% of executive orders issued between 1970 and 2006 refer to legislation passed by Congress for their legal authority.11 Key to understanding this category of presiden tial unilateral action is an examination of whether, and if so when, congressional delegati on of authority to the executive amounts to an abdication of congressional responsibility. How much control does Congre ss retain over the way in which the president implements the author ity thus delegated to him? (McCubbins 1990, 133153). If congressional control remains tangible a nd effective, it must be wrong to characterize presidential action pursuant to that delegated authority as unilateral. If, on the other hand, Congress has effectively abdicated its own respon sibility to the presid ent with little or no practical oversight, then congres sional delegation could amount to a significant source of the president’s unilateral power. The unavoidable fact is that Congress delegates authority to the president all the time, in virtually every statute that it passes. It is in the nature of the executive/legislative relationship. 10Youngstown note 23, Chapter 3 11 See Appendix b 140

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Also, as we have discussed, public policy is commonly developed in dialogue between Congress and the executive branch, so that presidential infl uence is likely to be f ound in the laws that Congress passes. When Congress de legates power to the president it should, therefore, come as no surprise to him. His advisers, possibly even he himself, are likely to have been involved in proposing it, lobbying for it or against it, or negotiating its terms; perhaps even some combination of all three. Delegation can have politic al as well as legal co nnotations, however, as the examples will show. Stage 5 — The President and Congress Agree on Policy This occurs when congressional leadership a nd the President are in agreement on a matter of public policy which is then implemented either by the traditional means of legislation or, less commonly, by means of the presiden t’s unilateral powers. In eith er form, I argue that this represents the federal government at its most poten t, and there can be little doubt that it can lead to the significant development of public policy. The circumstances that lead to congressi onal/Executive cooperation on policy making are, as we shall see, many and varied but they are persistent across successive presidential administrations. It is the fundamental claim of this work that, contrary to the notion that presidents will try to use their unilateral powers to circumvent th e will of Congress, presidents tend to use their unilateral power s to make significant public polic y only after consulting with, and in cooperation with, Congress or when acti ng on authority delegated to them by Congress. What is more, as Bill Timmons reports, congress ional leadership may su pport or even, albeit rarely, propose presiden tial unilateral action in circumstan ces where the leadership sees a 141

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particular development of public policy as desira ble, perhaps essential, but acknowledges that they cannot gain sufficient, or sufficiently timely, support for legislation on the matter.12 The Five Stages Applied: Cooperation, Consultation and Delegation in Practice There follow a series of examples, across admini strations and in a vari ety of policy areas, that illustrate each of the five stages of pr esidential/congressional cooperation, consultation and delegation outlined above. The first are examples of pure presidential unilateralism, where the president is free to act on his own Constitutio nal and legal authority and does not rely upon Congress. As we shall see, the scope for pure pres idential unilateralism in areas of significant public policy are few, but can be important in pa rticular, usually narrow, circumstances. Varying stages of presidential/congressi onal cooperation, consultation and delegation follow, bring us to policy that is developed and implemented in co ncert by the two branches ; the very summit of federal government authority. These examples are important because they all have the appearance, on first acquaintance, of acts of presidential unilateralism. Closer examination reveals however that, with the exception of thos e described as pure pres idential unilateralism, they all exhibit strong evidence of presidential/congressional cooperation or c onsultation, or arise out of congressional delegation of authority to the president. Pure Presidential Unilateralism – Pardons by Presidents Jimmy Carter and Gerald Ford President Jimmy Carter had been in office less than twenty-f our hours when he issued his first executive order13. The order put into effect a controve rsial campaign pledge made by Carter to grant pardon and amnesty for those who had avoided the military draft during the Vietnam war. The fate of those who had sought to avoid the draft during the Vietnam War, some of whom 12 Author’s correspondence with William E. Timmons. July 2006 13 Executive Order 11967. Relating to Violations of the Selective Service Act, August 4, 1964 to March 28, 1973 signed January 21, 1977. It is interesting that this was eff ected as an executive order and not as a formal presidential pardon. 142

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had fled the country in order to do so and were unable to retu rn home for fear of prosecution, was something to which the President felt a stro ng personal commitment. It was something that he was determined to do as president, and it was almost the first act of his administration. Robert Lipshutz, in my interview with him, recalls the modest signing cer emony in the oval office attended by Attorney General Gr iffin Bell and a handful of othe r presidential advisers. Lipshutz counts the photograph taken at the occasion as one of the most treasured mementos of his time in government.14 Press and congressional comment fo llowing the announcemen t of the Executive Order was mixed and attempts were made in both the House and the Senate to pass motions that would criticize the newly elected president’s action. The motions failed, however, and in any event Congress was powerless to restrain the president’s action. When Gerald Ford came to office in the uncertain aftermath of Watergate and the resignation of Richard Nixon he was ill prepared for the manner in which his predecessor would continue to haunt the new administration. It didn’t ta ke long for Ford to conclude that, if he was going to be able to govern effectively, he was going to have to bring the national obsession with Nixon to an end. The only way to do that, as Ford saw it, was to grant him a pardon and eliminate speculation about a criminal trial of the former president and all that that would entail (Ford 1979, 157-180). As Ford was contemplating granting a pardon for Nixon he deliberately avoided any consultation with c ongressional leadership for fear that the matter would leak, a prospect which he viewed as “calamatous” (Ford 1979, 162). Eventually, once the decision was made, Ford called congressional leaders to tell them what he was going to do. No one expressed outright opposition, but most were surprised by the timing (Ford 1979, 175). Ford went on to 14 Author’s personal interview with Robert Lipshutz. May 2006 143

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grant the pardon amid deep public controversy which continued for the rest of his term in office. He would question whether the Nixon pardon had caused him to lose to Jimmy Carter in the 1976 presidential electi on (Ford 1979, 437). There was never any question that President Fo rd’s pardon or Presid ent Carter’s amnesty fell clearly within the president’s Constitutional authority to “grant Reprieves and Pardons for Offenses against the United States.”15 Congress could merely put its objections on the record after the fact. The presidential pow er of pardon is, therefore, pr obably the clearest example of pure presidential unilateralism; the president has an unassailable Constitutional authority to issue pardons, Congress has no concurrent or competi ng jurisdiction, and the ma tter cannot be subject to judicial review. So long as th e president is prepared to accept the politic al fallout from his action, as Carter clearly was and Ford was, perhaps niaevely, not expecting, there is nothing that Congress or the Courts can do to stop him, even if they know of the president’s intentions in advance. Notwithstanding clear constitutional authority, presidents are sometimes reluctant to act on their own authority without informing Congress in advance. In the case of President Carter’s amnesty, he was fulfilling a pledge he had made during the presidential campaign. He did not seek the views of Congress on his proposal; in f act he made every effort to enact it before Congress could muster its response.16 Ford informed congressional leadership only after he had made up his mind to act and minutes before he issued the pardon to President Nixon. However, as Tom Korologos reports, presidents will often seek to take the sti ng out of a congressional response, and to mobolize their own supporters in advance, by advising Congress of their 15 United States Constitution, Article II, Section II. 16 Austin Scott, “Reaction to the Pardon Runs Gamut From Joy to Outrage,” Washington Post , January 22, 1977. 144

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intention to act unilaterally. This can be seen as a simple courtesy, and often is no more than that, but it does give some opportunity for congressi onal reaction to be acknowledged and, to some extent, accomodated. Information Exchange and Consultation Between the Branches — The China Syndrome At a series of breakfast meetings throughout the two years followi ng his election to the presidency in 1968, Richard Nixon and Senate majo rity leader Mike Ma nsfield would discuss their plans to end the hostile relationship that had persisted between the United States and the People’s Republic of China since the communist victory in the Chinese Civil War two decades earlier (Oberdorfer 2003, 361). Nixon outlined hi s China strategy to the highly receptive Mansfield in the summer of 1969 and, probably at their meeting on June 11th, they discussed Mansfield’s desire to go to Ch ina. Nixon supported the Democratic majority leader’s plans and Mansfield kept the president appraised as he opened a channel through the deposed Cambodian leader Norodom Sihanouk to the Chinese Prem ier Chou En-lai (Oberdorfer 2003, 392). While Henry Kissinger explored diplomatic openings with the Chinese through such diverse partners as Nicholae Ceausescu of Romania and Yahya Khan of Pakistan, Mansfield pursued his own course, always keeping Nixon informed, thr ough Sihanouk. His persistence eventually was rewarded and, in April 1971, he received an invi tation to visit Beijing. Rather than make a public announcement of his diplomatic coup Mansfiel d immediately sent word to Nixon and the two met the following day, April 17th, 1971 to discuss the Chinese invitation. Nixon’s strong support for Mansfield’s initiative continue d; he was, in Nixon’s own words “. . . the perfect man to go.” In fact, at Henry Kissinger’s suggestion, Mansfield would go as the President’s envoy .17 The cross-party cooperation came to a sudden and unexpected halt when Nixon himself received an 17 All quotations from Nixon Tapes, conversation 487-1, 4/23/71 quoted in Oberdorfer (2003). 145

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invitation to visit the Chinese a few days later. However, following Henry Kissinger’s secret trip to China in July 1971, Nixon, Secretary of State Rogers and Kissinger met with Mansfield for a lengthy breakfast ahead of a briefi ng of the rest of the Senate and House leadership (Oberdorfer 2003, 403). The greatest foreign policy coup of the Nixon administration, perhaps of the Twentiethcentury, thus came as no surprise to the Sena te Majority leader. Nixon, perhaps the most reclusive of modern presidents, consulted regularly with Mansfiel d as he crafted his China policy through 1969 to 1971. Mansfield even briefly enjoye d the status of pres idential envoy, until the jealousies of political calculation took over and Nixon sought to keep his China policy under the control of the White House. As an act widely perceived as presidential unilateralism, Nixon’s opening to China can have few peers. Yet use of the term “unilatera l” is potentially mislea ding. Mike Mansfield’s enormous expertise in Asian affairs undoubtedly ma de him a unique resource for the president as he felt his way towards a rapprochement with that one third of the planet with which the United States did not even have diplomatic relations. Mansfield’s reputation for discretion and square dealing no doubt gave Nixon confidence that his pr ivate discussions with the Democratic leader of the Senate would remain precisely that, priv ate. Yet Nixon sanctioned a two track approach to China, supporting Mansfield’s efforts to chart hi s own course to Beijing, and only the necessity to retain the political kudos of his China policy eventually drove Nixon to recant his support. Once the political initiative had been firmly returned to the White House, following Kissinger’s visit in July 1971, Mansfield, and the rest of the Senate leadership, were once again embraced in the process of Executive/Legislat ive consultation and cooperation. 146

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Congressional Inertia and Impasse : The President’s Helping Hand in CIA Reorganization and the Development of the Internet Ah, he'll call him in and say, "We've got the signal from across the rive r to, to put the hold on this." And that will fit rather well because the FBI agents who are working the case, at this point, feel that's what it is. This is CIA.18 According to the terms of the National Secur ity Act of 1947, the Cent ral Intelligence Agency (CIA) shall not have any “policy, subpoena, law enforcement powers or internal security functions.”19 Bob Haldeman’s discussion with Presiden t Nixon about the possibility of warning the FBI off of its investigation into the break -in at the Watergate office of the Democratic National Committee by inferring that the whole exercise had been a botched CIA operation might, therefore, have been expected to raise a few eyebrows. By the early 1970s, however, the activities of the CIA, both at home and abroad, had become blurred to such an extent that Haldeman’s proposal did not seem at all implausa ble. In fact, as we all now know, the CIA had nothing to do with the Watergat e break-in but the climate of di strust that came to surround the executive branch as a whole after Watergate and the war in Vietnam was bound to envelop the CIA as well. As President Gerald Ford took office in August 1974, the CIA’s activities, such as domestic mail and telephone call interceptions, infiltrating domestic radical organizations, and domestic surveillance of U.S. citizens, together with assorted foreign assassination attempts, sponsored coups, and the overthrow of the Alle nde government in Chile were attracting both congressional and public concern (P.B.S. 1976, 332 – 382; Clark and Neveleff 1984, 493-513; Johnson 1985, 549-573). Ford moved quickly to appoint hi s vice-president, Nelson Rockefeller, 18 H.R. Haldeman: Meeting Between President Richard Nixon and H.R. Haldeman, June 23rd 1972 from 10.04 a.m. to 11.39 a.m. National Archives and Records Administration Tape No E 2, Segment 1, Conversation No. 741-2 19 National Security Act. 1947. 50 U.S.C. Section 403(d) 147

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to head a commission to assess the domestic activities of the CIA and to propose recommendations for reform. Congress set up two major investigative co mmissions of its own; the Church Committee led by the presidentially ambitious Senator from Idaho, Frank Church, and the House of Representatives’ committee chaired by Representative Otis Pike (Ford 1979, 265). A clear division of labor emerged, however , as the Rockefeller Commission was charged with a review of the domestic activities of th e intelligence agencies while the congressional committees focused upon their activities abroad. Nevertheless, Ford was concerned that Congress was trying to take over control of the CIA as an executive branch agency and to dismantle it. Ford made his position clear in a statement before a joint session of Congress in April 1975. As Congress oversees intelligence activities, it must, of course, organize itself in a responsible way. It has been tr aditional for the Executive to co nsult with the Congress through specially protected procedures that safeguard essential secrets. But recently, some of those procedures have been altered in a way that makes the protection of vital information very difficult. I will work with the leaders of the House and the Senate to devise procedures which will meet the needs of the Congress for review of intelligence agency activ ities and the needs of the nation for an effective intelligence service (Ford 1979, 266). Ford needn’t have worried. Between 1950 and 1974 two-hundred bills were introduced which sought to increase the accountability of the intelligence community to Congress. None were passed (Clark and Neveleff 1984, 495). A m odest proposal, which became known as the Hughes-Ryan Amendment, provide d that the president should inform Congress in a timely manner if the CIA were conducting foreign operati ons that went beyond normal intelligence gathering activities was passed in 1974. The Hughes-Ryan Amendm ent came in the aftermath of 148

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the startling disclosure that the CIA had been directing a clandestine a nd unauthorized war in Laos. Although limited in scope, it did act as a break on some of the more exotic foreign activities of the CIA, but had not hing to say about the fraught issue of domestic intelligence gathering (Ford 1979, 494-495). Overall, however, Congress had found itself to be largely incapable of legislating the activities of the in telligence agencies of the United States. As the Virginia Law Review puts it defining the statutory authority of the CIA has proven uniquely difficult because if the problems inherent in the functioning of a mode rn intelligence agency within the constraints of a democratic society (P.B.S. III 1976, 334). As the investigations in both the House and the Senate wore on throughout 1975 and into the spring of 1976, President Ford issued Executive Order 11905 on February 18th, 1976 which tightened oversight of the intelligence agenci es, better defined their domestic role, and banned political assassination.20 The terms of President Ford’s Ex ecutive Order closely followed the recommendations of the report of the Rockefelle r Commission although he wa s criticized for not going far enough in introducing congressional oversigh t to intelligence activities. It would take Congress another two years, and a new and more sympathetic president in the form of Jimmy Carter, however, before the Foreign Intelligen ce Surveillance Bill would be introduced to Congress incorporating much of the recommendations of the Church and Pike committees. The activities of the CIA dur ing the 1960s and early 1970s were a cause for concern to Congress, President Ford and th e American people. Watergate a nd the Vietnam War had jointly brought the intelligence services to the public’s attention. Un ease with expansive executive power created a climate ripe for action. At th e two hundred and first attempt, Congress had managed to secure a majority across both the Ho use and the Senate for the most pitiful of 20 Executive Order 11905. Weekly Compilation of Presidential Documents , Vol. 12, No. 8, February 23, 1976 149

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limitations on intelligence agency activity, the Hughes-Ryan Amendment. This did little more than require the presid ent to inform Congress when inte lligence agencies acting overseas exceeded the normal bounds of intelligence gatherin g; a requirement for notification rather than a restriction of that activity. For a variety of very good reasons Congr ess finds it extremely difficult to legislate, or even hold the executive branch accountable, on the issue of covert intelligence activity. The tame response of Congress, particularly the Senate, to President George W. Bush’s covert domestic surveillance program is evidence that the issue remains problematic to this day. In the face of congressional paralysis President Ford acted to implement the recommendations of the Rockefeller Commission which, while not exactly impartial, at least addressed the circumstances that had led to some of the gravest abuses of power by the intelligence gathering agencies. Was the president acting unilaterally in this case? I would argue that if he was, it was only up to a point. The remit of the Rockefe ller Commission, was to focus upon the domestic activities of the intelligence agencies. The res ponse of Congress in se tting up two committees of enquiry, both directed toward the overseas activities of the intelligence agenci es, is telling; the immediate interests of the constituents of members of Congress clearly lay in domestic matters, yet Congress left the domestic ar ena entirely in the hands of th e president and concentrated two years of effort on addressing the international ac tivities of the intelligen ce agencies. This is a curious reversal of the prioritie s that one would expect of me mbers of Congress. Yet Congress knew, from its difficult history of trying to legislate in this ar ea, that reaching consensus on the management, accountability and remit of the in telligence agencies was going to be tough, perhaps impossible, and certainly not timely. 150

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Prompt action was essential, however, since pub lic disquiet about the activities of the intelligence agencies had been prompted by a co mbination of the revelations in the press, particularly a series of artic les by Seymour Hersh that appeared in the New York Times in December 1974 and January 1975, the evidence of widespread domestic activity by the CIA contrary to most understandings of its remit, an d the still fresh revelations from the Watergate tapes of executive abuse of its control over the intelligence agen cies. In his memoirs President Ford expresses his concern that Congress would mount an ill conceived attempt to dismantle the nation’s intelligence gathering infrastructure, or to regulate it to the point where it would become useless (Ford 1979, 229-230,265-266,325,356). He makes no mention of any dialogue between the executive branch and congressional leadership on th e matter, yet a clear division of labor seems to have emerged. The president took prompt action to investigate the domestic activities of the intelligence gathering ag encies and regulated them by means of Executive Order 11905 as soon as the Rockefeller Commi ssion reported. Congress, meanwhile, investigated the overseas activities of the same agencies and, two y ears later, came forward with legislation.21 William Casselman, President Ford’s White House Counsel , pointed out during my interview with him that President Ford did not like to cross congr essional prerogatives unless he really had to.22 Because of Ford’s prompt action in the domestic ar ea, the area of most im mediate interest to the constituents of members of Congre ss, Congress was able to take tim e to distill the findings of the Church and Pike Committees into the Federal Intelligence and Surveillance Act 1978 (FISA), the first significant piece of legislation on the intelligence agen cies for twenty-eight years. 21 The Federal Intelligence and Surveillance Act 1978 22 Author’s telephone interviews with William Casselman August, September, October, 2006 151

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Coincidence? In the heady post Vietnam, post Wa tergate days of the 1970s such a coincidence seems unlikely. As we all now know, Vice Pr esident Al Gore did not invent; he merely “took the initiative in creating the Internet .”23 The rapid development of th e internet during the 1990s presented both Congress and the executive branch w ith the dilemma of how, and to what extent, the new technology should be regulated, taxe d and policed. Congress found the new technology particularly difficult to deal w ith; its early attempts to prot ect e-commerce from taxation, to update copyright laws to cope with the new technology and to regulate on-line gambling are outlined in detail by Richard Conley who describes the problems that Congress faced in arriving at coherent and enforceable law (Conley 2003). Congress struggled, and failed, to enact meaningful legislation to ensure the fundamental objective of univers al access to an internet that was being developed by private i ndustry. President Clinton and Vice President Gore seized the initiative and independently of Congress achieved a regulatory environment in which the internet could grow while universal access wa s assured. As Conley summarizes the White House was successful in promoti ng a research and development agenda by retooling an existing statutory framework wh en Congress failed to furnish a new one (Conley 2003, 144). Congress found itself equally unable to resolve th e knotty issue of on-line privacy, the key to which, in the late 1990s, was encryption technolo gy which enables the transmission of private information securely over the in ternet. Government restrictions upon the export of encryption technology were placing businesses in the Unit ed States at a competitive disadvantage yet Congress was unable to move legi slation through either the Hous e or the Senate. Eventually, “ under pressure from Congress ” President Clinton took steps to allow the exportation of 23 Interview with Wolf Blitzer on CNN's "Late Edition" program, March 9th, 1999 152

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encryption technology following review by the Commerce Department (Conley 2003, 153). The President would go on to provide solutions to issu es of privacy in on-line financial transactions and children’s access to adult orientated material on the internet. The rapid development of the internet duri ng the 1990s represented a classic recipe for congressional inertia; lack of jurisdictional clarity, pressure fr om competing interest groups, and the sudden emergence of an entirely new zone of public policy combined with the inherently obstacle strewn legislative process to make colle ctive decision making impossible. Presidential unilateralism provided the answer at numerous j unctures and allowed the rapid development of the internet to continue while addressing the common government objectives of universal access and continued private development. Conley (2003) refers to congressional pressure being applied to the President in the matter of internet privacy and it seems likely that congressional leadership and the President shared a number of common goal s, as well as seeing the need for prompt action, in the overall development of the internet. As such, his exam ple fits well with the idea of Presidential action providing Congress with the luxury of time to review and consider public policy alternatives in a manner similar to President Ford’s intervention in the reorganization and refocusing of the CIA. The point that president’s can act promptly and unilaterally while Congress must take on the laborious process of coali tion building in order to produce a majority or consensus on a particular issue is one that is often made. The rules of the House and Senate make it possible for well organized minorities to frustrate the objectives of the majority. Most often such arguments are made in the context of the ar gument that the president’s ability to act first provides him with a Constitutional advantage of being able to act fi rst and then to challenge Congress to retaliate (Krause and Cohen 2000, 90). It must be wrong, however , to assume that congressional silence is 153

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indicative of a lack of firm congressional opini on on an issue. Congress, particularly the leadership in Congress, is likel y to have an opinion on most matte rs of significant public policy even if it is unable to articulate its opinion into the formal vehi cle of a resolution, declaration or legislation. It would be equally wrong to assume that congressional silence always amounted to acquiescence in the actions of th e president. For thes e reasons it is necess ary to look beyond the simple fact of a lack of legislative response to an issue upon which the President has acted. What do the circumstances of congressional behavi or, short of a formal vote, tell us about congressional reaction? In the case of President Ford’s reorganizati on of the domestic activities of the CIA I have shown evidence of a clear demarcation of responsibility that developed between the congressional investigative committees and the President’s commission. The domestic abuses of the CIA which had come to light as a result of the Hersh articles and the Watergate tapes revelations were the matters that were of con cern to the public at large. Prompt action was needed. Congress has a long histor y of finding consensus on matters of intelligence difficult to achieve – that does not mean it does not have an opinion on th e subject. Congress took on the long term project of overhauling the internationa l activities of the intelligence agencies and enacted FISA in 1978. The President, meanwhile, tightened regulation of the domestic activities of the intelligence agencies th rough executive order. FISA di d not attempt to undo President Ford’s executive order, as it might have been ex pected to do had Congre ss been in substantial disagreement with it. We cannot tell whether this division of labor was the result of detailed consultation between congressional leadership and the President. However President Ford was a creature of the House of Representatives wher e he had been Minority Leader for nine years 154

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before becoming Richard Nixon’s Vice Presiden t in 1973 following the resignation of Spiro Agnew. Is it likely that this neat di vision of labor occurr ed spontaneously? Conley’s account (2003) of the development of regulation of the internet reads like a similar “joint venture” arrangement between c ongressional leadership and President Clinton. Where Congress found itself unable to express its will it would ask the President to act unilaterally. On other occasions the President would act to advance the development or regulation of the internet on hi s own account. Again, we cannot tell precisely what the nature of the communication between Congress and the Pr esident was on this po licy issue through the 1990s, but the neat division of labor looks unlikely to have occurred spontaneously. Where policy is developed in tandem by Congr ess and the President, as in the two cases cited in this section, I do not believe that a sustainable case can be made that the President is acting unilaterally. Still less sustai nable is an argument that the President is circumventing the congressional legislative prerogative in circumstances such as these. Congressional Delegation to the President any delegation to the executive of authority to act on matters on which the Congress has customarily acted is a shift of power from the legislativ e to the executive branch.” (Sundquist 1981, 12). Sundquist (1981) regards any discussion concer ning the difference between congressional delegation and the abdication by Congress of its Constitutional responsibilities as simple semantics; any delegation of au thority by Congress is, for him, an abdication. Fleishman and Aufses suggest that the system of separated powers prohibits the dele gation of power from one branch of government to another (Fleishman and Aufses 1976, 14). McCubbins (1990) argues that congressional delegation occu rs when Congress retains the ulti mate authority to make policy decisions, even if it chooses not to make such decisions. For McCubbins, abdication occurs if Congress gives up its influence on how policy, in a particular area, is made (McCubbins 1990, 155

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133-153). Scholarly reservations notwithstanding, the Courts have tended to uphold the right of Congress to delegate authority to the executive branch but have been inconsistent in their determinations of what constitutes an acceptable degree of delegation. It is also unclear, although perhaps irrelevant for all practical purposes, whet her the Courts have accepted that some, at least, of the responsibil ities and authority delegated by Congr ess to the executiv e is essentially legislative in nature, or whether powers so de legated cannot be legislative because legislative delegation is not permissible. Whatever the outcom e of that particular co ncern, the Courts have established tentative guidelines for delega tion of powers by Congress to the executive. Fleishman and Aufses (1976, 15) describe the three principles of acceptable congressional delegation as follows Powers may only be delegated to other publ ic officials, not to private agencies; The policy to be implemented must be clearly defined by Congress; and Congress must provide a clear set of standards to regulate the actions of administrative officials. Clear standards are essential to accountability. The Courts have decided recent cases involving disputes over the permissible extent of congressional delegati on, or the conduct by the executive of powers delegated to it, on the basis of two questions ; firstly, whether the standards laid down by Congress are adequate to ensure that public po licy is being made by elect ed officials, and not by civil servants, and, secondly, th at the terms of the delegati on provide the Courts with a yardstick against which to meas ure the performance of those to whom the authority has been delegated.24 In considering whether presidents acting upon the authority that has been delegated to them by Congress can truly be de scribed as acting unila terally, the debate over the permissible 24 See the judgment of Mr. Justice Harlan in Arizona v. California . 1963. 373 U.S. 546, 626 156

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extent of delegation clearly has some relevan ce. If Congress has delegated authority to the executive in a clearly defined manner and with cl early articulated standards of performance, as the guidelines proposed by Mr. Justice Harlan prescr ibe, then it is very difficult to see how the president, when acting on such delegation, can be seen to be acting un ilaterally. His terms of reference have been clearly defined by Congress, his policy objectives have been defined for him by the legislative branch. How mu ch congressional delegation m eets Justice Harlan’s criteria however? Does every instance of congressional delegation provide clear policy objectives and objective performance criteria? It would defy hum an nature to imply that every instance of congressional delegation is so neatly prescribed , or that there is not endless scope for executive interpretation and reinterpre tation of policy and policy impl ementation. Thus Congress will, from time to time, delegate authority to the executive on terms which are imprecise, or which may even constitute an illegal a bdication of their legislative func tion. Just because imperfections may exist, however, does not mean that we can sustain an argument that congressional delegation to the executive inevitably, and invari ably, amounts to an inv itation for presidential unilateralism in defiance of the will of Congress. The Supreme Court has established guidelines which it considers are appropriate to define the legal extent of C ongress’ ability to delegate its functions to the President. Yet the schedules of significant executive or ders complied by Kenneth Mayer (1999), William Howell (2003) and Adam Warber (2006) make no distinction between executive orders that rely upon the president’s Constitutional authority and those which refer for their authority to statute. Where delegation is made in accordance with the Supreme Court guidelines it is, in my analysis , impossible to argue that the president, in implementing the delegated powers, is acting unilaterally. Let’s consider some examples. 157

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Congressional Delegation — Richard Nixon and the Economic Stabilization Act 1970 I will not take this nation down the road of wage and price controls, however politically expedient that may seem. They only postpone the day of reckoning, and in so doing they rob every American of an important part of his freedom (Fleishman and Aufsus 1976, 26). In a June 1970 radio address, Richard Nixon’s rej ection of wage and price controls to stabilize the errant economy of the early 1970s was emphatic. Congress had other ideas, but was reluctant to take the political heat for in troducing regulations to restrict wage demands and price increases. In August 1970 Congress forced upon a reluctant President the authority to introduce wage and price controls under the Economic Stabilization Act of 1970. Chairm an of the Federal Reserve, Arthur Burns, a Nixon appointee described Congre ss’ action as giving the President “virtually dictatorial power” while Senator William Proxmire complained that the legislation empowered the president while providing “virtually no c ongressional safeguards or criteria on how the authority should be used and no legal safeguards for affected parties.” (Fleishman and Aufsus 1976; quoting Salamon 1975). The Courts disagr eed with Burns and Proxmire. When Nixon finally acted, issuing an executive order on August 15th, 1971 using the powers conferred upon him by Congress he was promptly challenged in the Court by the Union of Amalgamated Meat Cutters.25 The butchers lost; the Court decided that Congress had “su fficiently mark[ed] the field within which the Administrator is to act so that it my be known wh ether he has kept within it in compliance with the legislative will. . . we cannot say that there is such an absen ce of standards that would be impossible to ascertain wh ether the will of Congress has been obeyed.”26 From any reasonable reading of the 1970 Act, it must be concluded that the Court had set a low bar for congressional exactitude in delega tion. The court itself admitted as much; “This 1970 Act gives broadest latitude to the Executive.” (Fleishman and Aufsus 1976, 28). The Act 25 Executive Order 11615 26 Amalgamated Meat Cutters & Butcher Workmen v. Connally, 1971. 337. F. Supp. 737 (D.D.C. 1971) 158

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authorizes the President to set wages and prices at a level not lower than that which prevailed on May 25th 1970 but allows him to make exceptions in order to “prevent gross inequities.”27 The President is not permitted to single out particular industries for special treatment unless he finds it appropriate to do so after taking into account the seas onal nature of the employment , the rate of employment or unemployment, and other mitigating factors, de termines that prices or wages in that industry. . . have increased at a rate which is grossly dispropor tionate to the rate at which prices or wages have increas ed in the economy generally.28 At first glance these may seem like fairly rigid criteria for the deployment of wage and price controls by the President. However phrases such as “pre vent[ing] gross inequities” is substantially a matter of opinion – one President’s gross inequity is another’s fa ir and reasonable exception. Similarly, while section 202 (b), quoted above, would seem to set a clear and reasonably precise outline within which presiden tial discretion may be exercised, the section only requires the President to take the matters re ferred to into account, he does not need to base his decision upon them. Fleishman and Aufsus (1976) conclude that the words of the Act itself were not what gave the court sufficient co mfort to deny the butchers’ their case; To sustain the congressional delegation and th e executive order issued under it, it [the court] sought only the minimal exercise of congressional will, some indication that Congress had deliberated the Act carefully – some assurance that the “whole program” had not “been set adrift without any rudder.” From the history of the legislation and the record of previous statutes the cour t found the sense of congressional direction that it sought, the barest fragments of a guiding “rudder” By so doing, it maintained the modern tradition of upholding broad delegations of congressional power (Fleishman and Aufsus 1976, 31). The real game afoot, of course, was not a matter that the courts took into account. The Exchange Stabilization Act was all about the allocation of responsibility for a polit ically, and electorally, unpopular policy ahead of the 1970 mid-term elec tions. The economic conditions of the time 27 Economic Stabilization Act 1970. Section 202 (a) 28 Ibid. Section 202 (b) 159

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were poor and getting worse. The United States wa s running a substantial trade deficit while at home unemployment and inflation rates were running high. An expensive war was being fought in Vietnam and America was in the midst of a distinctly hot phase of the Cold War. American manufacturing industry was under siege from cheaper, and often better made, foreign imports, primarily from Japan. Worsening economic conditions across the globe were resulting in a “gold drain”; since 1944 and the Bretton Woods ag reement the United States had acted as de facto guarantor of the international monetary system by allowing the dollar to be converted into gold at a fixed rate of $35 per ounce. By 1970 this dollar convertibility was becoming difficult to sustain and, in August 1971, Nixon allowed the dollar to “float” on the international currency markets to ease pressure on the U.S. economy (Hoff 1994, 138-144). After various attempts to reinvigorate the economy over the course of 1969 and 1970 had failed, including the invoking of the Davis Bacon Act to curb wage inflation in the construction indus try, Nixon was finally prepared to consider the applic ation of wage and price controls that Congress had delegated to him.29 He was, however, a late and reluctant convert. The idea of denying workers the right to free collective bargaining for their wages and conditions of employment was anathema to a Republican president. Government regulation of the prices that manufacturers could charge for their goods struck at the very heart of the Republi can political base. Since all other measures had failed, however, short term wage and price cont rols became an option that was increasingly difficult to resist. The trouble was, they were likely to be almost universally unpopular. Congress, realizing this, was happy to delegate responsibility, in the form of authority, to the President. As an added bonus, the Democratic ally controlled Congre ss was able to foist 29 The Davis Bacon Act 1931 provides that all significant government sponsored or assisted construction contracts must pay wages to construction workers at the rate and with the benefits prevailing in similar private projects in the same locality. This requirement can be suspended by the President in circumstances wh ere he considers it expedient to do so. Nixon invoked the Davis Bacon Act suspension provisions for 28 days in February 1971 in an effort to reign in inflation. 160

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responsibility for the policy onto a Republican president. A contemporary commentator explains the politics of the situation thus the idea, in short, was to put the President on the spot, to place squa rely on his shoulders the politically unpopular chore of imposing wage and price controls while relieving the Democrats of any responsibility for the st ate of the economy in anticipation of the upcoming November 1970 elections (Fleishman and Aufsus 1976, 27). Nixon resisted the pressure to act as long as pos sible waiting for more than a year, and putting the 1970 elections safely behind him, before finally drinking from the poisoned chalice that Congress had gifted to him. It is impossible, in my view, to argue th at President Nixon was acting unilaterally when he implemented wage and price co ntrols using the powers that C ongress had delegated to him in the Exchange Stabilization Act. He had made his distaste for government imposed wage and price regulation clear since before the Act was passed, he resisted its use for more than a year, and he tried every other conceivable means of controlling the economic downturn of the early 1970s before finally taking up the power that Congress had given him. Congress wanted to distance itself from the policy, leaving the presid ent to take political responsibility for the unpopular measures, preferably at a time that wo uld maximize the Democrats political advantage in the 1970 elections. Two points arise from this consideration of the Exchange Stabilization Act; firstly, the Courts are inclined to support c ongressional delegations of power to the executive branch where they can see that Congress has deliberated to a reasonable extent before hand. Secondly, congressional delegation of authority to the pres ident is not simply a matter of administrative or legislative expediency. It can have highly political motivations as well. As an example of presidential/congressional consu ltation and cooperation, the wage a nd price stabilization regime is a poor example. Congress delegated authority to the president over his objections; consultation 161

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perhaps, but not much cooperation. As an instan ce of congressional delegation however, it shows that Congress can be strategic as well as cooperative when it delega tes authority to the president. Nixon was undoubtedly the focus of public hostility to wage and price controls, even though they were not his idea. Congress neatly deflected responsibility for an unpopular policy on to the president. This was a relatively tame beginning to the struggle for supremacy that was to develop between the Nixon White House and Congress over the course of the next three years. Congressional Delegation — President George H.W. Bush and the Ending of Sanctions Against South Africa During the summer of 1991 the South African government led by Prime Minister F.W. de Klerk repealed the Population Registration Act of 1950. the Act had required the registration at birth of each and every South African citizen in accordance with their “racial characteristics” and designated three distinct racial categories; white, black, and colored. Social, political and economic status, as well as access to education, was largely determined thereafter by the nature of an individual’s classifica tion. In 1986 the United States’ C ongress had overturned President Ronald Reagan’s veto to enact the Comprehens ive Anti-Apartheid Act which ordered economic sanctions against South Africa and established a set of pre-conditions for political and social reform before directing the pr esident to lift the sanctions.30 Notwithstanding the president’s dominant role in the conduct of the foreign policy of the United States, Presidents Reagan and Bush found themselves in distasteful charge of a policy toward South Africa which was authored by Congress. With the repeal of the Population Registrati on Act combined with other measures already taken by the de Klerk government in South Afri ca, including the releas e of Nelson Mandela the previous February, the Bush Stat e Department were ready to decl are that the pre-conditions for 30 Comprehensive Anti-Apartheid Act 1986 PL 99-440 162

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lifting the sanctions had been me t. Not everyone agreed, including Nelson Mandela himself, that de Klerk had done enough to satisfy the conditions that Congress had established for relaxation of the sanctions. Bush, therefore, moved cautious ly. Herman Cohen, Assistant Secretary of State for African Affairs was dispatched to Cap itol Hill for two weeks of consultation with congressional leadership to negotiate the President’s lifting of sanctions.31 By July the Bush White House was in more bullish mood. It became cl ear that the pro-sancti ons lobby in Congress were not going to be able to muster enough support to challenge the President’s decision to lift sanctions allowing Bush to be able to claim th at he had “no choice” in the matter – the 1986 Act prescribed five conditions for the lifting of sa nctions, those five conditions had, according to the State Department, been met. Therefore, accordi ng to the direction issued to the President by Congress in the form of the Comprehensive Anti-Apartheid Act of 1986, the President was obliged to lift the sanctions.32 In this case Congress had taken a foreign policy stand, over the veto of President Ronald Reagan, which prescribed a regime of economic sanctions against South Africa and described the circumstances in which the President would be entit led to remove the sancti ons. As it turned out, the President was probably able to fudge the pre-conditions somewhat, but he was only prepared to do so after consultation with Congress to determine the extent of opposition. Once satisfied that Congress would not respond, Bush was able to declare the removal of sanctions and claim that he was only acting in accordance with the inst ructions that Congress had given him. It was a neat move not often achieved during the Bush ad ministration’s usually difficult relationship with Congress. Bush was able to claim credit for removing sanctions among those who were opposed 31 Major Garrett, “Bush Sure To Lift Some Sanctions on South Africa,” The Washington Times , June 19, 1991. 32 Comments of the President quoted in Major Ga rrett, “Bush Can Lift Sanctions, Hill concedes,” The Washington Times, July 10, 1991. 163

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to them while, at the same time, placing the bl ame upon Congress for those who preferred to see the sanctions remain. All of this was achieved, however, through a process of consultation and negotiation with Congress. The t one of the administration’s rhet oric became distinctly more robust over the period from June to July 1991 as it was realized that the Democrats in Congress were not sufficiently unified on th e matter of South African sancti ons to resist the President’s action. They knew this from the consultations with Congress that were taking place. Is this Presidential unilateralism? The sanctions regime was imposed by Congress upon a deeply reluctant President Reagan. They were suspended following a combination of progress by the South African government which allowed Presid ent Bush to claim that Congress’ conditions for relaxation of sanctions had been substantially met and a mixed mood in Congress which was not prepared to argue otherwise. Had Congress ta ken a firmer line, had the Democrats remained united on the matter, as they had with the passa ge of the original Ac t in 1986, the President would have found it much more difficult, perhap s impossible, to act. In the circumstances, however, the President’s action was far from unilateral. The president implemented a policy which had been laid out in statute by Congress. Whether the standards th at Congress had set for the lifting of sanctions had been met was a matter of some consultation and a degree of disagreement, but they still acted as a very real constraint upon the actions of the President. Ultimately, the mood of Congress coalesced around the feeling that it was, after all, probably time to end the sanctions regime and the Presid ent took advantage of that mood to move the matter forward more quickly than it might ot herwise have progressed. Cooperation, albeit reluctant, and consultation led to the lifting of sanctions by the pres ident but this surely cannot be described as presidential unilateralism. 164

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The President and Congress Acting in Concert It is the premise of this research that presidents who implement significant developments in public policy using their unilateral powers will commonly do so in cooperation with congressional leadership. Equally, given presidential leadership in setting the legislative agenda of congress, the president’s imprint is likely to be found on much of the legislative output of Congress. Congress, for its part, is likely to be ill-served by ignoring the views of the president who will ultimately implement the laws that it passes. If we chose to explain this in institutionalist terms we can point to the strict limitations on pr esidential unilateral power, both legally and politically, as they are describe d in Chapter 5, and the common goal of both the president and Congress to implement good public policy; they may disagree on what constitutes good public policy however. These limitations suggest that the president a nd Congress are likely to reach a rational decision to work together in order to develop public policy. From the president’s perspective, the fact that his authority is confined to the activities of the executive branch, the fact that a ny unilateral action he takes may be undone by his successors, the fact that unilateral action may be taken as a sign of political weakness by other “ Washingtonians ”33, and the fact that his unilate ral action may be reversed by Congres s or by the Courts all combine to make action with, rather than against, Congr ess the preferable opti on. However, we do not necessarily need to apply rationa l choice theory to explain pres idential and congressional action where they cooperate together to achieve public policy outcomes. It is simply an extension of the Constitutional design, the system of “separated in stitutions sharing power” or, as I would suggest separated institutions negotiating outcomes (Neustadt 1990, 30). No law is passed in the United 33 The phrase “ Washingtonians ” derives from Richard Neustadt’s book, Presidential Power , 1990, and is used to describe those with whom, in Neustadt’s scenario of pr esidential power being the power to bargain, the president will conduct bargaining and among whom he must strive to maintain the essential characteristics that enhance his bargaining capabilities. 165

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States without the imprint of bot h the President and Congress, even if the president’s only stamp is a veto message that is subsequently overridden by Congress. It is, of course, impossible to be definitive, on the basis of the research carried out to date, to say that all public policy in the United States is developed through some form of partnership betw een the president and Congress, but it is my argument that the presid ent will seldom, perhaps never, enact major public policy initiatives using his unila teral powers without cl ose consultation and cooperation with the leadership in Congress. By similar token Congre ss is incapable of enacting public policy without the final imprimatur of the pr esident and, in the modern er a, Congress will rely upon the president to articulate much of the le gislative program that it will consider. Solid examples are essential to make the case for this bold assertion. I have already referred to President Richard Nixon’s China policy a nd the regular conferences that he held with Senate Majority Leader Mike Mansfield as a striking example of the President and Congress cooperating and consulting on what has, hitherto, been understood as a bold example of presidential unilateralism. I now expand that list to include examples from each president from Presidents Kennedy through Clinton, the forty ye ars and eight administrations from 1960 to 2000. The current administration of President George W. Bush is considered in detail in Chapter 8. Presidential/Congressional consultation, coop eration and delegation — From Roosevelt to Johnson and the development of Affirmative Action Kenneth Mayer presents the following thesis my thesis is that presidential initiative play ed a decisive role in broadening the scope of civil rights policies, in a sequence of increasingly effectiv e presidential responses, which ultimately pulled along both the courts, and Congress (Mayer 2001, 185). Many scholars point to executive action in the field of fair em ployment practices as clear evidence of the efficacy of presidential unilate ralism against the prev ailing will of Congress 166

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(Mayer 2001; Graham 1990; Morgan 1970). They credit Lyndon Johnson’s Executive Order 11246 with establishing a national policy of affirm ative action; the execu tive order is “the standing source of the federal mandate for affi rmative action” (Graham 1990, 187). Title VII of the Civil Rights Act 1964, which finally ensh rined a national policy of equal employment opportunity, is described as the congressional affi rmation of two decades of executive unilateral action (Mayer 2001, 216). How close to the truth is this analysis, a nd is fair employment at last an example of effective pr esidential unilateralism? Franklin Roosevelt is ofte n credited with initiating a national government policy of nondiscrimination in employment. Ex ecutive Order 8802, issued on June 25th, 1941, was titled “Reaffirming the Policy of Full Participation in the Defense Program by All Persons, Regardless of Race, Creed, Color, or National Origin, and Di recting Certain Action in Furtherance of Said Policy.” The executive order established a pol icy of non-discriminati on in employment for defense contractors and for government depart ments engaged in vocational training for the defense industry. The Committee on Fair Employmen t Practices (FEPC) was also established to police the new policy. Two years later Executive Order 9346 established a new version of the FEPC and further defined it powers and duties. The use of the word “reaffirming” in the title of the 1941 executive order is telling however. As Ruth Morgan puts it President Roosevelt and his successors did not have a tabula rasa on which they could write new policies of fair employment practices . They stepped into a stream of developing policy. Rather than innovation, th e pattern of Presidential ac tivity was one of incremental change – a reemphasis upon a mandate against discrimination and a search for adequate machinery to enforce this mandate (Morgan 1970, 30) The declarations of policies of non-discrimination in government employment dated back to the Civil Service Act of 1883 which d eclared that civil se rvice appointments should be made on the basis of “merit and fitness.” The Civil Service Commission did not in terpret this as requiring an active policy of enforcement however. The Ci vil Service Extension Act of 1940 included 167

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specific provisions for non-disc rimination in the civil servi ce. Other declarations of nondiscriminatory practices in government employme nt were made before the Second World War, but no system of enforcement existed until af ter the war (Morgan 1970, 28-59). Subsequently, presidents from Truman to Kennedy each used Executive Orders to achieve incremental developments in the fair employment practices of government agencies and among government contractors. Morgan reports a total of eight Executive Orders directed at fair employment practices over the twenty y ears beginning with Roosevelt in 1941 and ending with President Kennedy’s Executive Order 10925 in 1961. None of thes e orders were challenged in the Courts and none were challenged by congressional action. Congress had legislated on the matter of nondiscrimination in civil service appointments in 1883 and again in 1940 but in both cases the ex ecutive branch failed to put the provisions into meaningful practice. Between 1942 and the eventu al passage of the Civil Rights Act 1964, with the fair employment provisions co ntained in Title VII, Morgan reports many attempts to pass fair employment legislation in Congress, all of whic h were defeated by procedural obstacles. In the House, the Rules Committee never once released a bi ll for a floor vote. In the Senate bi-partisan efforts to enact a fair employment bill never came to a vote on the floor and the Senate Judiciary Committee, led by the Democrat and strict segreg ationist James O. Eastland, had become known as the “burial ground” for civil rights legislat ion (Loevy 1997, 28). Nevertheless, Morgan argues, “Congress tacitly approved the presidential actions by failing to pass legislation reversing them” and the House appropriated funds to enable the various presiden tial committees concerned with fair employment in government and among government contractors to function (Morgan 1970, 31 and 58). 168

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With Southern Democrats as fixtures at the helm of most of the important congressional committees, combined with the Senate filibuster ru les, meaningful civil rights legislation was always going to be difficult, if not impossi ble to achieve. Once Pres ident Kennedy and House Speaker Sam Rayburn had succeeded in packin g the House Rules Committee with members more inclined to release the president’s legislative program to the floor, the situation would be eased somewhat, but fearsome procedural obstacl es would remain in a Congress that tended to be under Democratic control and where a substantial element of the Democratic majority came from the South (Graham 1990, 31). This juxtapos ition explains, in my view, why Congress was unable to enact significant ci vil rights legislation before 1964, but was equally unable to challenge or constrain presidential efforts to de velop fair employment practices. Morgan reports “widespread support for fair employment legislati on” in Congress but “suppor ters were unable to get a law past procedural barriers.” (Morga n 1970, 34). The numerous attempts to overcome these barriers during the two d ecades before the 1964 Act was passed, combined with historical congressional nods in the direc tion of fair employment in the civil service, suggest that a significant number of members of Congress supported civil rights legislation. Presidents wishing to keep their overall legislative programs fl owing through congressional committees that were dominated by Southern Democrat s were naturally cautious about pushing forward legislation on civil rights for fear of derailing their entire program. However it is possible, I believe, to detect a mood of a acquiescence in Congress for the lim ited scope of presidential action on fair employment prior to 1964. My thesis is, therefore, quite the opposite of that of Kenneth Mayer (2001). Rather than a president pu lling a reluctant Congr ess along a path that would lead to the enactment of the Civil Rights Act 1964, I suggest th at the president and C ongress took that path together. Congress set the scene with legislation on non-discrimina tion in the civil service which 169

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the executive branch failed, initiall y, to take up. The exigencies of war led Franklin Roosevelt to take the issue of fair employm ent seriously and led to the first executive action on the issue. Steadily, over the course of th e next twenty years presiden tial action and congressional acquiescence (and support in the form of a ppropriations) would lead to incremental developments in the scope of fair employme nt practices in govern ment employment and government contracting. This, I furt her argue, is not pres idential incrementalism ; rather, it is the president and Congress working in concert to adva nce public policy, even in circumstances where procedural obstacles pr event Congress from articulati ng its position in the form legislation. Returning to Lyndon Johnson and the begi nnings of affirmative action, Johnson’s Executive Order 11246 entitled “Equal Employment Opportunity” follows the eight preceding executive orders going back to Roosevelt and Executive Order 8802 which developed a policy of non-discrimination in government employment and in government contracting. In fact Johnson’s order lifts its wording on federal contracts verbatim from Kennedy’s 1961 executive order (Graham 1990, 188). Title VII of the Civil Right s Act of 1964 established a national policy of non-discrimination in employment which was difficult to enforce. Reorganization of the ad hoc system of presidential committees that had grown up prior to the passage of the 1964 Act was now necessary as the wider bureaucracy of the federal government assumed responsibility for enforcement of the new fair employment provis ions. This was the primary aim of Executive Order 11246. The restatement of the wording from President Kennedy’s ea rlier executive order on government contracting is an intellectual curi osity, but the idea that government can best enforce civil rights by showing a lead and usi ng the “awesome power of the federal contract purse” is the key (Graham 1990). The inclusion of reference to “affirmative action” was not fully 170

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considered by the Johnson administration. As Hugh Davis Graham explains, “Affirmative action had simply not been fundamentally at issue in the tortured evoluti on of E.O. 11246.” (Graham 1990, 188). To bind Executive Order 11246 up with the later developm ent of the term “affirmative action” is misleading in the cont ext of trying to understand the why Johnson saw a need for the executive order. In terms of our review of presidential unilateralism, Executive Order 11246 shows little in the way of executiv e policy making independent of Congress. The main purpose of the order is to farm out responsib ility for enforcement of the provisions of the 1964 Act to government agencies and to close down the various committees which formed part of the Executive Office of the President and which had developed on an ad hoc basis over time. These committees had been doing an imperfect job since the Act was passed and Attorney General Nicholas Katzenbach was anxious to reorganize the whole federal enforcement mechanism. As an aside almost, the government contracting provisions of the earlier Kennedy executive order were restated. Title VII of the 1964 Act included the term “affirmative action” in the context of defining the lega l remedies that would be face d by employers who breached the fair employment provisions of the act; that is the reinstatement of persons who had left employment due to discrimination or the hiring of minority workers where none had previously been employed as a result of unfair employment practices. If we remove the affirmative action mantle which executive order 11246 has assumed since it was issued and instead concentrate upon its purpose to the reorganize the overly complex and demonstrably failing government enforcemen t mechanism, I do not believe that we can ascribe the notion of presidential unilateralism to it. 171

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Presidential/Congressional consultation, coop eration and delegation: John F. Kennedy and open housing The thorny issue of housing desegregation has al ready been considered in some detail as an illustration of the constraints faced by pres idents as they attempt to move public policy forward using their unilateral powers. The Presid ent clearly believed that executive action was the only viable means of progressing an open housing policy in the first two years of his administration. Fearing a logjam for his legislat ive program in Congress if more comprehensive civil rights legislation was proposed Kennedy dela yed presenting a Civil Rights Bill to Congress until June 1963. That bill did not attempt to codify, or expand, the limited terms of Executive Order 11063 which sought to desegregate publicly owned or funded housing. In fact the Civil Rights bill contained language that would spec ifically limit its impact on the housing market. The decision to pursue an executive action so lution to the question of open housing, and the decision to limit the impact of the Civil Right s bill on housing both came about as a result of extensive consultation betw een the White House and c ongressional leadership. Larry O’Brien confirms that the Kennedy execu tive order came about as a result of the administration’s belief that legislation of the is sue was not feasible. It was impossible to conduct a meaningful headcount of poten tial supporters without a piece of draft legislation upon which to canvas opinion, but consultations with congressional leadership confirmed that the prospects for successful legislation were practi cally non-existent. It was therefore agreed that the president would proceed with executive action on housing. O’Brien recalls I don’t think they [congressional leadership] ma de the suggestion [for executive action], but the leadership was in accord. There was a feeling that this was a good move to make and it could be productive.34 34 Transcript, Lawrence F. O'Brien Oral History Interview V, 12/5/85, by Michael L. Gillette, LBJ Library (accessed October 27, 2006). 172

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Six months after Kennedy issued his executive order, in April 1963, Hubert H. Humphrey, then Democratic Whip in the Senate, take s up the story. Humphrey recalls “innumerable meetings” which he attended together with the President, Attorney General Robert Kennedy and Senate Minority Leader Mike Mansfield as well as other lead ing Democrat and Republican Senators and House members at which the terms of a Civil Rights bill were discussed and agreed upon (Humphrey 1997, 77-91). By May, Humphrey repor ts, a consensus had been reached that a “rather comprehensive program” would be propo sed in the bill (Humphrey 1997, 79). Discussion centered upon whether the bill should include a fair employment provision, whether the President’s Committee on Equal Em ployment should be given statutory authority (Humphrey 1997, 79). The congressional leadership proposed a provision to cut off federal funding from programs that failed to act in a non-discriminatory manner (Morgan 1970, 75). The final form of the bill was not settled until shortly before the President issued his civil rights message to Congress. It was decided that th e bill should not contain equal em ployment provisions but that it should contain the leaderships’ sugges ted cut-off provision (Morgan 1970, 72). The Civil Rights Act 1964 was eventually passed on Friday June 19th,1964, after Kennedy’s assassination. Title VI of the 1964 Ac t did prohibit discrimination in federally assisted programs or activities. However it excl uded programs involving “a contract of insurance or guarantee.” This had the effect of excl uding construction lending which was guaranteed by federal agencies such as the FDIC or the FH LLB. The limited impact of President Kennedy’s Executive Order 11063 was not improved upon and th e vexed issue of housing desegregation would have to wait another four years for reso lution as Title VII of the Civil Rights Act 1968 (Morgan 1970, 76). 173

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The history of housing desegr egation provides us with clear evidence from primary sources that the White House a nd congressional leadership work ed together to shape housing policy and fair employment policy during the Kennedy administration. Larry O’Brien denies that the suggestion to deal with housing by means of presidential unilate ralism came from the congressional leadership, but he is clear that they we re involved in and approved of the strategy. Hubert Humphrey provides a ring side account of the negotiations that took place between congressional leadership on both sides of the aisle, the White House and the Department of Justice to shape the bill that would become th e Civil Rights Act 1964. Congressional leadership, anxious to keep the bill as clean as possible agreed with the President on issues that could be best dealt with by executive action. The open housing provisions were a step too far for northern the Republicans in the Senate, led by Majority Leader Everit Dirkson, and so executive action was the only means of making any progress on that issue. The decision, however, was made collectively between congressional leadership and the executive. Presidential/Congressional consultation, c ooperation and delegation — Carter, China and the battle for Taiwan Shortly after his election vict ory over Gerald Ford in 1976 Pr esident-elect Jimmy Carter invited Secretary of State Henry Kissinger to meet with him in Plains, Georgia, to discuss the international situation that Carter would inherit in a few short weeks. Carter was particularly interested to learn about U.S. relations with Communist China (referred to as the People’s Republic of China or PRC) and how they had de veloped following Richard Nixon’s historic visit to Beijing in 1972. The answer was that not much had happened since. Political instability among the leadership in both Chin a and the United States had blunt ed forward progress and little new had been achieved. As far as the United States was concerned, diplomati cally it continued to recognize the exiled government of the Republic of China (ROC or Taiwan) as the legitimate 174

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Chinese authority. Carter recognized that this si tuation could not be allowed to continue and he kept resolution of the Chinese s ituation close to the top of his crowded foreign policy agenda throughout the first year of his presidency (Carter 1982, 186-193). The problem was what to do about Taiwan. The commercial, cultural and milita ry ties between the United States and Taiwan were extensive. Carter had been brought face to face with the political power of the proTaiwanese lobby during his campaign when friends and family in his home town of Plains, Georgia, were showered with offers of lavish expense paid trips to Taiwan (Carter 1982, 188). Some took up these offers much to Ca rter’s embarrassmen t and irritation. Carter quickly rejected the strategy of rec ognizing both the PRC and Taiwan as separate states. This would cause complica tions with Beijing, potentially derailing the entire policy and undoing what diplomatic progress had been made to date. Therefore the normalization of relations with the PRC necessitated formal rec ognition by the United States of the PRC as the sole government of China. This, in turn, necessitated the termination of Mutual Defense Treaty with the United States had signed with Taiwan in 1954 and which was the basis for the American defense guarantee of Taiwan. Terminating the 1954 Treaty would be guaranteed to motivate the powerful Taiwan lobby in Congress and in the country at large. The problem was compounded by the fact that Congress, in anticipation of m oves to recognize the PRC included a provision in the International Security Assistance Act 1978 which read it is the sense of the Congress that there should be prior consultation between Congress and the executive branch on any propos ed policy changes affecting th e continuation in force of the Mutual Defense Treaty of 1954.35 Initial diplomatic approaches to the PRC were halting and difficult to read. The Chinese enthusiastically accepted a request to send a cong ressional delegation to visit the PRC in March 35 International Security Assistance Act. 1978. 92 Stat. 746 175

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1977.36 This was followed up with arrangements for S ecretary of State Cyrus Vance to visit the PRC the following August.37 The PRC leadership was in a stat e of transition ove r the course of the first three quarters of 1977 and diplomatic pr ogress continued to be slow and difficult. The U.S. Ambassador in Beijing was a Republican party elder and had taken the job reluctantly at the personal request of President Gerald Ford. His relationship with the new Carter administration was distinctly strained. Carter’s China point s man, Michael Oksenberg, recorded his underwhelmed impression of the Ambassador in a memo to Zbigniew Brzezinski: “I met him in Peking and found him mildly insightful.”38 Carter himself then set matters back with a jocular allusion to the existence of “two Chinas” at a press conference in May requiring the urgent dispatch of Senator Mike Mansfield to the PRC Liaison Office to repair the damage caused by the president’s gaffe.39 In October the PRC Foreign Minister , Huang Hua, was due to visit New York to attend a summit at the United Nations. Scrambled attempts were made by the Carter administration to arrange a meeting with Hua ng while he was in New York. The attempts degenerated into farce with the Carter team unabl e to schedule the meeting before Huang left for a summit in Ottawa, Canada.40 In the meantime Michael Oksenberg tried to make some sense of the claims and counterclaims between the Unite d States and PRC over financial claims and counter-claims for seized assets that took place following the Ch inese Communist revolution in 36 Memorandum: Michael Oksenberg to Zbigniew Brzezins ki, March 28, 1977. “congressional Delegation to China.” Carter Presidential Library 37 Memorandum: Zbigniew Brzezinski to Mike Armacost , April 13, 1977. “Vice Presidential Involvement in Exploratory Talks with Chinese in Peking.” Carter Presidential Library 38 Memorandum: Michael Oksenberg to Zbigniew Brzezinski, May 25, 1977. “A mbassador Thomas Gates’ Return from Peking.” Carter Presidential Library 39 Memorandum: Michael Oksenberg to Zbigniew Brzezinski, May 16, 1977. “M ansfield Conversation with Huang Chen about Presidential News Conferen ce.” Carter Presidential Library 40 Memorandum: Thomas P. Thornton to Zbigniew Brzezinski, September 27 , 1977. “The Hua Non-Meeting and Sino-U.S. Relations: A Polemic.” Carter Presidential Library 176

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1948. In an effort to outline to issues to Br zezinski, Oksenberg commented “I thought you would appreciate a summary of the pr oblem (Kissinger always said three hours after understanding the issue, he’d forgotten it again. I understand why.)”41 By the beginning of 1978 both sides had set tled down into a more stable pattern of communication and negotiation which was beginning to bear some fruit. Secrecy was everything at this stage, partly because the Chinese were so sensitive about the process and partly because the Carter administration did not want to reveal the negotiation process to Congress until a firm deal had been struck with the Chinese. Carte r’s White House Counsel Robert Lipshutz outlines why the key was to avoid the institution of litig ation until after we ha d formally recognized China. This was important psychologically with the Courts and also diplomatically.42 The fear of litigation was real and proved to be accurate. However Carter also had to attend to the statutory requirement, contained in the International Security Assistance Act 1978, that Congress be consulted prior to termination of th e Taiwan security guarantee. There was also going to be a need for Congress to promptly pa ss detailed legislation wh ich would enable the continuation of commercial and di plomatic relations with Taiwan after the formal recognition of the PRC as the legitimate, and sole, government of China. Timing, clearly, was going to be everything. On December 13th, 1978 the Chinese and American delegations agreed the final terms of the communiqu which would announce the normalization of relations. Carter and his senior aides had two days to notify and consult with key members of Congress, before formal public announcement by both sides on December 15th. By December 14th, 1978 Carter was able to write in his diary 41 Memorandum: Michael Oksenberg to Zbigniew Brzezinski, May 3, 1977. “The Claims/Assets Issue With the PRC.” Carter Presidential Library 42 Author’s telephone interview with Robert J. Lipshutz. May 2006 177

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the excitement is building up concerning norma lization with China – whether we can keep it secret or not. We’ve decided to notify the Soviets and Taiwan, Japan and our main European allies early tomorrow. By then, more than 100 people in our government will know about it (Carter 1982, 199). The following day Carter announced publicly that United States would formally recognize the PRC, and gave the required twelve months noti ce of the termination of the Taiwan security guarantee treaty, on January 1st, 1979. The litigation followed promptly; before th e year was out a group of 25 Senators and House members led by Republican Senator Barry Goldwater challenged Carter’s ability to unilaterally terminate the Taiwan security guaran tee treaty. The Supreme Court finally resolved the case in Carter’s favor finding not only that the President had the unilateral authority to terminate the treaty, but also that Goldwater a nd the other members of Congress had no basis to seek judicial review of the President’s acti on “unless and until each branch has taken action asserting its constitutional authority.”43 Since the Senate had fa iled to act upon a resolution condemning Carter’s action, and since the House ha d failed to act at all, the Court found that “there had been no confrontation of the Presid ent’s exercise of power by the Senate or by Congress.” Justice Powell added, however, that “i f Congress or the Senate had acted and the case was ripe, the issue would be justiciable, and not a political question.” (Evans 1980). In other words, if Congress had challenged the President and the President had failed to yield, the members of Congress would be entitled to s eek resolution through the Courts. Since Congress had not challenged the President’ s action, the matter could not be considered in the Courts. Was Carter acting unilaterally when he recognized the PRC as the legitimate, and sole, government of China and when he terminated the security guarantee treaty with China? Clearly Congress had anticipated the forthcoming diploma tic rapprochement with China as evidenced by 43 Mr. Justice Powell in Goldwater v. Carter. 1979. Civil Action No. 78-2412 (DDC Oct. 17, 1979) 178

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the provision that it inserted into the In ternational Security Assistance Act 1978. The negotiations were conducted in secret by the executive branch with key members of Congress not being consulted until two days before th e formal public announcement of the new policy. The public announcement came more than two week s before the new policy would come into effect. In these circumstances it is, in my view , difficult to argue that the President was acting unilaterally. The logical conc lusion of Nixon’s opening to China in 1972 was eventual diplomatic recognition of the PRC. Halting steps ha d been made in that direction ever since. Congressional delegations had visited China in April and November of 1978, indicating at the very least a degree of discu ssion between the two governments. Carter was on notice from Congress that it expected to be consulted prio r to the inevitable term ination of the Taiwan security guarantee and he did consult. Even af ter the new relationship was made public Congress had more than two weeks in which to register its disapproval – it failed to do so. Ultimately the Goldwater led litigation failed because the Court considered the matter to require a political, rather than a legal, solution. It is impossible to argue that Congress did not see diplomatic recognition of the PRC coming, or that it faile d to anticipate the corresponding necessity to terminate the Taiwan security guarantee. It partic ipated in the overall process to the extent that congressional delegations visited China twice during 1978. It did not su pport the Goldwater led litigation and neither the Senate nor the Hous e passed any resolution on the matter, despite having ample opportunity to do so. In short, Congress cooperated in a policy process that fell within the jurisdictional ambit of the President an d with which it was in substantial agreement. Presidential/Congressional consultation, coop eration and delegation – President Clinton, Mexico, and the $20 billion back room deal As an act of presidential unilateralism Pr esident Bill Clinton’s decision to pledge $20 billion in financial aid to the government of Mexico at the beginning of 1995 is certainly among 179

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the most expensive and his timing might indicat e a surprising degree of chutzpah. Just two months before, the Republican Revolution had swept the Republicans to power in both the House, where they gained 54 seats, and the Senate where they gained eight. The newly installed Speaker of the House, Newt Gingrich (R-GA), and his Senate Majority Leader counterpart, Bob Dole (R-KS), were just beginni ng to welcome the freshmen Republicans to the Capitol where their party enjoyed control of the House and Sena te for the first time in forty years. A more unlikely setting for such expansive presidential unilateralism is difficult to imagine. Robert Rubin was also just finding the way to his new corner office in the Treasury Building. Sworn in on January 10th 1995 as Clinton’s new Secret ary of the Treasury, Rubin immediately met with the Presid ent to discuss the deterioratin g economic situation in Mexico. With $6 billion in its reserves and $30 billion in loan repayments due within a few months Mexico was facing economic “meltdown” (C linton, 2004, 231-242). Rubin, and his deputy Larry Summers, explained to the President that th e collapse of the Mexican economy could be expected to increase illegal immigration by as much as 30%.44 In addition Mexico was America’s third largest trading partner and its de fault on its debts could signal a financial crisis for other developing states like Russia, Latin America, Central Europe and South Africa. Rubin and Summers told the President th at Mexico could need as much as $25 billion in support if it were to have a chance of surviving the crisis. The President was persuaded on the need for ac tion but his closes advisers were not so sure. George Stephanopoulos, a senior policy stra tegist, and Chief of St aff Leon Panetta were cautious. Panetta advised the President that if th e bail out of Mexico failed it would cost him reelection in 1996. Alan Greenspan, Chairman of the Federal Reserve supported the plan. The 44 In his memoirs Clinton estimated this number at 500,000, putting total annual illegal immigration from Mexico at more than 1.5 million in 1995. 180

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President would, however, need cong ressional support in the form of legislation to put together the loan package that Rubin and Summers had r ecommended. He called congressional leaders to a meeting at the White House to advise them of the situation in Mexico and outline the Treasury Department’s proposals. At the meeting the bi-p artisan leadership in the House and Senate agreed with Clinton’s assessment and Treasury’s plan. Newt Gingrich desc ribed it as “the first crisis of the twenty-fir st century” and Bob Dole pledged his support in the effort to achieve a prompt legislative package (Clinton 2004, 233). De spite high profile support from senior Senators such as Chris Dodd, Bob Bennett, Tom Da schle, Dick Gephardt and Paul Sarbanes, it became clear, as Rubin and Summers toured Capito l Hill to sell their scheme, that legislation was not going to be possible. Anti-NAFTA De mocrats and newly elected Republican members were coalescing into an unlikely al liance that would certainly delay, if not kill, any attempt to get a bill through Congress. Mean while the Mexican currency had dropped another ten percent and her currency reserves were down to $2 billion. Gingrich and Dole called the President and told him it would be another two weeks before legislati on could be passed, if it could be passed at all. Urgent action was needed, and it was going to have to be made by the President acting alone. Rubin and Summers then came up with a plan to use the funds allocated to the Exchange Stabilization Fund to enable the President to act of his own authority to provide economic support to Mexico. The fund had been established in 1934 by Franklin Roosevelt to act as device to minimize currency fluctuations when he took the dollar off of the gold standard in the midst of the Great Depression of the early 1930s. The f und had around $35 billion available and could be used by the Treasury Secretary with the c onsent of the Presid ent. On January 31st Clinton announced $20 billion in economic support to Mexico which, combined with contributions from the International Monetary F und, the World Bank and other states, provided a combined aid 181

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package of $40 billion. A storm of protest erupted after the scheme was announced in Congress, the press and among the public. Polls indicated th at 70% of Americans opposed the President’s action. James Sheehan’s report in The Washington Times is typical of the press reaction to the news American taxpayers should be outraged at Mr . Clinton's use of a U.N. loophole to funnel taxpayer dollars to a foreign c ountry against their wishes. Like wise, the use of the Treasury Department's exchange stabilization fund is of questionable legality. As House Banking Committee Chairman Jim Leach admitted, "This will be a novel use of [exchange stabilization fund] resources." Mr. Clinton' s circumvention of Congress is an end run around the constitutional checks and balances meant to safeguard a free society. The leading politicians of both parties are actively thwarting the will of the people.45 The Washington Post followed a similar theme but also alluded to the role of congressional leadership in the scheme the critics — who included many House GOP freshmen — argued that Clinton had unfairly circumvented Congress, that he had not imposed adequate conditions on Mexico, that hearings should be called to explore the subject, and that the administration could have reacted more swiftly to Mexico 's economic crisis last year. But most of the congressional leadership c ontinued to stand by Clinton. House Speaker Newt Gingrich (R-Ga.) even praised the pres ident's "decisiveness" in taking executive action to bolster the Mexican economy after it became clear Congress was unlikely to approve the origin al bailout plan.46 The theme of the President having “ circumvented Congress ” dominated press coverage of the scheme. Kenneth Mayer uses this incident to introduce his study of executive orders in With The Stroke of a Pen (Mayer 2001). It is the poster child fo r studies of presidential unilateralism and the argument that presidents have the capabil ity to achieve significant legislative outcomes using their unilateral powers. How fair is it , however, to characteri ze Clinton’s action as unilateral ? The Exchange Stabilization Fund was estab lished by statute, the Gold Reserve Act of 45 James Sheehan, “Betrayal . . . or boldne ss in the bailout? ;Cause for outrage,” The Washington Times , February 3rd, 1995. 46 ____, “Hill Critics Assail Clinton Initiative to Bolster Mexico's Economy,” The Washington Post , February 2nd, 1995. 182

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1934. The Department of Treasury website provi des the following description of the Fund’s purpose and the authority required for its use the Department of the Treasury has a stabiliza tion fund . . . Consistent with the obligations of the Government in the International Monetary Fund (IMF) on orderly exchange arrangements and an orderly system of exch ange rates, the Secretary . . . , with the approval of the President, may deal in gold, foreign exchange, and other instruments of credit and securities.47 This is an example of congr essional delegation to the executive branch. The 1934 Act was amended by Congress in 1970 and money was cons istency appropriated for the Fund for more than fifty years. The president’s action was suppor ted by congressional leadership with whom he had discussed it beforehand. Despite the rhetoric of certain of its members, Congress made no attempt to restrain the Presiden t either through subsequent legisl ation or judicial review. Given the President’s novel use of the Exchange Stabil ization Fund to provide economic assistance to Mexico, Congress might have sought to amend the en abling legislation so as to prevent its use in this way in the future; it has not done so. Is this presidential unila teralism? I argue that it is not; rather it is clear evidence of the Executive bran ch and congressional leader ship working together to resolve an issue using the President’s unila teral powers in circumstances where legislation cannot be achieved. The President did not, therefor e, act unilaterally by any reasonable definition of the word. Concluding Thoughts Presidential/congressional c ooperation, consultation and delega tion are facts of political life. Whether we apply rational choice assumpti ons of utility maximization, or behaviouralist interpretations of presidential impotence and dependence upon Congress, it only makes sense that Congress and the president should coopera te in the development of public policy. The 47 /international-affairs/esf/ (accessed October 30, 2006). 183

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president’s constitutional limitations are real and C ongress has lost the abi lity, if it ever really had it, to be the leader in th e development of policy. Common se nse dictates that they should work in cooperation and consultation when they can. The delegation imperative that affects Congress is important too; it has no one else to delegate the imp lementation of policy to other than the president and it is unabl e to perform the executive func tion itself. Therefore it should come as no surprise that, deep within the blac k box before roll-call votes and veto threats are even thought of, Congress and the president are locked into a di alogue. They may not always be able to agree, that may happen only rarely, but bo th are the stronger for it when it is possible and, as the examples in this chapte r illustrate, both should see in it the potential to develop sound and effective public policy. 184

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CHAPTER 7 PRESIDENTIAL AGENDA SETTING: PRESIDENTIAL/CONGRESSIONAL COOPERATION IN THE LEGISLATIVE ARENA Introduction Referring to Franklin Roosevelt’s whirlwind first one hundred days in office, Clinton Rossiter wrote: “In his first H undred Days he gave Congress th e kind of leadership it had not known before and still does not care to have repe ated. In the golden days of the New Deal, he initiated a dozen programs designed to save societ y from the effects of its virtues.” (Quoted in Maney 2004). Patrick Maney (2004) points out, however, that of the fifteen measures passed by Congress during FDR’s first three or so months in office, only two of them origin ated with the president and his much vaunted Brains Trust.1 Much of the initial impetus for the policies of the New Deal came originally from seasoned members of Congress ably supported by younger colleagues such as House Speaker to be, Sam Rayburn. The legislative pr oductivity of the first hundred days was not matched again as Roos evelt’s four terms unfolded and by 1936 the Supreme Court was beginning to undo a substa ntial number of the New Deal measures. Roosevelt’s request to Congress for authority to appoint an additional six Associate Justices to the Supreme Court in 1937 was ill judged and marked the beginning of a serious deterioration in Roosevelt’s relationship with Congress which continued to be difficult throughout the Second World War (Kennedy 1999, 462-463). Yet the myth of FDR’s innovation and leadership prevails; he is a “Great President”, according to Arthur Schlesinger Jr.’s famous survey (Schlesinger 1997, 179-190). This must be in part because, in the aftermath of the Great Depression and the Second World Wa r, the presidency was in the ascendant and Congress was in decline. History is written by the victors, as Maney (2004) points out, a nd Roosevelt’s premature 1 The “Brains Trust” was a group of academics who advised FDR on policy matters during his 1932 campaign and his first few months in office. See Kennedy (1999, 119-124). 185

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death on the eve of an overall victory in the world war can only have helped cement him as a figure of colossal stature and legislative leader ship against which every president since is measured (Schlesinger 1997, 469). In truth, the president is the le gislative partner of Congress. Congress is the originator of much of the intellectual raw mate rial that becomes public policy but it has come to rely upon the president to organize disparate policy ideas into a coherent legi slative agenda. Congress has long recognized that its heterogeneous nature makes it impossible for it to prioritize public policy initiatives on its own, and it has essentially delegate d legislative leadership to the president. That is not to say, however, that C ongress has abdicated its legislativ e function; key reforms carried out from the 1960s through to the 1980s reorganized Congress into a more democratic, but at the same time more partisan, body better suite d to policy deliberation than to policy entrepreneurship, although the latter is stil l an important part of th e Congressional function. In the process Congress has come to rely more h eavily upon presidential legi slative leadership, an inevitable consequence of the expansion of the federal government and the representative imperative of individual members of Congress. This chapter considers the ways in which C ongress has reformed itself since the 1960s in order to meet the challenge of the president’s high profile in the policy making arena. Those reforms have not always strengthened Congre ss however; often the pres ident has been dealt unintended strategic advantages as a result of Congressional refo rms. Presidential scholarship has tended to miss the institutional changes th at Congress has undergone, and so tends to imagine a situation in which the president must persuade an individualized C ongress rather than bargain with a collective Congressional le adership. That was true of a fairly brief interval as the Congressional reforms of the 1970s bedded in through the 1980s; a period which happed to 186

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coincide with the publication of Sam Kernell’s enormously influential book, Going Public (1997), which relied for much of its thesis upon a disorganized vision of Congress. It is misleading to the contemporary analysis of execu tive/congressional relations to continue to view Congress as an individualized in stitution however. The best predic tor of a Congressperson’s vote is still his or her party affilia tion. Despite isolated attempts by scholars to broaden presidential analysis to take more account of the dynamics of the president’s rela tionship with Congress, presidential analysis still tends toward treatment of the presidency in isolation. I will argue that this is misguided and like a few, but not many, other scholars I will seek a broader understanding of the presidency which captures its interdepende nt relationship with Congress. I offer examples of executive/legislative cooperation and consultation in the areas of fiscal and social policy and conclude with some thoughts on presidential an d congressional success and the means by which scholars attempt to quantify it. I suggest an alternative approach which sees negotiation at the heart of the executive/congressi onal relationship and I argue th at seeing victory in black and white, winner and loser, terms is inconsistent with the shades of grey reality that characterizes so much of day to day politics. Congressional Reforms and the Going Public Moment When Sam Kernell first published Going Public in 1986 he presented an argument that the institutional development of Congress during the 1970s had driven it from being an institution of institutionalized pluralism to an institution of individualized pluralism (Kernell 1986, 29). His point was that the institutional reforms that Congress introduced duri ng the early 1970s had removed the old system of “committee government ” and replaced it with a system in which many of the rank and file members of Congress had begun to play a much more influential role in the legislative process (S inclair 2004, 635). The committee system had been populated by the powerful chairmen of autonomous committees w hose organizational and procedural authority 187

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gave them the power to determine the decisi on making processes, if the not the decisions themselves, in their own committee fiefdoms (S inclair 2004, 624). By historical happenstance these committee chairs tended to be in the hands of Southern Democrats of a deeply conservative outlook who wielded extraordinary power over th e Congressional decision making apparatus. Congressional decentralization following the reforms of the 1970s, which dismantled the seniority system and, with it, the power of the committee system over policy deliberation and enactment undoubtedly made it harder for the pr esident to negotiate with Congress; the institution had become too decentralized for the president to be able to build a consensus around his policy priorities. As Barbara Sinclair points out, the chairs of the House and Senate Armed Services Committees, Representative Carl Vins on and Senator Richard Russell, had virtually “set Congressional defense policy during the 19 50s and into the 1960s” (Sinclair 2004). For Kernell this meant that the president, in his de alings with the newly d ecentralized Congressional structure, had to do business with many individu al members rather than the handful who had once occupied the commanding heights of the committee system. Party leadership in Congress was relatively impotent at this time; the Democratic party enjoyed majorities in both chambers through the 1960s and 1970s but lacked discipli ne, cohesion, and the institutional means necessary to control the powerful committee chairs (Sinclair 2004, 626). The new individualized pluralism in Congress made it much harder for the president’s to engage in the business of persuasion; there were simply too many members of Congress with a finger in the legislative pancake batter, and it was not clear who coul d be relied upon to consistently support the president’s policy priorities. The uncertainty of the legislative landscape forced presidents, on Kernell’s account, to look for alternative means of advancing their policy priorities. One such means was for the president to go public , to take his argument to the el ectorate at large and try to 188

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influence them so as to apply some indirect influence on members of Congress. Few voters will pay sufficient attention to the president to notice what he is asking of them however; fewer still will be motivated to raise an issue with thei r member of Congress and those who do cannot be relied upon to take the presiden t’s line, they may oppose him. Go ing public is, therefore a risky strategy, marginally effective at best, serving to motivate the opposition at worst. For Kernell, however, “Going public should be ap preciated as a strategic adapta tion to the information age” (Kernell 1997). Kernell’s analysis of Congress was certainly true for a time. That time was, however, relatively fleeting. Meaningful reform of the H ouse of Representatives took place over a seven year period beginning in 1970. It wa s inconsistent in its overall tr ust, divided between reforms that tended to centralize author ity and others that tended to ward the opposite. However, the natural centrifugal forces at work in the institutio n eventually led to the emergence of the party apparatus to fill the power vacuum left by th e Southern Democratic committee chairs. By 1977 the reforms themselves were substantially in pl ace and, with a large influx of new Democratic House members elected in the wake of Richar d Nixon’s resignation in 1974, the trend toward decentralization took hold. The overall effect of th e reforms had been to greatly strengthen the potential for the party leadership in the House, and to a lesser extent in the Senate (Sinclair 2004, 634-635). The mood Congress, particularly among the new House members, was not conducive to heavy handed leadership in the latter part of the 1970s however. By the end of the decade, as frustrations with the practicalities of the new procedures emerged, party leaders began to exert some degree of the authority that the reform s had given them. By the mid 1980s the party leadership had cemented its control over the legislative proc ess and the age of individualized pluralism , that Kernell had described, was over (S inclair 2004, 636). The president could once 189

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again do business with a few powerfu l party leaders in the House and Senate in order to advance his policy priorities. The Senate was always more idiosyncratic than the House however and, although reform occurred, the Senate remained a more indivi dualistic institution as the 1980s progressed. Nevertheless, even in the Senate the parties became more ideologi cally polarized and individual Senators became more inclined to work with party leaders and thr ough the party apparatus, although the Senate retains the minority’s prerog ative to obstruct the will of the majority (Sinclair 2004). Greater party cohesion has made a difference for the president who does business with both the House and the Senate however , and the centralization of authority aids the president in his dealings with C ongress as a whole. Congress conti nues to look to the president to set the legislative agenda, but stronger party management and discipline in bot h the House and the Senate mean that deliberation over policy is a more predictable affair and that Congressional leaders have the bargaining strength to engage wi th the president in the negotiation of outcomes. Each side has certain advantages in that negotia tion, but Congress’ attempts at asserting itself have not always been wholly successful. Sometim es they have dealt an unintended useful hand to the president. Congressional reaction to th e Watergate scandal and the resignation of President Richard Nixon inspired two examples of such unintende d consequences. When Congress passed the War Powers Resolution of 1973, it gave the president authority to deploy American forces into battle for 90 days at which point he was to report to Congress on the current situ ation. The object of the Resolution was to curtail the president’s ability to engage in warfare but , instead, it expanded the president’s authority by giving him a free hand to deploy forces without prior reference to Congress (Fisher 2004, 685-702). The Congressiona l Budget and Impoundment Control Act of 190

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1974 was intended enhance Congressional control over the budget process and stop the practice of presidents since Jefferson who decided unila terally not to spend funds that had been appropriated by Congress for specified purposes. Ronald Reagan would use mechanisms contained in the Act to push his Economic R ecovery and Taxes Act of 1981 through Congress in a way which outraged House Speaker Tip O’Neil (Cannon 2000, 203). Periodic Congressional attempts at reform inte nded to reign in the presidency or advance Congressional control over the legislative pro cess are not universally unsuccessful. They can, however, produce unintended conse quences that play into th e hands of the president. Nevertheless, Congress has quite deliberately organized itself so as to be dependent upon the president’s lead in legislative matters. It has, in essence, recognized its limitations in the area of agenda setting and has, instead, sought to organize itself to make the most of its deliberative function. As it tries to tinker w ith the boundaries of its own author ity, however, it is apt to do as much for the president’s influence over the legisl ative process as its own. Maybe there is a lesson to be drawn from these experiences . The curious aspect is that C ongress rarely if ever goes back to remedy obvious mistakes. The War Powers Reso lution has remained on the statute books for more than thirty years and has seen the repeated deployment of American forces into zones of crisis. Yet there is no det ectable mood in Congress, even as th e Iraq war spirals out of control, to revisit the legislati on and try again. The President, Congress, and the Legislative Process The president has a clearly defined role in the legislative process; he has the constitutional responsibility to propose legislatio n to Congress and he has the option to sign bills into law or veto them and return them to C ongress. Bemoaning the polarization of scholarship into presidency and congressionally centered research, Mark Peters on argues that “The legislative process cannot be understood with re ference to only one branch of government.” 191

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(Peterson 1990, 7). The United States’ Constituti on created a system, not of separated powers, but of “separated institutions sharing powers” according to Rich ard Neustadt (Neustadt 1990, 27). Domestic policy is made by Congress and the president in c ooperation with one another or, at least, in a state of acqui escence according to Richard Rose (Rose 1980, 340). Robert Spitzer points out that Congress needs th e President to provide it with an annual legislative program (Spitzer 1993, 42). Indeed, Congre ss is apt to complain if the president does not provide one (Neustadt 1969, 594).2 Steven Shull points out that neithe r Congress nor the president has the means necessary to set the po licy agenda on their own – coope ration is essential for policy initiative to be a dopted (Shull 1997, 14-15). Peterson’s notion of tandem institutions, and his emphasis upon cooperation between Congress and the executive branch, has gained so me currency in the field, but the majority of modern scholarship, including that which focuses upon presidential unilateralism, continues to be cast in terms of a inter-br anch conflict and competition fo r power (Mayer 2001; Howell 2003; Warber 2006; et al). Rational choice, or new in stitutionalism, approaches assume competition among the executive and legislative branches for control over the policy ma king institutions of government leading, inevitably, to the quest to id entify the winners and losers in the struggle. Analysis takes on a zero-sum game dynamic whic h demands that victory for one can only come at the expense of defeat for the other. The quant itative imperative drives scholars to seek ways to measure success and failure which, in turn, lead s to an unrealistic preoccupation with the outcome of roll-call votes in Congress. The que stion becomes, were the president’s policy preferences supported or rejected by Congress? The measure becomes the end point, the roll-call 2 President Eisenhower failed to provid e Congress with a legislative program for his first year in office. He was sharply rebuked by both Houses of Congress. See Neustadt (1969, 594). 192

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vote, rather than the process – how the President and Congress inte racted in order to reach that end point. The president’s policy preferences are rarely entirely self-generate d. Much public policy arises out of long periods of debate, and policy solutions are likely to bear the imprint of many hands before they emerge from the legislative pr ocess. Spitzer (1993) poin ts out that it is often impossible to identify the point of origin of a piece of legislation. Much of Lyndon Johnson’s Great Society program originated in Congress in the 1950s and the Area Redevelopment Act of 1961, for which President John Kennedy received much credit, was actually the reincarnation of an idea that had earlier b een blocked in the Senate by Presid ent Eisenhower (Spitzer 1993, 50). If policy initiatives have many fathers, whom do we credit with the birth? Does the president’s success have to be measured in terms of policy th at he alone begets, or can he simply adopt the policy initiatives of others and call them his own? When we meas ure his legislative success, do we credit him with the policies he has adopted or those which bear only his own imprint. If the latter, the list will be very brief. Analysis that is restricted to the outcome of Congressional roll-call votes combined with an assumption that there is a perpetual state of inter-institutional conflict forces scholarly attention away from the process by which legislation becomes la w. Attention to process is, however, crucial. To ignore process is to miss the multiple points of conflict and collaboration that occur between the presiden t and Congress throughout the gesta tion of legislative outcomes. It may be argued that, to win the roll-call vote is to win the proce ss, but the binary notions of win or lose imply a yes or no answer to a question that has an entire spec trum of possibilities. Since Congress and the Presiden t share the goal of developi ng public policy, and since both have a role in the proposal a nd passage of legislation, it shoul d come as no surprise that the 193

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institutions are likely to expe rience periods of cooperation as we ll as periods of conflict. We should expect, from the dynamics of the electoral process and the fickle focus of public attention that one institution is likely to be dominant in the system from time to time, as Roosevelt did at the beginning of his first term. At other times Co ngress will dominate, as it did in the domestic realm throughout the presidency of George H. W. Bush and during the first term of President Bill Clinton. Scholarly approaches that rely upon instit utional conflict alone must inevitably be seen to be lacking essential aspects of the inter-institu tional relationship. Analysis of success or failure is so often the principal focus of studies of execu tive/legislative relations; the analysis is so often limited to the single moment in time when roll-ca ll votes are counted. Ro ll call votes are the end product of a complex process of negotiation, wh ether among members of Congress or between Congress and the executive bran ch. Concentration upon outcomes can lead to patently absurd conclusions, such as Bond and Fleisher’s propos ition that, based upon their measurement of rollcall votes, Jimmy Carter was th e legislative equivalent of Lyndon Johnson (Bond and Fleisher 1990). Johnson was a master of Congressional pro cess who took his “victories” where he could get them and pushed for the apparently impossibl e in order to get the maximum amount of the possible. Carter, on the other hand, had a more ri gid interpretation of his role and saw public policy through the eyes of an engi neer, as solid solutions to problems rather than as invitations to negotiate. It must be doubtful whether success and fa ilure are relevant terms to use at all in the process of legislative negotiation. Johnson took hi s “half a loaf” and called it a victory. Carter never really understood why Congress faile d to see the wisdom of his ideas. Peterson argues that his tandem institutions perspective better reflects the relationship of co-dependency that exists between Congress and the executive branch than studies that focus upon only one institution. It is true that his work adds the possibili ty of cooperation to the mix of 194

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inter-institutional relationships that are generally considered to be solely conflictual. Peterson (1990) codes presidential policy initiatives into categories in which the president’s proposal is accepted as submitted, modified through a process of negotiation, or simply rejected or ignored by Congress. The whole idea of the president expecting Congress to enact his legislative proposals in precisely the form in which he announces them is something of a puzzle however, and it goes to the very heart of his analysis. Peterson relies u pon interviews with what he describes as “informants” to establish that consultation between the White House and Congressional leadership does indeed take pl ace on policy issues (Peterson 1990, 57). However, he goes on to conclude that the consultation does not have any substantial impact upon the president’s legislative proposal s (Peterson 1990, 66). In other wo rds, presidents do not make strategic adjustments to their legislative proposal s in anticipation of Congressional reaction. This conclusion is reached, in part, because he believ es that the President cannot ever be sure how Congress will respond to his policy initiatives and so the influen ce of anticipated Congressional reaction on presidential policy in itiatives is inconsequential (Peterson 1990, 43-46). I argue, however, that strategic accommodation not only ta kes place, but is ke y to the president’s relationship with Congress. Why would we ever expect the pres ident, or members of Congress for that matter, to present their optimum policy ou tcomes as a matter of first instance? Like any transaction, be it political, commerci al or domestic, an initial pitch is made in anticipation of the negotiation to follow. It should come as no surprise to us if the makers of our public policy do the same. There follows a series of examples, from the realms of both fiscal and social policy that demonstrate that presidential/cong ressional cooperation in the formulation of legislation does take place, that when presidents initiate their le gislative program they consult with Congressional 195

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leaders on policy at an early stage and frequen tly throughout the legisla tive process, and that policy is often the product of detailed negotia tion among Congressional l eaders and the President and his most senior advisers. The question ough t not to be how frequently this level of cooperation occurs, but what is the importance of the public policy that the cooperative process produces. Budget policy and civil rights are two of the most significant areas of public policy that the federal government is called upon to address. That such policies are fashioned through negotiation between the legislat ive and executive branches sh ould come as no surprise; the stakes are as high as they can get. Fiscal Policy: Doing the Math Together The federal budget represents an annual ne gotiation between the executive branch and Congress concerning the policy priorities of the coming fiscal year . The president is statutorily required to deliver a budget to Congress by vi rtue of the Budget and Accounting Act of 1921. There can be no doubt that a negotiation ensues be tween the executive and legislative branches. Periodic government shut downs, as the federal government runs out of money while the budget remains unresolved, stand as testimony to the fact that the president’s role in the budget process does not stop with the delivery of his proposal s. His budget prospectus is not automatically accepted by Congress, just as Congressional counterp roposals are not necessa rily accepted by the executive. Eventually, usually some time after the September 30th deadline, some form of agreement is reached, even if it is only to defer the disagreement to future years. Negotiation is the essence of fiscal policy in the United States as these examples demonstrate. ERTA, Reconciliation, and the Boll Weevil s After three years of antagonist ic relations with Congress President Carter’s administration found itself in severe difficulty with the Fiscal Year (FY). 1981 budget process. After submitting his budget proposal to Congress in January of 1980, as tradition and the Budget and Accounting 196

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Act of 1921 required, the President paid the price of inadequate advance Congressional liaison. He was forced to withdraw his proposals seve n weeks later and enter into a hurried round of negotiations with Congressional leaders and committ ee chairs in an effort to agree an acceptable alternative budget (Hartman 1982, 381-402). The pending presiden tial election and deepening economic recession stalled attempts to reach a meaningful budget resolution and Ronald Reagan’s handsome victory in the November election rendered Carter’s budget priorities moot. The Reagan transition team had been watching the travails of the Carter administration and was determined not to be similarly undone. Reagan had begun a courtship of Congress as early as 1977 and had been a regular visitor to Cap itol Hill throughout the 1980 presidential campaign and into the transition period (Hogan 1988, 68-94). The Republican l eadership were involved in shaping the newly elected presiden t’s legislative agenda, but Reagan also recognized the need for the support of the Democratic majority in the House of Represen tatives. He met with Congressional leadersh ip on both sides of the aisle and includ ed the Democratic leadership in his pre-inauguration charm offensive (Hogan 1988, 74-75) . While the president himself lacked the economic sophistication that led hi s advisers to quarre l over the relative meri ts of supply-side economic principles against traditional Republican values, Reagan had a clear understanding “. . . of the direction in which he wanted to go, even if he didn’t have a road map for getting there.” (Cannon 2000, 101). In order to take advantage of the post-inauguration President’s honeymoon period, Reagan decided to limit his legislative proposals to a small number of highly prioritized policy initiatives. As the new 97th Congress was settling in and the Democrats were coming to terms with the loss of the White H ouse and, for the first time in a generation, the Senate, the new administration saw an opportunity to make signifi cant progress with its le gislative agenda. The 197

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administration’s proposals were cen tered around an economic theme; cutting taxes, reducing the rate of growth in domestic spending (although not reducing spending overall), dramatically increasing defense expenditure and an extensive program of regulatory re form were set as the priorities (Cannon 1991, 198-199). Reagan announced the broad sweep of his economic strategy to Congress in February 1980 and the administ ration delivered its full budget proposals to Congress within seven weeks of taking office (LeLoup 1982, 321-339). However, the administration faced a problem. As a result of re forms that had taken place since the early 1970s, particularly as a consequence of the Congre ssional Budget and Impoundment Control Act of 1974, Congressional committees now enjoyed a far gr eater degree of autonomy from the party leadership than had previously been the case. Prior to 1974 there was no Congressional committee in overall charge of the budget review process; individual elements of the president’s proposals were simply parceled out to assorted committees and sub-committees in each of the House and the Senate. Appropriations and author ization committees were poorly coordinated and often failed to reach timely conclusion s which resulted in the need for a continuing resolution to ensure that government programs continued to be funded while the Congressional committees deliberated their budget for the coming fiscal ye ar. The House Ways and Means Committee and the Senate Finance Committee had responsibility for laws but they acted independently of one another and were often unawar e of the decisions being made by the spending committees. In order to alleviate the chaos th e 1974 Act created a Committee for the Budget in both the House and the Senate and established the Congressional Budget Office to provide access to expertise. These Committees coordinate revenue and spendi ng committee’s activities. The problem for the Reagan administration was that, as a conseque nce of these reforms to the budget system in Congress, the newly autonomous spending committ ees, together with thei r cabals of related 198

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interest groups, were being asked to axe the ve ry spending programs that they themselves had initiated. Congressional l eadership no longer enjoye d the authority that they once had to rein in the spending committees decisions. This called for decisive action on the part of the new Reagan administration if its budget proposals were not to become derailed as President Carter’s had been. The solution, and the key to Reagan’s earl y success with Congress, was to come in the form of the budget reconciliation process that was also a product of the 1974 Act. A sophisticated and experienced legislative li aison team was already in place in the White House to shepherd the administration’s proposal s through Congress, starting with the Republican controlled Senate. The Senate’s involvement was key, not because it coul d achieve anything in itself, but because as early as March 1980 it pa ssed a resolution approving the president’s spending reduction proposals virtually in their entirety and, separately, it passed a bill invoking the reconciliation process (Baker 2006, 177). Reconciliation wa s also a creation of the 1974 Act. The process calls for mandatory reductions in spending by federal government departments and agencies when the federal government deficit reaches certain levels. As envisaged by the draftsmen, reconciliation should be applied late in the budget process in order to require spending committees to trim their expenditure to comply with the limits imposed by the overall federal budget. Eventually the House would join in with the reconcilia tion proposal which would become pivotal to the Reagan administration’s successful passage of its flagship Economic Recovery and Taxes Act of 1981. Many have claimed credit for the decision to invoke the reconciliation process at an unusually early stage (Baker 2006). The only othe r occasion when it had been used was during President Carter’s FY 1980 budget debacle when it had failed to achieve much because of the lateness of the hour. It is likely, however, that the idea came from Senator Pete Domenici and is 199

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indicative of the two-way nature of the Reag an administration’s cooperation with Congress (Baker 2006, 325). Invocation of th e reconciliation pro cedure enabled the Reagan administration to package its spending reduction proposals and effectively mandate cuts in a full range of spending programs instead of requiring piecemeal negotiation on a program by program basis. Moving the reconciliation process to the front end of the budge t process was crucial to avoiding this scenario. Early reconciliation provided the administration with a means to package all of the president’s spending cuts into one omnibus bill, which, as long as the Reagan administration could amass a majority for one vote on the bill on the floor of the Senate and the House , would let the president have hi s program of cuts considered as a whole and on his terms, thus let him sidestep resistan ce from the legislative committees that had initiated the spending programs. (Baker 2006, 79). Treatment of the president’s package as a whole avoi ded the risk of losing individual elements of it along the way and severely curtailed the sp ending committee’s ability to protect their individual pet projects from the spending axe. Re agan, the master communicator played his full part in the budget negotiations. He went to Capitol Hill on two occasions, once in February and again in April, his first public appearance after the assassination attempt, to summon Congressional support for his budget (Baker 2006, 173-179). Reagan ’s Budget Director, David Stockman described the administration’s objective in invoking the reconciliation procedure, “My aim in this tactic was to take the Hill by storm before the interest group opposition to spending cuts congealed” (Patashnik 2004, 678). Congressional Democrats were not thrilled by the Reagan’s success however, particularly since, as Patashnik (2004) points out, the admi nistration had used “a legislative process designed to strengthen Congress’ budget pow er to serve its executive goa ls.” House Speaker Tip O’Neil complained that the president had undone years of careful Congressional c onsideration of fiscal policy (the pre-1974 chaos notwithstanding), and he feared for a fu ture in which the president 200

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simply had to send over his legislative proposal s and the procedures of the House would be forgotten (Cannon 2000, 203). The key to Reagan’s success, however, were the Boll Weevil3 conservative Democrats and the consistently co hesive coalition that they and the House Republicans formed. White House negotiations with the Democratic leader of the House Ways and Means Committee, Congressman Dan Roste nkowski, were unproductive. This led to the administration sweetening the budget deal with incentives designed to bring the Boll Weevil Democrats on side. The Reagan administra tion arguably understood the newly reformed Congressional budget process better than the memb ers did themselves and they skillfully sold their budget agenda to Congress as the cure for the economic and social ills of the age; high inflation and taxation combined with concerns that the military was severely under-resourced and that social programs dating back to the Great Society we re no longer working (Patashnik 2004). Skillful manipulation of the procedures of Congress, achieved with the aid of the Republican control of the Senate which had occurr ed on the coattails of Ronald Reagan himself, combined with a willingness to engage with both of the aisle in order to form a winning coalition around the president’s program (LeLoup 1982). The pr esident personally cont acted each of the 63 Democrats in the House who voted with th e administration on the first budget resolution. A bidding war broke out between the administration and the Democratic leadership in the House for the hearts and minds of the Boll Weevils and the administration won. As long ago as 1964 Aaron Wildavsky identi fied the federal budget process as an “incremental bargaining process.” Reagan’s stra tegy of cutting taxes while massively increasing defense expenditure was apparently attractive to a sufficient numb er of members of Congress to 3 The Boll Weevils were “the remnants of the once-powerful bloc of conservative Democrats who ruled the Solid South, plus a few like-minded party members from other parts of the nation. . . these forty or so conservative lawmakers occasionally voted with Republicans” ( Baker 2006, 174) 201

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produce the 1981 budget agreement, but it also shows, as he observes in the later ed ition of his work (Wildavsky 1966), that agreement on the b udget must at some stage center around an agreement on what the federal government is for. “Read my lips” – No Second Term. George H. W. Bush’s “Read my lips. No new taxes” pledge, made during his 1988 campaign to succeed Ronald Reagan as president, has gone down in political legend as the phrase which cost him a second term as presiden t. As a career Washingt on insider, unlike the Belt-way neophyte Reagan, Bush brought an enti rely different approach to White House relations with Congress. Richard Nixon, who had plucked Bush from the political gutter after he lost his bid for a Texas Senate seat in 1970, described Bush’s personal political style Bush believes, far more than I, in the effec tiveness of personal diplomacy. He believes that if you have a good personal relationship, it he lps on substance (Quoted in Beschloss and Talbot 1993, 166). Bush believed in compromise and, faced with significant Democratic majorities in both the House and the Senate, compromise meant dealing w ith the Democratic leadership in both Houses (Barilleaux and Rozell 2004; Parm ent 1997). Circumstances contrived to underscore that George Bush was no Ronald Reagan however. Despite Bush’s comfortable win over Democratic opponent Michael Dukakis in the presidential poll he came to office as the first president lacking a majority in both Houses of Congress. The Reagan years had resulted in a tripling of the national debt and an unprecedented budgetary deficit. Stephen Skowronek describes Reagan’s legacy to his Vice President in somewhat partisan, but nonetheless compelling terms the “boom years” of the Reagan administration witnessed a de cline of the nation’s export industries, a flood of foreign products into the American ma rketplace, a ballooning trade deficit, the empowerment of foreign creditors in the high affaires of state, a speculative binge in real estate and cons truction that threaten ed the savings and loan industry with insolvency, and a burgeoning consumer debt as ominous as that facing the federal government itself. In the fall of 1987, a st ock market crash unprecedented since 1929 202

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threatened the entire financial system, and the Fed., faced with impending disaster, rushed in with supports to keep the system sound. (Skowronek 1997, 427). In reality, the American experience at the begi nning of the 1990s was bei ng replicated across the developed world but that was little comfort to the newl y elected Bush administration. Despite the bleak economics, the budget process went relatively smoothly during Bush’s first year in office. That would change with the FY 1991 budget whic h Bush sent to Capitol Hill in January 1990. Richard Darman, Director of the OMB and the administration points-man on budget matters, was asked by Senator J Bennett Johnston (D-LA) if the Bush administra tion were willing to negotiate the terms of the budget proposal. “For our part, we’d be prepared to star t at 10 o’clock tonight” Darman replied indicating that the president should first be allowed to make his speech to the joint session of Congre ss later that evening.4 A negotiated settlement of the budget was therefore clearly in everyone’s mind. The negotiations were conducted at high leve l within the White House. In addition to Darman, White House Chief of Staff John Sunu nu met with Congression al leaders on the administration’s behalf. Bush preferred to stay in the background. He confided in his diary in the spring of 1990 I must say I hate dealing with Congress on these budget matters. I much prefer foreign affairs. I salute Sununu and Darman for doing it. (Parmet 1997, 430). By late April serious budget negotiations betw een the White House team of Sununu and Darman had still not got under way. The prob lem was, with the federal deficit continuing to soar and little progress being made to tackle government spending, Bush’s “read my lips” pledge was becoming more and more difficult to sustain. Darm an recounts that he believed that the only way 4 Paul Blustein, “Darman Offers to Begin Capitol Hill Budg et Talks; Key Democratic Senators Remain Skeptical,” The Washington Post , February 1st, 1990. 203

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to kick start the negotiations was to provide une quivocal evidence of pres idential engagement in the process (Darman 1996, 248). In addition, the fi nancial markets were beginning to get jittery about the level of deficit spending and it was be coming clear that a stat ement from the White House was going to be necessary to settle th e markets down (Barilleaux and Rozell 2004, 33).5 Darman recalls that he, Sununu and Treasury Se cretary Nicholas Brady suggested to the President that he should meet one-on-one with the most se nior Congressional leaders, Republicans Mitchell and Dole, House Speaker Fo ley and Senate Majority Leader Michel (Darman 1996, 249-250). The purpose of the meetings was to set the procedural guidelines and establish the parameters for negotia tion. The meetings took place on May 1st and 2nd and were conducted in strict secrecy. Following on from th e successful leadership meetings, Bush called all sides of the Congressional leadership to a meeting in the White House residence on Sunday night, May 6th. There, over popcorn shrimp and hot sau ce, the deal was struck; the White House was willing to enter in to nego tiations with “no preconditions”; which was to say tax increases were up for discussion. The Democrats’ demande d, and got, a clear statement from the White House that taxes could form part of the ne gotiations. White House press secretary Marlin Fitzwater delivered on the President’s promis e at his Wednesday press conference. The statement confirmed that “the special budget gr oup would function best if there were no preconditions for negotiation and if there were no negotiations through the public” (Parment 1997, 433). House Speaker Tom Foley, Senate minority leader Bob Dole and his House 5 There is, of course, another take on the budget situation as it existed during the spring of 1990 See Kolb (1994). Particularly chapter 4 which is entitled “Darmanomics at Work.” Kolb argues that the President’s negotiating position was much stronger than either Darman or Su nunu admitted. Mandatory budget cuts under the GrammRudman-Hollings Act (Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987) would have been triggered as a result of the growing federal deficit by October 1990. The consequences of across the board budget cuts as they would have been crudely applied by G-R-H were unpalatable for members of Congress who relied upon government sponsored projects to provide benefits to their constituents. This, argues Kolb, gave the President considerable leverage to negotiate budget cuts with Congress rather than to continue the politically damaging negotiations betwee n Congressional leadership and the White House. 204

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counterpart George Mitchell each delivered virtually the same message to the media; the negotiations would proceed “without preconditions.”6 “No preconditions, no limitations.” echoed Fitzwater.7 Eventually, Darman presented a re vised budget for negotiation on June 20th and The Washington Post would report se et zell 2004, 35). White House and Congressional budget negotiato rs finally got down to business yesterday as President Bush’s budget director put forth a revised proposal he claimed would cut the fiscal 1991 deficit by $50.4 billion and save $444 billion over the next five years.8 The New York Post was less circumspect, “Read My Lips – I Lied.” ran its headline; a mood which probably more accurately reflected the mood of the country (Barilleaux and Rozell 2004, 34).9 Procedurally, it was agreed that the President would chair the bi-p artisan budget negotiation meetings and that House Major ity Leader Richard Gephardt (D-Mo) would coordinate meetings when the President was not present. The series of meetings began on May 9th (Darman 1996, 250). They continued, expanding to more than 26 participants, over the cour of the summer. By October, as the budget nego tiations neared a conclusion, Bush did further damage to his reputation among the voters when he was questioned by re porters about the budg deal while out jogging. A photograph of the President pointing at his rear end and saying “Read my hips” appeared on newspaper front pages across the country as a distinctly unhelpful reminder of the President’s broken pr omises (Barilleaux and Ro President Bush’s naturally conciliatory style was costly to his relationship with Republican leaders in Congress. He saw the Democr atic majority leaders as key to legislative success, which they were, but only for so long as the Republican minority remained both 6 Dan Balz, “Bush Won't Accept an Increase in Income Tax Rates, Dole Says”, The Washington Post , July 2, 1990 7 Ann Devroy, “Bush Opens Door To Tax-Hike Talks; 'No Preconditions' for Budget Session,” The Washington Post , May 8, 1990. 8 John E. Yang, “Darman Presents Revised Budget to Hill,” The Washington Post , June 21, 1990. 9 George F. Will, “He Moved His Lips and Said Nothing,” The Washington Pos t, June 29, 1990. A27 205

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cohesive and supportive of the President. Wher eas Ronald Reagan made sure to carry the Congressional Republicans with him during the cr ucial ERTA negotiations, Bush alienated his Republican colleagues who revo lted against OMB Budget Director Darman’s first budget proposal which, in accordance with Bush’s cam paign pledge, did not include tax increases (Barilleaux and Rozell 2004). In contrast to R eagan, who went on national television to explain his budget proposals and rally support among the cons tituents of members of Congress, Bush allowed the 1991 budget negotiations to be cond ucted in secret. The administration never explained to the public why the “no new taxes” pledge had been abandoned. Bush failed to reveal how he had been forced to compromise with the Democratic leadership in Congress and include taxes as an element of the budget negotiation process. No only did this harm Bush later on, it also represented a threat to Republican s seeking election in 1992. Those running for the Republican ticket found it convenient to run ag ainst the President who had “lied” to their constituents. The public remained ignorant of the deteriorating economic conditions and the leverage that the Democratic Congressional majo rities in both Houses had over Bush throughout the budget negotiations. They would blame Bush not only for breaking his promise, but for increasing the amount the federal government clai med from their pocketbooks and pay cheques. The President found himself outmaneuvered by Congress and set up to take the fall for increased federal tax rates. In contrast, Ronald Reagan had succeeded in his negotiations with Congress, emerging with his fiscal plans substan tially in tact and a publ ic perception that the administration was competent and responsible. An Aside: George H.W. Bush, the FY1991 B udget, and the OMB Side-bar Agreement As President George H.W. Bush struggled to agree a deal with Congress on the FY 1991 budget, one pressing matter became the renewal of appropriations authorization from Congress for the Office of Information and Regulatory Affairs (OIRA). OIRA ha d been established by 206

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President Ronald Reagan as pa rt of his strategy to reduce th e overall burden of government regulation and the agency was charged with ve tting and eliminating government regulations wherever possible. The regulatory review process was established by President Reagan as one of the first acts of his administration (by m eans of Executive Order 12291 and, subsequently Executive Order, 12498) and introduced a requirement for cost/benefit analyses to be carried out in respect of all government regulations before they were approved by OMB. The clear objective of Reagan’s policy was to reduce the burden of government regulation and Kenneth Mayer credits Executive Order 11291 with fundamentally reshaping the regulatory process of the United States federal government; there are few who would disagree with his analysis (Mayer 2001, 35). Bush was hampered in these discussions over the renewal of congres sional authorization for OIRA by press revelations th at his presidency had presided over the broadest expansion in government regulation since the Nixon administrati on. The allegations had first been made in the Wall Street Journal two years earlier.10 The essential stumbling block to OIRA’s renewal was the testy issue of public disclosure of the Of fice of Management and Budget (OMB) regulatory review process. The Democrat controlled Congress wanted the process of re gulatory review to be made much more transparent. They were convinced that the Republican White House was using the process to eliminate environmental and other socially based initiatives on the basis that the benefit, as measured according to criteria established by OMB, outweighed the additional costs 10 Albert R. Karr and Michel McQu een, “Unlike Reagan Aides, Many Bush Officials Expand Regulation,” Wall Street Journal , November 27th, 1989. 207

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that would be borne by government and/or indus try in order to comply with the regulations.11 The Reagan administration had been quite successf ul in eliminating large swathes of government regulation using the OIRA process and Vice Presid ent Bush had been the principal responsible for the oversight of the Reagan policy of deregul ation. For Bush now to be painted as the “ReRegulation President” was an embarrass ment the President could do without.12 In the spring and early summer of 1990, papers uncovered at th e Bush Presidential Library reveal an acrimonious exchange of corres pondence between White House Counsel C. Boyden Gray and the Chair and Ranking Minority Memb ers of the House Committee on Government Operations, Representatives John Conyers a nd Frank Horton respectively. Correspondence in similar vein is exchanged between the House Committee and Senators John Glenn and William V. Roth, the leading members of the correspond ing Senate committee. The substance of the correspondence focuses upon an agreement, refe rred to as a side-bar or administrative agreement, which had apparently been negotiated by the OMB directly with the House and Senate committees over the course of many months . Gray described the effect of the proposed agreement which, he claimed, “would have revised the regulatory review procedures employed by OIRA pursuant to Ex ecutive Orders 11291 and 12498.”13 The side-bar agreement would have provided that, notwithstanding the terms of the enabling legislati on and the two executive orders, OMB would in future disclose a far greater degree of information concerning the OIRA regulatory review process than had previously been provided. 11 (accessed October 26, 2006) 12 For a fuller account of the matter see Kolb (1994). 13 Letter from C. Boyden Gray to Hous e Members Conyers and Horton, April 30th, 1990. Bush Presidential Records Office of Chief of Staff Counsel (Gray) 1990 [OA/ID CF 00155] Bush Presidential Library 208

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It appears that, unknown to the White House, OMB had been negotiating a side agreement directly with the House and Senate Committees on Government Operations in an effort to overcome the Democrat controlle d committees’ reservations about renewal of appropriations approval for OIRA. Once notice of the agreement reached the White House, Gray acted promptly, probably on the instruct ions of White House Chief of Staff John Sununu in whose files these papers were discovered, to scotch th e deal immediately. The Congressional committees were naturally angry at Gray’s late intervention and OIRA’s budget had not renewed by the close of 101st Congress at the end of that year. The relevance of this story, for the purposes of our examination of the executive/legislative budget process is clear. The OMB will, in certain circumstances, conduct direct negotiations on budget and appropriations matters directly with Congressional committees and sometimes they will do so independently of the White House. Th is should come as no surprise; the White House negotiators can only deal in macro terms with the overall parameters of the federal budget; individual departments and agencies, in this case OMB as OIRA’s parent agency, will try to strike deals on the specifics of their own budgets directly with C ongress. It is all part of the executive negotiation process with Congress to develop and agree upon the federal budget. In this case OMB were clearly prepared to extend disclosure of the OIRA regulatory review process in exchange for a prompt renewal of the agency’s authorization. This deal happened to cut across one of the more sensitive issues facing the Bush White House; the continued expansion of government regulation notwithstanding the presiden t’s pledges to the contrary. The apoplectic reaction of the members of the House and Senate committees ,to Boyden Gray’s letter14, indicate that as far as they were concerned, their direct negotiations with OMB were legitimate and had 14 Letter from C. Boyden Gray to Hous e Members Conyers and Horton, April 30th, 1990. Bush Presidential Records Office of Chief of Staff Counsel (Gray) 1990 [OA/ID CF 00155] Bush Presidential Library 209

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resulted in a firm agreement upon which they were pr epared to rely. It is clear, therefore, that Congress expects to deal direc tly with departments and agencies on budgetary matter and that this is part of the overall process of negotiati on between the executive branch and Congress. This in turn underscores the fact that the budget process is a process of negotiation. Social Policy – The Civil Rights Act 1964 A high point of legislative-executive cooperation – and a land mark achievement – in the early days of the Johnson administration was the passage of the Civil Rights Act of 1964. (Oberdorfer 2003, 226). The early summer of 1963 was scarred by the deat h of four African American school girls who had been attending Sunday School at the Sixteenth Street Baptist Church in Birmingham, Alabama when a fire bomb planted by member s of the Ku Klux Klan exploded. The blast occurred only eleven days after the federal gover nment had issued orders that the city’s public school system should be racially integrated. Martin Luther King Jr. delivered the eulogy at the little girls’ funeral and the city became the front line in the battle for racial equality. Alabama governor George Wallace defied the federal government and declared from this cradle of the Confederacy, this ve ry heart of the Anglo-Saxon Southland. . . I say, segregation now! Segregation to morrow! Segregation forever!15 By April of 1963 the trouble in Birmingham ha d prompted President Kennedy to convene a meeting of senior members of Congress to discus s the possibility of introducing some form of civil rights legislation. Senate Minority lead er Mike Mansfield, Demo cratic Whip Hubert Humphrey, Attorney General Robert Kennedy and a number of other Senators were present at the meeting.16 Humphrey recalls 15 Governor George Wallace inaugur al address January 14, 1963 16 This account is taken largely from a memorandum prepared by Humphrey immediately after passage of the 1964 Act. It is fully transcribed in Humphrey (1997, 77 91 ). Humphrey’s account of the legislative mechanics of the passage of the 1964 Act is regarded by the archivists at the Lyndon B. Johnson Presidential Library in Austin, Texas, as the best account of its kind on the topic. 210

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there were innumerable meetings. Some [were] at the majority leader’s office, some at the White House, some at the Department of Justic e. Generally present at these meetings were the attorney general, Senator Mansfield, my self, occasionally Senator [Clinton] Anderson [D-NM], Senator [Joseph] Clark [D-PA], and on occasion some of the Republicans including [Everett] Dirkson [R-IL], [Thomas] Kuchel [R-CA], [Kenneth] Keating [R-NY], [Jacob] Javits [R-NY], and [Hugh] Sco tt [R-PA]” (Humphrey 1997, 78-79; Oberdorfer 2003, 230). Everett Dirkson, the Minority leader in the Sena te was recognized early on as being the key to passage of any civil rights bill through the Senate and Humphrey worked hard to bring Dirksen on board early on. Humphrey recalls “I knew it was impossible to pass a civil rights bill, because we couldn’t possibly get clotur e without Dirksen and his help ” (Humphrey 1997, 87). Mansfield asked the President and Attorney General Bobby Kennedy to meet with Dirkson and other senior Senate Republicans to make the case for their bill directly (Oberdorfer 2003, 231). The lengthy series of meetings between the President, the Attorney General and Congressional leaders finally reso lved themselves into a debate about whether the bill should include fair employment provisi ons and authority to cut off fe deral funds from programs that used them in a discriminatory manner. Humphr ey urged a comprehensive program to include voting rights, school desegregation, public accommodations, fair em ployment, the ability to cut federal funds from discriminatory programs, and the ability for the Attorney General to sue in court to protect the rights of individuals (Humphrey 1997, 79-80). In the event a much watered down bill would be presented by Kennedy in June 1963 which was aimed primarily at the desegregation of public accomm odations which had been the principle source of unrest in Alabama. The bill did not include fair employment provisions and had only limited provisions dealing with nondiscrimination in federal government programs. Kennedy’s message to Congress on civil rights, which accompanied the dr aft bill, also bore the imprint of extensive consultation. Humphrey was asked to review th e message and he worked closely with Kennedy’s speech writer, Ted Sorensen, who was doing much of the drafting (Humphrey 1997, 80). 211

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The summer of 1963 saw President Kennedy’s bill making its way through the House committee system with little corresponding activity in the Senate. In response to continuing civil unrest and the well organized lobby ing of the Leadership Conferen ce, a series of strengthening amendments were added to the bill. These included the creation of a Federal Employment Opportunity Commission with power to issued le gally enforceable administrative orders and widened voting rights provisions to include state as well as fe deral elections. The amendments also sought to outlaw discriminati on by any business that required state or federa l authorization and gave the Attorney General authority to seek injunctions against viol ations of a citizen’s Constitutional or statutory rights. Southern Democrats and conservative Republicans were inclined to support these amendments in committ ee in the belief that a stronger bill would be more easily defeated when it came to the floor of the House (Stewart 1997, 156-160). The White House became convinced that the bill, in this fo rm, would be defeated. The President, joined by Attorney General Bobby Kennedy, his deputy, Ni cholas Katzenbach, and assistant, Burke Marshall, met with the House lead ership on both sides of the aisle, particularly Charles Halleck, the minority floor leader, and William McCulloch, the ranking Republican on the Judiciary Committee. The meetings finally produced a watered down version of the committee bill. Referring to these meetings Hum phrey recounts that “they put t ogether the package that was finally passed by the House” (Stewart 1997). The bill was finally reported out of committee two days before President Kennedy’s assassination. It was November 20th, 1963 On November 27th, 1963, before a specially conven ed joint session of Congress, President Lyndon Johnson delivered an address in which he urged Congress to pass the civil rights bill as the nation’s memorial to its slain leader no memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civi l rights bill for which he fought so long. We 212

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have talked long enough in this country about equal rights. We have talked for one hundred years or more. It is time now to write the next chapter, and to write it in the books of law. I urge you again, as I did in 1957 and again in 1 960, to enact a civil righ ts law so that we can move forward to eliminate from this Nation every trace of discrimination and oppression that is based upon race or color. There could be no greater source of strength to this Nation both at home and abroad.17 The civil rights bill was passed by the House on February 10th, 1964 by a vote of 290-130 (Stewart 1997, 160). The majority consisted of 152 Democrats (59% of House Democrats) and 138 Republicans (78% of House Republicans) (S tewart 1997). An extraordinary coalition had been forged to bring the bill to this stage. This, however, was the easy part. The bill now faced the threat of a Senate filibus ter by southern Democrats who controlled much of the Senate committee apparatus. The Senate arithmetic showed a healthy 67-33 majority for the Democrats, but at least 20 conservative Democrats, mostly fr om the south, could be expe cted to side with the majority of Republicans to weaken or defeat any civil rights legislation. Sixty-seven votes were needed for a cloture motion, which was necessary to end a filibuster (Oberdorfer 2003, 229). The White House, in concert with the Senate leadersh ip of both parties, would now go into overdrive in an effort to overcome the inevitable filibuster. On March 9th, 1964 the Senate took up the civil rights bi ll that had been sent to it by the House of Representatives. The role of floor manager for the bill was discussed between Democratic Majority Leader Mike Mansfi eld and President Johnson, who Mansfield had succeeded when Johnson became Vice President in 1961. Johnson suggested that Majority Whip Hubert Humphrey take on the role and Mans field agreed (Oberdorfe r 2003, 230-231). Humphrey divided the bill up by title, or section, and as ked a number of senior and supportive Senators from both parties to each be responsible for an individual title (Humphrey 1997, 82-83). 17 Lyndon Baines Johnson. Address to Joint Session of Congress (November 27, 1963). 213

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Bipartisan cooperation was the ove rriding feature of Humphrey’s management technique as he sought to shepherd the civil ri ghts bill through the Senate. White House involvement with the process of the bill thought the Senate were frequent and detailed. In particular Deputy Attorney Gene ral Nicholas Katzenbach and his assistant Burke Marshall met regularly with Senato rs on both sides of the aisle to discuss progress and tactics. John G. Stewart, Hubert Humphrey’s top legislat ive assistant at the time, dictated his thoughts on the daily progress of the bill through the Senate. Th ese transcribed accounts now form part of the Humphrey papers and are reproduce d in Robert Loevy’s book (1997).18 Stewart ( 1997, 93-147) recounts the detail of meetings that Katzenbach and Marshall ha d with various Senate leaders over the course of April, May and June of 1964. The meetings covered every aspect of the legislative process from agreeing on responses to Senator Dirksen’ s amendments to the bill to hammering out the tactics and strategies to deal with the inevitable filibuster. In addition to Katzenbach and Marshall, Larry O’Brien and Mi ke Manatos of the White House Congressional liaison staff were regularly invol ved in meetings held at the White House between President Johnson and Senators Dirksen, Humphrey and Mansfield (Stewart 1997, 100,101,105,108,109,110,116,124). Senator Mansfield’s biogra phy confirms the active White House involvement in the negotiations with Se nator Dirksen and the Republican minority. He refers specifically to meetings on April 9th, April 23rd and April 29th, involving Senate leaders, Justice Department officials, including A ttorney General Bobby Kennedy and his deputy Nicholas Katzenbach, as well as other Wh ite House advisers. (Oberdorfer 2003, 233-234). Mansfield also met with and spoke regularly to the President as the Sena te debate unfolded as did Minority Leader Dirksen. Joseph Califano, then a Special A ssistant to President Johnson, 18 The Humphrey papers are held by the Minnesota Historical Society in St Paul, Minnesota. 214

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recalls long evening meetings between Johnson and Dirksen ove r scotch and Jack Daniels “trading political tales an d seeking the Senator’s s upport” (Califano 2000, 54). Wednesday May13th marked one of the most im portant days of the entire process. It marked the achievement of a final deal with Minority leader Dirksen on the terms of the civil rights bill. Stewart recounts that, in sessions which lasted all day, Attorney General Bobby Kennedy and White House advisers Larry O’Brie n and Mike Manatos “nailed down the initial compromise with Dirksen” (Stewart 1997). With Senator Dirksen on board the time had come to face the Southern Democrats and the much anticip ated filibuster. The vote was set for June 9th, later deferred until the next day. Lobbying in advance of the cloture vote t ook on a wide variety of approaches. Hubert Humphrey personally lobbied individual waveri ng members up to the night before the vote (Humphrey 1997, 91). The quiet diplomacy of Mike Mansfield took the form of personal letters to individual Senators cast not in terms of the ri ghts or wrongs of the case for civil rights, which had been debated to the point of exhaustion, but rather in terms of the reputation of the Senate as an institution. Failure to vote for cloture, Mans field argued, would harm the reputation of the Senate and underscore criticism that it was an institution where a motivated minority could overcome the expressed will of the majority (Oberdorfer 2003, 234). Lyndon Johnson, for his part, was more muscular in his lobbying tech niques. He had Senator Clair Engle (D-CA) wheeled into the chamber on his death bed. Dying of brain cancer, and unable to speak, Senator Engle pointed to his eye (indicating aye ) in order to register his vote in favor of the cloture motion (Califano 2000; Oberdorfer 2003, 235). When Humphrey told Johnson that he was struggling to persuade one of his Senate colleagues to vote for cloture, Johnson asked him if the Senator’s mistress knew of his position. Humphrey didn’t know that the Senator had a mistress, 215

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let alone that the mistress was an African Amer ican. The Senator was on the Senate floor at the time of Johnson and Humphrey’s conversation and Johnson told Humphrey to keep him there. The Senator then received a te lephone call in the Democratic cloakroom and when he took it Humphrey was able to overhear one side of the conversation; Yes, dear,” the Senator said. “But I can’t. You have to understand. I just can’t,” he whispered. Then after listening for a couple of minutes, “Well, I didn’t realize how important this was to you” (Califano 2000, 54-55). The cloture motion passed by a vote of 71 to 29, four more than the 67 needed. The Senate had spent eighty-three consecutive working days on the bill, c onducted 121 roll-call votes and delivered more than 10 million words of oratory (Oberdorfer 2003, 233). And this was only the action on the floor – the behind the scenes negotiation between the Senate leadership, the Department of Justice, White House advisers and the President himself amounted to countless hours of intense physical and intellectual effort. The achievement of the various members of the legislative and executive branches who worked so assiduously to secure the passage of the Civil Rights Act of 1964 has been described as among th e most important legislative achievements of the twentieth century. The significance of the assassination of John F. Kennedy to the whole process of passage of the Act is often specula ted upon. Some argue, as Mi ke Mansfield did, that civil rights had the unstoppable force of an idea who’s time had come (Oberdorfer 2003, 234). Others argue that the norther n, patrician, John Kennedy could not have secured passage of the Act that his successor ultimately achieved. L yndon Johnson, it is argued, with his impeccable southern credentials and his steadfast ideological commitment to the cause of civil rights, was the determining factor in passing meaningful civil rights legisl ation in 1964. We can never be sure, of course, but the contemporaneous notes made by John G. Stewart and referred to frequently in this section, may hold a key to our better understanding of the circumstances of the time. Stewart (1997) recounts a seemingly unlikely, but apparently extremel y frank, conversation 216

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between Clarence Mitchell, of the NAACP, and the leader of the southern filibusterers, Democratic Senator Richard Ru ssell of Georgia. At the time of the conversation, Stewart recounts the story in notes made on April 21st, it seems as if Russell has admitted inevitable defeat in his efforts to stop the civil rights bi ll from becoming law. The main difference Russell sees between the situation in April 1964 and the time when President Kennedy was alive is that he has no hope of defeating President Johns on on the bill, or even forcing any major compromises from him. In contrast, Russell stated that he believed that he could have gained significant compromises from President Kennedy (Stewart 1997, 95-96). Counterfactuals, or “what ifs”, are rarely informative, but always fun. Concluding Thoughts Who is the winner in the budge t battles of 1981 and 1991? Whic h side won the battle for the Civil Rights Act? Did FDR win the battle of ideas with Congress during his first one hundred days in office, or was Congress relieved to have a president in office with whom they could finally do business? Is winning a nd losing the appropriate measure to apply to any of these cases? In each of the examples cited here the president and Congressional leaders negotiated outcomes. In the case of the Civil Rights Ac t of 1964, the negotiations began long before President Kennedy’s bill was sent to Congress. The very conten t of the bill was decided in consultation among the President, his advisers and senior Congressional figures. Caution had dictated the anemic terms of President Kenne dy’s civil rights bill but Lyndon Johnson used the shock and anger following Kennedy’s assassination to thrust the House’ s much stronger bill upon the reluctant Senate. Whose bill was it? Whose success was it? Th e bill was a product of strengthening additions made by the House to a cautious original produced by a committee of executive and Congressional sponsors. The combin ed efforts of leaders on both sides in the Senate, the Department of Jus tice, the White House, and the President himself brought the bill 217

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into law. Whether it would have happened w ithout Lyndon Johnson in the White House is moot, but it certainly wouldn’t have ha ppened without Everett Dirksen, or Mike Mansfield, or Hubert Humphrey, or Bobby Kennedy, or Nic holas Katzenbach, or Larry O’ Brien, or Mike Manatos, or any number of other contributors across the federa l government. It was the product of the efforts of many and the winner was the United States. In the case of the 1981 and 1991 budgets, ne gotiations began around the prospectus prepared by the executive branch, such is the re quirement of law. In each case, however, the budget prospectus developed a cross-institutional momentum. Reagan won, Bush lost. It seems to be the simple, inescapable, conclusion. The b udget process is an annual negotiation about the priorities and resources of the federal governme nt conducted between the executive branch and Congress. Reagan did not get everything he wanted and the country should be grateful for that. The following year, in order to correct the “i njudicious cuts” of 1981 which prompted an economic recession, Reagan championed, and succeeded in passing through Congress, the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Budget Director Richard Darman described the TEFRA as “the largest single tax in crease in history” (Parment 1997, 434). George H.W. Bush negotiated the 1991 budget in secrecy after bowi ng to the politically inescapable fact that “no ne w taxes” was no longer a sust ainable policy option. Had he communicated that fact better to the American people he might well have suffered less political damage than he did. The FY 1991 budget was a product of negotiation, however, between the administration and Congressional leadership. The process did not begin until the president signaled his involvement and his acknowledgement that there should be “no preconditions” in the series of meetings that occurred at the beginning of May, 1990. It was, however, interinstitutional negotiation that produced a budget for FY 1991. 218

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The point here is simply to underscore that pub lic policy, be it in th e form of legislation through Congress or some form of presidential unilate ralism is often a cooperative venture. It is cooperative because the system of government of the United States demands that it be so. It is not possible, on the basis of this research, to sa y whether these examples represent the norm or a selection of significant exceptions. The dictates of the system of separated powers, or separated institutions sharing powers, demands cross-institutional cooperation. The act of entering into a negotiation carries with it the inevitable accepta nce of the fact that the outcome will be something less than the ideal point of each of the parties. Power is the inevitable currency of any negotiation, but the very fact of negotiation is acknowledgement that none of the parties has sufficient power to have its own way. The “winne r” does not enjoy the fu ll realization of his ideals; the “loser” does not suffer abject defeat. Such is the long recognized genius of the United States’ Constitution, yet political science continues to try to un derstand the relationship between legislative and executive branches in terms of winners or losers at an arbitrarily fixed point in an on-going process. We need to begin to understand the legislative process more holistically, to include presidential unilateralism with Congre ssional legislation, to in clude the process of negotiation and decision making, a nd to avoid the binary notion of winners versus losers. 219

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CHAPTER 8 GEORGE W. BUSH: THE COMMANDER IN CHIEF, AND TEFLON UNILATERALISM Introduction President George Washington had established th e primacy of the presid ency in matters of national security by the end of his tenure in office (Hoxie 1980, 91-99). As chief diplomat and commander in chief every president since Wash ington has enjoyed preeminence in the conduct of American foreign policy and the command of the nation’s armed forces (Hoxie 1980, 92). Powerful though these offices are, it is in the realm of internationa l affairs, perhaps more so than any other, that the president is a hostage to events that he cannot control and can rarely predict. There is little opportunity to plan for crises, they simply happen leaving the president to respond as best he can. Presidential can didate John F. Kennedy pledged not to resort to “eleventh hour responses to Soviet created crises. . . ” but as president found himsel f reacting to the Cuban Missile Crisis of 1962 with a seri es of “eleventh hour responses” to the Soviet’s ramping up of the Cold War (Hoxie 1980). It was, perhaps, Kennedy’s finest hour. Every president has faced cris es, from the Whiskey Rebellion1 to September 11th, 2001, and inter-branch cooperation and co nsultation are difficult to sustai n in circumstances of crisis management. As Senator Arthur Vandenberg complained in 1948; The trouble is that these ‘crises’ never reach Congress until they have developed to a point where Congressional discretion is path etically restrict ed. (Hoxie 1980, 97). Congress has since sought to improve its informa tion gathering in time of crisis, th e better to serve in a consultative capacity to the presid ent, but crises tend not lend themselves to management by committee and presidents acting with the mantle of commander in chief have little legal or constituti onal need of Congressional input or even support. Crisis is undoubtedly 1 President George Washington led federal forces in the field to enforce a federally mandated liquor tax in August 1794. 220

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good for the president; it enables him to flex his unilateral authority as co mmander in chief and if the crisis has a foreign dimension, as most do, he can compliment his power with his authority as chief diplomat. The ordinary burden of cons ulting and cooperating with Congress and acting upon its delegations is, temporarily at least, swept aside and, while Congress and the nation reels, the president can assert himself as a contemporar y Lincoln, FDR, or Kennedy. Once the crisis is over, however, Congress is able to reassert itself and the true extent of any permanent increase in presidential authority can be assessed. President George W. Bush was given a manda te by Congress, following the atrocities of September 11th, 2001, to use all necessary and appropriate force against nations, organizations, or persons that he determined planned, authorized, committed, or aided the terrorist attacks of September 11, or harbored such organizations or persons “in order to prevent any future acts of international terrorism against the United States by such nations, organizatio ns or persons. (Fisher 2004, 699-700). A rare blank check to a president, and one which President Bush has cashed in enthusiastically ever since. Bush has sought to advance presiden tial power to new heights, claiming authority to conduct warrentless wire-tapping of American citizens, intercept their electronic communications, and open their mail.2 Together with the holding of “enemy combatants” without trial at Guantanamo Bay and the use of secret foreign prisons by the CIA for the "incommunicado detention and torture" of suspected terrorists, the Bush administration has claimed authority unprecedented since Abraham Lincoln suspended habeas corpus at the height of the Civil War.3 The question is whether these apparent advances in presidential authority will persist for the benefit of Bush’s successors in office, as those of his predecessors (with the exception of Richard Nixon) have tended to do. Li ke Nixon, Bush has not sought to cement his 2 ____, “They've Got Mail; It might be yours,” The Washington Post , January 14, 2007. B06 3 Molly Moore, 2007, “E.U. Report Faults 16 Nations in Probe Of Secret CIA Flights,” The Washington Post, February 15th, 2007. 221

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claims to authority through consultation and cooperation with Congress. Indeed, he has maintained a distinctly hands-off relationship w ith Congress even when he enjoyed Republican majorities in both the House and the Senate prior to the 2006 mid-term elections. In this chapter I examine the Bush administration in detail; its relationship with Congress, the extent to which it has in reality increased presid ential power, and the administra tion’s overall perspective on the sources and extent of presidential authority. The Administration of George W. Bush George W. Bush’s presidency is unusual in many respects. He en joyed extraordinarily high levels of public approval following the September 11th atrocities and this continued until the latter part of 2005. Then, as the Iraq war bega n to look more and more like an open ended and costly commitment of U.S. military and taxpa yer’s resources, his approval rates tumbled, bottoming out in the low 30% range by the time of the November 2006 Congressional elections. Bush has enjoyed extremely high levels of c ooperation with the Republican controlled Congress and substantial success in steering his legisla tive priorities through C ongress prior to those elections. Yet, he has made a historically lo w number of requests for Congressional action. He has been extremely assertive in defending a nd, many argue, expanding presidential prerogatives and unilateral powers, even raising the charge that his administrati on represents the resurgence of what Arthur Schlesinger (1973) termed the “imperial presidency” (Rudalevige 2006). Yet, it took him five and a half years to issue his first legislative veto. He has, however, issued more than 750 presidential signing statements which criticize individual elements of bills passed by Congress. He has been charged with being Nixonian, a reference to his steadfast commitment, in the face of much political but re latively muted public criticism, to the warrentless wiretapping program and the detention and torture of suspected terrorist detainees, some in secret CIA run prisons abroad. He has issued somewhat fewer executive orders on average than his 222

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predecessors, but has relied to a much great er extent that his predecessors on his own Constitutional authority when doing so.4 He has twice been forced by Congress, very much against his will, to establis h independent bi-partisan comm ittees of enquiry; the 9/11 Commission into the September 11th attacks and the Baker Hamilton Commission which proposed a strategy to bring the s ituation in Iraq under some sort of control. This latter having been almost completely disregarded by the Bush administration. How can we square these apparent contradi ctions? And what are the implications for presidential authority, as devel oped by the administration of George W. Bush, for his successors? Will Bush hand over a more powerful presidency, or will the institution be so damaged by the adventure in Iraq that we will again witness a period of presidential impotence not seen since Gerald Ford and Jimmy Carter? The Bush-Cheney World View “Bush’s leading authorities are “his gut,” his God, and his vice president” (Dean 2006, 169) It is a long way from Cactus Jack Garner’s “ bucket of warm spit” to “the imperial vice presidency” of Richard Bruce Cheney.5 Cheney’s influence over the Bush administration has become the stuff of legend; so much so that the vice president jokes about it himself. When asked, at the 2005 Gridiron Dinner in Washington DC, to describe his role in the Bush administration Cheney replied, deadpan, “I would say, that I am a dark insidious force pushing 4 My research reveals that most presidents have relied upon their own constitutional authority in around 15% of the executive orders that they have issued . The balance, rely upon authority delegated to the president by Congress. President George W. Bush has relied upon his own constitutional authority in 35% of the executive orders that he has issued. The difference is not accoun ted for by executive orders issued in the aftermath of the September 11th terrorist atrocities. See Appendix b for full details. 5 John Nance “Cactus Jack” Garner was Vice President und er Franklin Delano Roosevelt from 1933 to 1941. The precise date of his statement is unkno wn but it is generally accepted that “sp it” was substituted for the somewhat stronger noun actually used by Garner. The term “T he Imperial Vice Presidency” first appeared in The National Journal (3/17/2001, Vol. 33 Issue 11, p. 814) under the byline of James A. Barnes. 223

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Bush toward war and confrontation” (Barnes 2005, 1850-1853). Insidious forces aside, Cheney’s influence over the Bush administration has been both extensive and persistent. His rsum covers some of the important political outposts of the federal government; Chief of Staff to President Ford, Defense Secretary to President George H. W. Bush where he headed the largest bureaucracy in the federal government. In Congre ss he served as Representative for Wyoming and as House Republican Whip. He headed the George W. Bush transition team and populated the upper echelons of the admini stration with his acolytes; among them Donald Rumsfeld at Defense and Paul H. O’Neil at Treasury. Cheney ’s deputy at the Defense Department, Stephen Hadley, was the President’s deputy national secur ity adviser. His former Chief of Staff, Lewis “Scooter” Libby and counselor to the Vice President, Mary Matalin, both carried the title of Assistant to the Pres ident, a rare accolade for vice presidential aides. Ch eney’s responsibilities at the White House include chairing the Budget Review Board, an extraordinarily powerful position. He is also chair of the President’s en ergy task force and the administration’s chief Congressional emissary (Barnes 2001, 814). He enjoys unprecedented ac cess to the President; Vice President Harry Truman met his boss Frankl in Roosevelt just three times between the November 1944 election and Roosevelt’s death on April 12th, 1945. Cheney meets with President Bush several times each day (Cannon 2002, 2956). Many regard him as the de facto White House Chief of Staff;(Barnes 2005) a possible explanation for the comparatively anonymous holders of the title in th e Bush administration, Andy Card and Joshua Bolton. Much of Cheney’s authority within the Bush administration undoubtedly comes from his lack of personal ambition to succeed Bush as president. At age 64 and with four heart attacks behind him Cheney might not look like good pres idential material, but most recent vice presidents have gone on to run for president in their own right. Chen ey has announced on many 224

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occasions that he has no presidenti al ambition of his own. He is, therefore, free to remain loyal to George W. Bush to an extent that most vice presidents cannot afford. In this White House, there aren’t ‘Cheney people’ versus ‘Bush people’. We’re all Bush people. I’m not running in 2008. I looked at running in , and decided against it. That was my time. In this job, I’m not spending my time figuring out how to do a side deal for a county chairman in New Hampshire or raising money for some guy in Colorado so he’ll owe me a personal favor. One hundred percent of my time is spent doing the work of the Bush administration. (Cannon 2002) Being free to concentrate on the Bush agenda rath er than having election considerations of his own makes Cheney unique among recent vice presid ents; every elected vice president since Richard Nixon has gone on to seek the presidency.6 Cheney is free, therefor e, to be utterly loyal to the administration. He is closely associated wi th the war in Iraq and co ntinues to champion the administration’s position . Former aide to Vi ce President Walter Mondale, Michael Berman described Cheney’s role as “broader than anyone else’s.” He continued “it makes Cheney freer to be a superb adviser and impleme nter [for Bush], because he doesn’t have to worry one second that what he does at the president’s instruction might affect his own poli tical aspirations” (Barnes 2005). Cheney’s White House Cheney’s role in setting up and managing th e Bush White House is important because the vice president has a very particular world view when it comes to presidential authority. I believe in a strong, robust executive authority, a nd I think that the world we live in demands it – and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of [sic] shape as we found them. (Baker and VandeHei 2005) Cheney’s formative experiences in government came as he worked his way up through the hierarchy of the Nixon and Ford administrati ons. He witnessed the Congressional backlash 6 Nixon, as Vice President to President Dwight Eisenhower, ran for president against John F. Kennedy in 1960. 225

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against the “imperial presidencies” of Lyndon Jo hnson and Richard Nixon and, as Chief of Staff to President Gerald Ford, he experienced at first hand the “nadir of the modern presidency in terms of authority and legitimacy”7. The fullest exposition of Cheney’s view of executive authority is contained, some what ironically, in the Report of the Congressional Committees Investigating the Ir an-Contra Affair .8 The committee’s findings roundly criticized the Reagan administration for its involvement in the civil wa r in Nicaragua, particular ly by its funding of the anti-communist Contra militants in defiance of law passed by Congress. Cheney, however, was the ranking Republican member of the inves tigating committee and was responsible for the preparation of a minority report which fundament ally disagreed with the committee’s majority findings. Describing the affair as a series of “mistakes, nothing more” the minority report concluded that there was no constitutional cr isis, no systematic disrespect for the “rule of law”, no grand conspiracy, and no Administrati on-wide dishonesty or coverup. In fact, the evidence will not support any of the more hysterical conclu sions the Committees’ Report tries to reach.9 Essentially turning the findings of the committ ee on its head, Cheney and the minority report contend that Iran-Contra occurred, not because th e president had too much power, but because he had too little. Congress, it is argued, had so circumscribed the constitutional authority of the president to conduct foreign policy, through such devices as the Boland Amendments,10 that the 7 Peter Baker and Jim VandeHei, “Clash is latest Ch apter in Bush Effort to Widen Executive Power,” The Washington Post , December 21, 2005. A01. 8 The Report of the Congressional Committees Investigating the Iran-Contra Affair was originally published on November 17th, 1987 jointly by the Senate and the House of Represen tatives. It is now out of print but available in read-only format at (accessed December 5, 2006) 9 Ibid. p. 437 10 The Boland Amendments, passed by Congress and sign ed by President Ronald Reagan in December 1982, pohibited covert assistance for military operations in Nicaragua and authorized overt interdiction assistance to prevent the transfer of military equipmen t to Nicaragua through third parties. ( House Amendment 461 to HR 2968). Cheney and the Minority Report regard this as an unlawf ul incursion by Congress into the foreign policy perogatives of the president and criticize President Reagan for not challenging Congress on them at the time. 226

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executive was forced to “work within the letter of the law covertly.” The minority report goes on to argue that it would have been far better, and constitutionally more appropriate, for the executive to have resisted the “unconstitutiona l” Boland Amendment and, instead, force a policy confrontation on the issue with Congress.11 Congress, it is argued, exceeded its Constitutional authority in passing the Boland Amendment and could not be trusted to keep vital national security matters secret thus threatening the international interests of the United States. The Reagan administration was, therefore, forced in to the situation of ha ving to conduct its South American foreign policy in secret so as to avoid confrontation with Congress over the Boland Amendment. Referring to an ongoing “guerilla wa rfare” between the legi slative and executive branches over control of foreign policy, the minor ity report accuses the majority of basing their conclusions, which were highly critical of the ex ecutive branch, upon an “aggrandizing theory of Congress’ foreign policy powers.”12 The president, in the view of the minority report, is not intended to be “a creature of C ongress”; he is provided by the Constitution with broad ranging discretionary powers with which Congress has no au thority to interfere. Mistakes will happen in the exercise of those powers, as the minority repo rt concedes happened in the Iran-Contra affair, but the response to those mistak es should not be an attempt by Congress to circumscribe the president’s ability to exercise his legitimate discretionary constitutional authority.13 The Iran Contra minority report was dr afted by David Addington who, since the resignation of Lewis “Scooter” Li bby, has been the Vice President’s Chief of Staff and was his chief legal counsel prior to that appointment . Addington has been described as “the most 11 Report of the Congressional Committees Investigating the Iran-Contra Affair p. 438 12 Ibid . p . 437 13 Ibid. p. 450 227

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powerful man you’ve never heard of”14 because of his role in the preparation of more than 750 executive signing statements since Bush took office in 2001.15 The controversial use of signing statements by the Bush administration will be cons idered later in this chapter but, by way of a brief introduction, signing statements are shor t statements of the administration’s position on legislation that has been sent by Congress to the President for signature into law. Many of the Bush administrations signing statements have , it is argued, reflected extreme positions on the extent of executive authority, pa rticularly in the conduct of the War on Terror (Bradley and Posner 2006). Some of the most controversial acts of the Bush administration have been the brainchild of David Addington; the proposed use of military tribunals to try terrorism suspects, the secret detention of “unlawful enemy combat ants” and the use of a ggressive interrogation techniques, and the collection of warrentless electronic surv eillance on terrorist suspects, including U.S. citizens. These have all been traced back to Addington.16 Once described as Vice President Cheney’s “ Mein Kampf”, the minority report expresses a startling perspective on executi ve authority and reads almost as a blue print for the model of the executive branch as it has b een constructed by the Bush-Che ney administration. With such a striking perspective on executiv e authority, what has been the record of the Bush administration’s interactions with Congress? George W. Bush and Congress From the Bush-Cheney world vi ew, we might expect the ad ministration to have had a combative relationship with Congress. This has not proved to be the case, at least not before the 14 Chitra Ragavan , 2006, “Cheney’s Guy,” US News and World Report, May 29, 2006. 15 The figure of 750 signing statements comes from the article by Charlie Savage, “Bush Challenges Hundreds of Laws; President Cites Powers of His Office,” Boston Globe , April 30th, 2006. A1. The article has often been referred to in discussion of Bush’s signing statement strategy. 16 This passage developed in conversation with John W. Dean III, December 2, 2006. 228

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Congressional elections of Nove mber 2006 delivered the House and Senate to the Democrats. In fact the Bush administration has limited its engagement with Congress to an extent unprecedented in recent times. With Republicans in control of both the House and Senate until November 2006, President Bush has relied upon the Republican Congressional leadership to keep the rank and file membership in line and de liver the President’s policy priorities (Edwards 2007, 159-162). In contrast with his predecessors, Bush has rarely sent detailed legislation to Congress and he is highly selec tive in the issues that it promot es with Congress. In 2004 the Office of Management and Budget (OMB) issued 61 formal statements of administration policy in relation to bills and resoluti ons that were before Congress. This compares with 142 formal OMB statements in the last full year of the Clinton administration. The Bush White House took a formal position on just 11 contentious issues (decided in a roll-call vote in the Senate and excluding nominations) in 2004 (Edw ards 2007, 160). Bush has famously avoided use of his veto pen during the first five and a half years of his presidency; executive restraint unprecedented since Thomas Jefferson. He was eventually moved to exercise his first, and so far only, veto on a bill which sought to provide federal funds for embr yonic stem-cell research, an issue that goes to the heart of Bush’s evangelical and conservative electoral base.17 President Bill Clinton issued a total of 37 vetoes during his two terms and Bush’s father issued a total of 44 during his single term.18 In terms of executive orders, President Bush has issued somewhat less than the average for his immediate predecessors. Excluding 2001 (which saw numerous executive orders issued in connection with the September 11th atrocities). Bush has issued an average of 36 executive orders each year compared with an average of 44 for Bill Clinton, 40 for George H. W. Bush, 17 Sheryl Stolberg, “Bush’s Record: One Veto, Many No’s,” New York Times, July 23, 2006. 18 Presidential Vetoes 1989 2000 , Compiled by the Senate Library, October 2001. 229

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and 47 for Ronald Reagan. The numbers do not appear striking, but George W. Bush has issued a not insignificant average of 18% fewer executive orders each year than the average of his three immediate predecessors. In contrast to his father, who tended to c onduct negotiations with Congress in private, George W. Bush has adopted an approach to policy promotion that George C. Edwards III has termed “governing by campaigning” (Edwards 2007) . Rather than engage Congress directly in debate over policy, Bush Junior has “taken his case to the public in an unprecedented fashion.” (Edwards 2007, 281). The public have proved to be difficult to mobilize however. As Samuel Kernell has pointed out twenty years ago, Presid ents who are Washington outsiders, as Bush is and as Jimmy Carter and Ronald Reagan were before him, can find it useful to attempt to arouse public opinion in support of th eir policy preferences (Ker nell 1997). Indeed, Bush proved himself to be the consummate campaigner duri ng the 2000 and 2004 presiden tial elections and it is the natural tendency among gifted campaigners to keep right on campaigning. As Kernell also observes, however, going public can only hope to influence the policy making process at the margins. The number of members of the public who are influenced by presidential oratory will always be limited and the number of members of Congress who are in fluenced in turn by constituents who have been moved to respond to the president will be rela tively small. Despite “launching the most extensive public relations ca mpaign in the history of the presidency” Bush was unable to garner public support for his plan s to reform Social Se curity. Seeing the public response, or lack of it, to th e president’s initiati ve Congress abandoned consideration of his proposals. The process of governing by campaigni ng is blamed for exacerbating the partisan divide in Congress. Hugh Heclo argues that governing by campaigning is inherently antideliberative (Heclo 2000, 11-15, 34). Th e object is not to debate the merits of policy, but rather 230

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to increase the costs associated with opposition. Th e result is conflict rather than persuasion, policy becomes a take or leave it proposition rather than the pr oduct of cooperation and debate. With the relative failure of governing by campaigni ng, Bush has been fortunate in being able to rely upon the Republican leadership in Congress to deliver his policy preferences. Of the limited number of unambiguous positions taken by the Bu sh White House in 2004, it was successful 72.6% of the time; an extraordinary success rate fo r an incumbent president in an election year. Overall, Bush’s formula of remaining dise ngaged from Congress on many issues and using his political capital sparingl y – but aggressively and to great effect – has proven advantageous, allowing him to mini mize his defeats. (Schatz 2004, 2900). In his first four years in office Bush enjoyed an overall legislativ e success rate of 81%; enough to rival that of Lyndon Johnson and the third hi ghest since 1953 when Congressional Quarterly began measuring presidential support scores (S chatz 2004, 2901). There has been a remarkable degree of consensus on policy issues between th e Republican leadership in Congress and the President. Joseph Schatz, writing in CQ Weekly (2004) , points out that the Republicans in Congress have shown a high level of commitme nt to their president, avoiding potentially offensive legislation which might prompt pres idential veto and mana ging party cohesion to ensure that presidential capital is preserved for the most important and controversial policy initiatives (Schatz 2004). The uni fied Republican front in the Wh ite House, House and Senate has been maintained where other Presidents with a Congressional majority, such as Jimmy Carter and Bill Clinton, have tended to squander their advantage. John Feehery, press secretary to House Speaker J. Denis Hastert (R -IL), confirms “Philosophically, we’re very close. They can usually steer us with a light touch” (Schatz 2004 ). While the House responded to Bush’s “light touch”, the Senate, during Bush’s first term , was highly partisan with Republicans voting together 90% of the time. 231

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As Bush entered his second term, in January 2005, relations with Congress were beginning to fray. Contentious pol icy issues that had been he ld back from Congressional consideration during the fi rst term were tabled at the beginning of the second; just about the time that the wisdom of the war in Iraq was coming into serious question. Social security reform, which Bush envisaged as a form of partial priv atization, further tax reform and a new policy on immigration were all sensitive electoral issu es for the Republicans who would be seeking reelection in 2006. As it happens, each of those initiatives has fallen by the wayside in the face of sustained Congressional opposition. Opposition to Bush has not saved the Congressional Republicans however. As Bush’s approval ratings sank, the November 2006 elections delivered the House and Senate to Democratic control for the first time since 1994.19 The administration which has, according to George C. Edwards ( 2007), “governed by campaigning” had finally run out of appeal. At the same time as the Bush administration has maintained a limited engagement with Congress it has advanced a bold stance on executive authority. Through the extensive use of signing statements and in matters related to the Wa r on Terror. This assertive stance on executive prerogatives has apparently not harmed Bush’s relationship with Congress but assorted legal setbacks have undone some of the bolder assertio ns of presidential unilateral authority. The Supreme Court struck down Bush’s assertion that military commissions should be used to try the “unlawful enemy combatants” being held at Guan tanamo Bay, Cuba and in assorted secret CIA prisons across the globe. The Cour t, newly refurbished with two Bush appointees, Justices John Roberts and Samuel Alito, told the administratio n that it needed to consult with Congress in 19 ential/webroot/presidential_rating.cfm (accessed December 6, 2006). 232

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order to create good public policy. 20 21 Writing the majority opinion, Justice Stephen Breyer distilled the court’s judgment to a simple stat ement of fact; "The Court's conclusion ultimately rests upon a single ground: C ongress has not issued the executive a ‘blank check’.”22 Former White House Associate Counsel, Bradford Bere nson, argues that President Bush has probably succeeded in his goal of strengthening the legal au thority of the executive branch, but at the cost of reminding us that “what’s le gally possible insn’t always po litically wise” (Bettelheim, 2006, 2858). Ironically, Bush’s defeat in the Supreme Court has forced him closer to Congress; consultations about how to treat the “unlawful enemy combatant” detainees took place between the White House and the Congressional Republican leadership almost imediately and Bush signed the resulting law, which es tablishes the laws governing the trial of the detainees through “military commissions”, on October 17th 2006 – just three months after the Supreme Court decision in Hamdan.23 The Supreme Court had already intervened to declare that the Bush administration’s assertion that the U.S. courts had no jurisdic tion to decide whether foreign nationals being detained at the Guantanamo Bay interoga tion center were being held there legally.24 Bush had compared his authority to suspend habeas corpus with that of Abraham Lincoln during the Civil War, but the Court was unimpressed and, again, to ld the administration that Congress and the Executive branch had joint responsibility in the conduc t of military affairs. 20 Chief Justice Roberts recused himself because he had previously considered the case as a justice in the US Court of Appeals for the District of Columbia Circuit . 21 Hamdan v. Rumsfeld. 2006. 548 U.S. _ 22 Ibid. p. 82 23 The Military Commissions Act of 2006. Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006) 24 Rasul v Bush. 2004. 542 U.S. 446 233

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. . . there is a realm of political authority ove r military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of th e President and the Congress, in the conduct of military affairs.25 Since the November elections President Bush has been anxious to court the new Democratic leadership in Congr ess. The day after the election Bush cited immigration reform and an increase in the minimum wage as pot ential opportunities for a raprocment with the Democrats (Simendinger 2006, 21-23). Defense Secretary Donald H. Rumsfeld became the first casualty of the new political landscape, cast overboard by Bush in order to telegraph a willingness to be more flexible in his approach to the war in Iraq. Also gone is the former Majority Leader of the Senate, Bill Frist (R-TN) who was inclined to defer to the administration to an extent unlikely to be continued by his successor as Republican Minority Leader, Mitch McConnell (R-KY). McConnell is far more a creature of the Senate than Frist ever was and is likely to strive to preseve its institutional inepen dence. Ross Baker, a political scientist at Rutgers University, points out that “McConnell does not have White House fingerprints on his leadership. That was the problem with Frist.”26 The Republican members of Congress are not necessarily behind their presid ent’s charm offensive with th e new Democratic leadership however. With eyes firmly on the presidenti al and congressional elections in 2008, many Republicans want to see a return to conserva tive values, like fiscal prudence and smaller government, rather than attempts at a compromi se with the Democrats. The President, on the other hand, has to govern if he is not to become a lame duck in his final two years. With his legacy currently stuck in the sands of the mi ddle east Bush will be anxious to leave behind something to distract the historians from the fa iled neo-conservative approach to foreign policy. 25 Concurring Judgment of Kennedy J. in Rasul v. Bush. 2004. (03-334) 542 U.S. 466 26 Rasul v Bush .2004. 542 U.S. 446. 234

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Plans for reform of the bankrupt Social Security system may be revived, but it will be hard to reduce the deficit and repair Social Security without raising taxes – a definite no-no for Congressional Republicans seeking to recover control of Congress and retain the White House in 2008. Bush will also be reminded of his father’s “read my lips” pledge which cost him the 1992 election, but at least he would have made it to hi s second term before consorting with the idea of tax increases. Kenneth Collier presents a theory of el ectoral expectations which claims that “presidential influence in Congress is the product of the White House’s ability to shape the electoral expectations of members of Congress” (Collier 199 7). If members of Congress believe that the President might, and it need only be might , influence the outcome of the next round of Congressional elections, they are likely to be more receptive to White House influence. Collier quotes a senior Congressional staffer in the Republican party: “Congress is a very human institution, complete with insecurities” (Collier 1997, 13). Thos e insecurities, Collier argues, mean that even if members of Congress perceive th at the President’s influence might be slight, it is a prospective advantage that they are not likel y to neglect. Rather th an cross a President who just might have some influence over the outcome of their next bid for re-election, members of Congress will, Collier argues, tend to stick with the President on policy issues just in case . This, of course, is a two-way street; as presidential influence wanes, so Congress will tend to become more independent. Republicans in Congress s eem to have concluded, and the November elections can only serve to uderline their conclusi on, that George W. Bush has lost the sheen of electoral influence that he held as late as the elections of 2004, when Bush’s approval ratings remaned at an unprecedented high. Instead, he has become an electoral li ability. In Collier’s analysis it therefore makes sense for them to begin to distance th emselves from the President and 235

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avoid the strategy of cosying up to the new Demo cratic leadership. For the Democrat’s part a close or cooperative relationship with a lame duck Republican President would seem to hold little attraction either. The only leverage Bush has over their legislative out put is to dust off his veto pen. Overriding presidential vetos is likely to be a tricky business in the tightly divided Senate unless Senate Republicans are prepared to join with the Democrats to add distance from the president. The Curious Explosion of Interest in Signing Statements Ask a former White House Counsel how he regarded presidential sign ing statements when he was in office and he is likely to answer that they are not worth the paper they are written on.27 The administration of George W. Bush has, ne vertheless, issued more presidential signing statements than any previous holder of the offi ce. Does the Bush admi nistration know something that the other former White House Counsel don’t? Presidential signing statements have been in use for more than 200 years and, since the New Deal, have become routine expressions of pr esidential views on pieces of legislation that come to the president for signature. They have been applied in a multitude of ways to describe the bill in general terms; to explain the bills purpose ; to praise the bill’s sponsors or supporters; to criticize Congre ss for going too far, or not far enough, in addressing the problem the bill is supposed to solve; to advance a particular interpretation of specific provisions of the bill; to explain how the bill will interact with existing statutes; to explain how officials in the executive br anch will impliment th e bill; and to remind Congress of the president’s constitutional powers. (Bra dley and Posner 2006, 1). Of course, it is the signing statements that offer an interpretation of the bill or make an assertion of the president’s Costitutional powers viz-a-viz the bill which tend to cause the controversy. Such was the case with the signing statement that the President issued when he signed the 27 Author’s Telephone Interviews with William Casselman an d John W. Dean, November/December 2006; White House Counsel to Presidents Nixon and Ford respectively. 236

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Defense Appropriations Bill of 2006. Senator John McCain (R-AZ) sponsored an amendment to the bill which prohibited “cruel, inhuman, or degrading treatme nt or punishment of persons under custody or control of th e United States’ government.”28 The amendment had been negotiated directly between the President and Senator McCain at the White House and received wide spread Congressional and public support coming, as it did, in the wake of the Abu Grhaib prison affair and growing doubts about th e detention center at Guantanamo Bay.29 Nevertheless, President Bush issued an signing statement to accompany the bill whic h said that he would construe the amendment . . . in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander-in-chief, and consistent with the constitutional limitations on judicial power which will assist in achieving the shared objective of the Congress and the President, evidenced [in Title X of the b ill], of protecting the American people from further terrorist attacks.” (Friel 2006, 65-66) The general perception of Bush’s signing statemen t is that it effectively negates the McCain amendment by asserting his powers as commander-in-chief have precedence over the statute. A flurry of media criticism followed. The American Bar Association established a task force to look into the use by the president of signing statem ents. It concluded that “the use, frequency, and nature of the President’s signing statements demonstrates a “radically expansive view” of executive power which “amounts to a claim that he is impervious to the laws that Congress enacts” and represents a serious assault on th e constitutional system of checks and balances.”30 In June 2006 the Senate convened hearings to co nsider the President’s us e of signing statements during which Republican Senator Arlen Specter (R -PA) expressed his concerns about the Bush 28 Defense Appropriations Bill 2006 29 Brian Knowleton, “Bush and McCain Reach Deal on Treatment of Terror Suspects,” International Herald Tribune , December 15, 2006. 30 American Bar Association “ Task Force on Presidential Signing Statements and the Separation of Powers Doctrine .” August 2006. 237

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administration’s use of signing statements and Se nator Patrick Leahy (D-V T) expressed his view that they represented a “grave threat to our constitutional system of checks and balances.”31 The legal academic community, a band al ways in search of a wagon, also weighed into the debate (Cooper 2004; Kinkopf 2006).32 The sudden excitement over presidential signing statements is something of a puzzle. None of President Bush’s signing statements have been challenged in court and the conventional wisdom among the former White House Counsel whom I have interviewed is that, since signing statements are not part of the legislative history of a bill, they are unlikel y to carry much, if any, weight in legal proceedings. Hi storically the courts have paid little attention to signing statements. If anything, signing statements repr esent a public statemen t of the president’s interpretation of legislation whic h he might otherwise keep to hims elf. Nothing in recent history has changed any of this. The argument that signi ng statements can act as an instruction to the officials in the executive branch to implement legi slation in a particular way, or to prioritize one policy area over others, is not pers uasive; the president has always had the authority to prioritize the application of laws and to advance his own interpretation of statutes to his subordinates (Bradley and Posner 2006, 3). Bradley and Posner conclude, I believe accurately and astutely, that what is at issue in the debate over the Bu sh administration’s use of signing statements is not the signing statements themselves, but rather the Bush administrations underlying views about presidential power. This brings us squarely back to the Bush Cheney world view discussed earlier in this chapter. That pres idential power is in n eed of serious restora tion. In this debate, I would argue that signing statements are a diversion from the r eal issue at hand. 31 Jonathan Weisman,”Bush’s Challenges of Laws He Signed is Criticized,” The Washington Post , June 28, 2006. A09. 32 Richard A. Epstein, “The Problem w ith Presidential Signing Statements,” Chicago Tribune , July 16, 2006. 238

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Teflon Unilateralism The lesson of the administration of George W. Bush may be that presidential unilateralism is unlikely to prevail in th e longer term if it is not c onducted within a framework of Congressional cooperation. The boldest assertio ns of presidential uni lateralism by President Bush have been made in the conduct of the War on Terror. Some of these have already been set aside by the Courts; the claim that U.S. courts cannot hear applications of habeas corpus from foreign detainees at Guantanamo Bay and the rejection of trial by military tribunal of “unlawful enemy combatants.” For others the new Democr atically controlled Congress must decide whether it will openly challenge the President. The use of torture in the interrogation of “unlawful enemy combatants” and the detention of suspects at secret fo reign prisons are being targeted by Senator Patrick Leahy (D-VT), th e ranking Democrat on th e Senate Judiciary Committee and the Committee chairman in the 110th Congress. Leahy has written to Attorney General Alberto Gonzales reques ting the release of a slew of administration documents relating to detention and interrogation policies.33 Among these are directives by the President authorizing the establishment of foreign detention centers and prescribing the interrogation procedures to be used there. Another is the background documents relating to the legal advice given to the President by the Justice Department which advised that, as Commander in Chief, the President is not bound by international treaties or federal la w prohibiting torture. The memorandum itself, prepared in March 2003 and leaked to the Wall Street Journal in June 2004, was approved by lawyers in the Defense Department and the White House. David Addington, Vice President Cheney’s then counsel now chief of sta ff was also involved in the deliberations.34 33 States News Service, Washington D.C. November 19th, 2006 34 Neil A. Lewis and Eric Schmitt, “Lawyers Decided Ban on Torture Didn’t Bind Bush,” New York Times , June 8, 2004. A1. 239

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The big question is whether, and how hard, the new Congress will challenge the President on the NSA program of warrentless domestic surv eillance. Democrats have argued previously that the program breaches the provisions of th e Foreign Intelligence Surveillance Act of 1978 (FISA).35 FISA provides special procedures for the conduct of physical and electronic surveillance for the collection of foreign intell igence information and established the Foreign Intelligence Surveillance Court to authorize such surveillance, including wire taps. The Act prescribes the circumstances in which American citizens for whom there exists “probable cause” that they are “agents of a foreign power” ma y be the subject of surveillance. The Bush administration has argued that it is inherent in the President’s authority as Commander in Chief that he has authority to authorize the NSA to conduct surveillance of American citizens and that, in any event, Congress authorized the President when it issued its joint resolution following the September 11th atrocities providing the President with the authority to “use all necessary and appropriate force. . . to preven t any future acts of international terrorism against the United States.”36 Most observers agree that it would not have been hard to use the exiting FISA court system to obtain authorization for the surveillance; the Act even pe rmits warrants to be granted retrospectively. The administration has acknow ledged that it sounded Congress out on the possibility of amending FISA after September 11th but that it was told not to try (Harris 2006, 55-56). It seems hard, therefore, for the administ ration to make the argument that it believed the AUMF gave authority for the surveillance activity while at the same time acknowledging that its attempts to have FISA amended to provide th e necessary authority were rebuffed. Whether or 35 Public Law 95-511 36 A joint resolution of the House and Senate entitled “Aut horization for Use of Military Force” Public Law 107-40 [S. J. RES. 23] passed September 18th, 2001. (AUMF) 240

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not Congress, with its new Democratic complexion, is willing, or ab le, to challenge the President’s interpretation of the law on domestic su rveillance, the fact is that the President has left himself open to challenge because he acted unilaterally. If he had in volved Congress in the surveillance program at the outset it is likely that, in the heady atmosphere of the post September 11th days, Congress would have come to some accommodation with the President to provide something like the surveillance program that he desired. Now, having acted unilaterally, the program is vulnerable to Congressional interven tion and the President has failed to cement the power of the executive in this regard for the future. Similar bold acts of presidential unilateralism have come unstuck in the past. Richard Nixon declined to spend funds that had been appropriated by Congress for sp ecific projects. The unilateral power to impound funds had been used by presidents since Jefferson, often more extensively that the 3.5% of Federal f unds that Nixon held in 1973 (Nixon 1978, 772).37 Nixon’s use of the impoundment authority, however, prompt ed Congress to pass legislation stripping Nixon, and all subsequent pr esidents, of the power.38 Nixon also sought to reorganize the executive branch unilaterally in a way that w ould have made it more difficult for Congress to perform its oversight responsibilities. Following on the recommendations of the Ash Commission, which Nixon had established to exam ine the organization of the executive branch when he came to office in 1969, Nixon had proposed a wholesale reorganizat ion of the executive branch to Congress during his first term but it ha d been rejected. In 1972, after his landslide reelection victory, Nixon decided to implement as mu ch of the Ash plan as he could unilaterally. 37 Nixon recounts that John F. Kennedy had impounded 7.8% of the Federal budget in 1961, 6.1% in 1962 and 3% in 1963. Lyndon Johnson impounded 3.5 % in 1964 rising steadily to 6.7% by 1967. As Hoff points out, however, Nixon carried on the initiative of Pr esident Lyndon Johnson in impounding funds appropriated for domestic programs rather than confining him self to the foreign relations budget (Hoff 1994, 26-27). 38 By means of the Congressional Budget and Impoundment Act of 1974. 241

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This prompted a “venomous congressional count erattack” and the clai m by Hubert Humphrey that “ a constitutional crisis” was fast a pproaching (Nixon 1978, 772). Ultimately, some important actors in the Nixon administration believe that the Congr essional pursuit of impeachment of President Nixon was prompted, at least in part, by the President’s unilateral tendencies. They share a feeling that, as the wa r in Vietnam came to a close, it was time for Congress to reassert itself agains t a President who had done his level best to circumvent the will of Congress.39 Whether that is true or not, Nixon knew full well th at he was challenging Congress with his use of impoundment and execu tive reorganization and he knew that Congress was bound to respond (Nixon 1978, 770-773; Hoff 1994, 50 -76). Watergate provided the ideal stick with which to beat Nixon in the end, but it is naive to believe that the fall of Richard Nixon was all about Watergate. Concluding Thoughts: An Unprovable Hypoth esis on the Bush-Cheney Administration The puzzle of limited Congressional engagement combined with a strong assertion of presidential prerogative powers is unique to the administration of George W. Bush. On the one hand Bush has made limited legislative proposals to Congress, while on the other he has made extensive use of his own unilate ral authority. Congress, with its friendly Republican majority, took care to husband the President’ s political capital a nd tacitly supported the President’s most extreme assertions of executive prerogative in th e form of the warrentless NSA surveillance program. Rather than veto offensive legislati on, the President has made his objections known in the form of signing statements, hundreds of them . The extensive use of signing statements, and the high level resources used in their preparation suggests that the Bush administration has a view of their efficacy which is at odds with hi s predecessor’s apparent disdain for them. Bush’s 39 Ideas from author conversation with John W. Dean, November 2006. 242

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“perpetual campaign” has had little political pay off, even with the friendly Republican controlled Congress. In a sense Bush is Nixonian, but not in the sense that the term has been applied by most contemporary commentators so far. As I suggested in Chapter 4, Nixon governed after the fact, by which I mean that he would permit the Demo cratically controlled Congress to enact its legislation, then he would seek to dismember th e parts that he found offensive, or reorganize congressional policy priorities, after he had signed their bills into law. Impoundment overturned Congressionally authorized sp ending priorities after they had been passed into law, reorganization of the executive branch was aimed at creating a form of co rporate governance that would make it more difficult for Congress to con duct its oversight of the executive branch, the creation by Nixon of multiple polic y task forces acted to ta ke policy making away from departments and agencies, where Congressional influence was str ong, and place it in the hands of individuals who were sympathetic to executive authority. The creation of executive agencies to regulate consumer protection and environmenta l matters put an executive stamp upon the implementation of policy in areas that were sensitive to the Republican political base. In these and assorted other ways, Nixon governed after the fact .40 George W. Bush seeks to do the same. He has limited his engagement with Congress, leaving the Republican leadership there to take care of policy development and implementation. Such is the ideological proximity of the White House and the Republican leadership in Congress that there is relatively little need for th e President to force his agenda upon them. En route, through Congress and on to the President’s des k, legislation picks up unwanted flotsom as a result of the cut and thru st of the legislative process. Those elements which are offensive to both 40 Ideas developed in conversation with Michael Hoover Ph.D. 243

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the President and the Republican leadership find th emselves the subject of a Presidential signing statement that “over-rules” them , at least in the minds of the Bush-Cheney administration. Through the extensive use of signing statements, th e President is effectiv ely applying a line-item veto to legislation; a tool long favored by Republicans. The 1991 budget negotiations conducted by Bush’s father included a move to enact a lin e-item veto for the President through legislation. It was taken up in earnest as part of the Republican Revolution of 1994 and House Speaker Newt Gingrich’s “Contract With America”, but had the unfortunate happenstance of becoming law during the currency of the unexpected Democratic presidency of Bill Clinton. Nevertheless, the Republican obsession with line-item vetoes is alive and well and taking on new life as a consequence of a highly devel oped expression of presidential unilateralism advanced by the Bush-Cheney world view, and by the administration’s practice of governing, a la Nixon, after the fact. The Republican leadership sees robust prosecution of the War on Terror as a fundamental issue of national security and supports the Presid ent in his conduct of it. There is no need to make painful legislative compromises when the President assumes the authority to conduct the “war” on his own terms. The Republican leadersh ip has been happy to leave the President to assume as much latitude as he is prepared to take, and with the Bush-Cheney world view, that has been plenty. The trouble comes now; with none of the expansive assumptions of presidential unilateralism secured in place with formal Congr essional consultation and agreement, the new presidential unilateralism becomes vulnerable to the change in the political landscape that follows the Democratic victories in the Nove mber 2006 elections. Maybe it would have anyway, but its chances of survival would probably have been much better if the decisions had been made jointly rather than unilaterally. 244

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The revival of the “ imperial presidency ” epithet is interesting in its own right. Nixon’s Watergate folly meant that liberals like Arthur Schlesinger Jr. (1973 & 1997), who since the days of Roosevelt and Kennedy had wanted to see a more powerful and expansive presidency, were suddenly confronted with the logical c onclusion to their argument; Richard Nixon.41 When seen from the vantage point of Watergate, Johnson’s c onduct of the war in Vietnam began to take on a similarly imperialistic hue. The problem was not the strong president, it was the strong president as personified by Richard Nixon and Lyndon Johnson. After the relatively weak presidencies of George H.W. Bush and Bill Clinton, followed by the September 11th attacks, the War on Terror and the quagmire of Iraq, could it be the case that a strong and unilaterally assertive president has once again gone out of fashion? Nixon said that he gave Congress a sword “and they stuck it in. And they twisted it with relish. . . ”(Frost 1978). The sword, of course, was Watergate. It enabled Congress to remove a president who sought to govern after the fact . Has Bush given Congress a sword too, with his adventure in Iraq? Only time will tell. But we should remember the rest of the Nixon quotation; “. . . and I guess if I had been in their positi on I’d have done the same thing” (Frost 1978). 41 For a Nixonian interpretation of this argument see Nixon (1978, 771). 245

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CHAPTER 9 CONCLUDING THOUGHTS Full Circle I’m not annoyed by Neustadt anymore. He articul ates the power of the presidency in such exquisite terms that to argue with him can s eem like nit-picking. Bo th the presidency and Congress have changed however since the time of Eisenhower a nd the mid-century era when Neustadt first wrote Presidential Power in 1960. The power to persuade is all together a too one sided expression of the modern relationship between the presiden t and Congress. The president has more than the logic of his argument to rely upon. Congress have come to depend upon him to set the policy agenda, to organize its multiplicit y of perspectives into a coherent legislative palette from which it can take and mix the policy op tions with the representative perspective that only it can provide. Bargaining infers trading or an exchange of favors; such transactional language accounts for some, but not most, of th e president’s relations hip with Congress. Separated institutions sharing powers is too benign; it implies a harmonious relationship among parties of similar relative power engaged in a commonly agreed purpose. It is, however; equally wrong to characterize the president’s relationshi p with Congress as an unremitting battle for dominance and submission, a zero-sum game, as much modern presidential literature is apt to do. The relationship between Congress and the presid ent is undoubtedly competitive. It can be antagonistic and can occasionally degenerate into deep hostility and distrust. Ultimately, however, Congress and the president need each other.1 Congress cannot execute the laws that it passes; it relies upon th e president to do so on its behalf. A hostile president may warp Congressional priorities, as Richard Nixon did, l eaving Congress with no short term means of response. More commonl y however, the president and Congress will have 1 Much of this chapter developed out of correspondence with Lawrence C. Dodd. 247

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negotiated much of the legislativ e output of the federal government together. While neither will have achieved everything it hoped for, a degree of c onsensus, or at worst, resignation, is likely to have developed between the two. The executive can therefore carry out the laws in a manner that is reasonably consistent wi th the legislative branch’s expect ations. We don’t often hear the claim from the Congress (as distinct from disaffe cted individual members of Congress) that the president is warping its legislative intent; still rare r is any Congressional attempt to re-legislate to correct executive branch implementation. The president must act in time of crisis, when the deliberative processes of Congress conflict with the needs of the moment, but he must act in a balanced and reasoned manner, having regard to the ultimate power of the Courts to overrule him and Congress to undo his actions or deprive them of funds. As Arnold and Roos point out, The president provides focus and Congress provides heterogeneous representation. Ultimately, good public policy can be made only in the presence of both qualities (Arnold and Roos 1974, 273). This is “majoritarian democracy.”2 Congress as the heterogene ous body represents the local constituencies, regions and interest s of the nation at large. With its responsive and representative nature it brings a legitimacy to the federal gove rnment that the president alone cannot provide. Public policy cannot be made in Washington. It has to be informed by exposure to the hopes, fears, aspirations and prejudices of the grass roots electorate. To do otherwise it is to rule by an elite consensus which is as unsustainable as it is unpleasant. Congre ss grounds the system and, as the struggle over civil rights in the United St ates illustrates better th an anything, it can be ugly. But it is the basis of an enduring democr acy of more than 300 million and the backbone of the world’s most powerful nation. The government of the United States is a collective exercise; 2 Arnold and Roos (1974) quote this phrase from the original in Reiselbach, Leroy N. 1974. “In the Wake of Watergate: Congressional Reform?.” Review of Politics 36 : 371–393 248

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the Founders made it that way. The institutions are separated and they are forced to negotiate outcomes . Power is the currency of those negot iations but neither side has permanent dominance. The current system of policy making demands cooperation and consultation. Effective governance demands delegation by a repr esentative and responsive Congress to an executive that acknowledges its legitimacy. Rich ard Nixon denied Congress’ legitimacy and it is that which eventually undid him. “Keep the Cufflinks Flowing” Institutionalism, with its concentration upon vot e counting, institutionalization and unilateralism, is focusing upon a later phase in the political process than Neustadt. It concentrates on the outcomes of Congressional and executive interac tion rather than the consultation, cooperation and negotiation that goes on prior to the vote. Th e policy output of the federal government is the product of an extended process however, and it begi ns long before there is something tangible to measure. Institutionalists focus upon the field of play, beginning their analysis some time after the game has started. To do so is to miss the pre game strategy meetings, the talk in the dressing rooms and the psyching out of the other side. Kenneth Mayer counts seventy-one executive orders from his sample between 1970 and 1999 as having a degree of policy significance, by which he means that they were referred to in th e press, Congress, or judicial proceedings, were publicly announced by the president, or establ ished a new federal government agency with “substantive policy respons ibility” (Mayer 1999, 84 – 85). A fa ir basis for the category. Mayer argues, as do others (particularly Howell 2003 a nd Warber 2006) that th ese unilateral powers of the president are the tools available to him by wh ich he can make law independently, perhaps in defiance, of Congress. Yet fully 79% of Mayer’s policy significant executive orders rely upon authority delegated to the president by Congr ess. Overall, between 1936 and 2006, more than 249

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82% of all executive orders rely upon such delegated authority.3 By focusing solely upon outputs, be it legislati on or executive orders, we are missing ke y aspects of the process that leads to these outputs. The negotiations that take place before a bill is ever introduced to Congress, the consultation and cooperation between the White House and Congressional le aders as it makes its way from committee to floor to conference committee to the president’s desk. Alexander Butterfield, a deputy assistant to President Nixon and the pr inciple assistant to Chief of Staff Bob Haldeman, told me that Nixon would “game-plan” everything when pushing for Congressional support. In the countdown to a crucial vote in Congress Bryce Harlow and Bill Timmons, the two senior members of Nixon’ s Congressional liaison team, would report to Butterfield on the latest count of those members for the president, against him, and sitting on the fence. Nixon would “read that like it was the bible” and coming down the home stretch we had a daily game plan that we were executing; who they [Harlow and Timmons] thought should be called, call this guy and wish him happy birthday. And then we began to use all those things that only a pres ident can use. They come under the heading of tools of persuasion I guess, but they really work. You have some [Congressman] come over to the White Hous e for breakfast with the president of the United States, and he will milk that for the ne xt eighteen months. Or the president happens to be going to Ohio, and he’ll call the Ohio guy and say “would you come along, we can talk on the plane.” Very flattering and it just makes all kinds of goodwill for the president. Just the use of the trappings of the presiden t, Key Biscayne, Camp David, Air Force One, breakfast at the White House, meeting the pr esident and other Congressmen in the Cabinet Room; that would just mean the world to so me people who had never even been in the White House. 4 The effect of such things is not quantifiable yet, on Butterfield’s account, they are crucial to the president’s effort to influence a nd negotiate with Congress. Presid ent Nixon always kept sets of cufflinks and brooch pins bearing the presidential seal in his desk drawer in the oval office, ready to be handed to visiting members of Congress; cufflinks for him, a brooch pin for his wife, for 3 See appendix b 4 Author’s interviews with Alexander Butterfield, May and September 2006. 250

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there were few women in government in the ear ly 1970s. Butterfield emphasizes the importance to the president’s legislative priorities of keeping the cufflinks flowing . He had to retrieve the gifts from the president’s drawer and thrust them solidly into his boss’s hand, so clumsy was Nixon that the handover was rarely a smooth affair and Nixon would often drop the gifts before they got to the hand of the visiting dignitary.5 In the closest attempt to bring Congress into the institutional analysis of presidential power Mark Peterson proposes a tandem institutions approach which denies that the presidential/Congressional relations hip is zero-sum in nature (Pet erson 1990). Peterson describes the relationship between Congress an the president as “symbioti c” and makes reference to “the elaborate contexts in which the institutional in teractions are played out”(Peterson 1990, 6). In applying quantitative methods, however, Peterson t oo is dependent upon an approach which fails to capture the early stages of the game. In fact he denies that the early stages of the game are relevant at all. He, like me, relies upon intervie ws with former White House staffers from which he is able to confirm that “consultation [bet ween Congress and the White House] is a fairly common activity and. . . there is often communication about specifi c legislative proposals being considered by the president” (Peterson 1990, 57). He also confirms that “consultation does have an effect on the legislative agenda” and that 78% of his informants reporte d that consultation did influence the substance of the presidents initiatives (Peters on 1990, 57). He even acknowledges that much of the president’s legislative program is based upon policy initiatives that originated in Congress. He then concludes, seemingly in de fiance of the evidence that he has offered, that since the president is unable to anticipate Congre ssional reaction to his proposals, the consultation with Congress is to no effect; that is, despite the rich evidence of extensive 5 Ibid. 251

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consultation between the president and Congress, Peterson concludes th at it has no effect upon the legislative proposals that the president makes to Congress. He argues that “presidents and their aides can only formulate loose guesses about the outcomes [of consultation with Congress]” (Peterson 1990, 43) Having concluded that the pregame stage is irrelevant to policy outcomes, Peterson then dismisses them. This, for me, defies the common sense test. Many of the examples that Peterson (1990) cites, particular ly in chapter 2, support the contention that presidents seek to accommodate anticipated co ngressional reaction when they present their policy proposals, or even develop policy pr oposals in consultation with Congressional leadership.6 It begs the question, if consultation is extensive but pointle ss why do the parties persist with it? Congres sional leaders presumably have better things to do with their time than hold unproductive conferences with the White House. Peterson’s conclusions are also at odds with the evidence from archives and from my own interviews which, while limited in number, involved some very senior White House advisors. Concentration upon outcomes, particularly thos e measured in the form of analyses of roll-call votes in Congress, must be tempered with an understanding of the process that goes on before a bill ever reaches the stage of being voted on in Congress. The process is hidden inside a black box which is hard to open and even harder to decipher once insi de. Bits are missing, memories are unclear, and reports are colored by th e participant’s perspectives on the events at hand, often now forgotten. However, the cleare st problem with the institutionalist focus upon outcomes is that we have no adequate measure of presidential preferences. If we assume that everything the president says in public or as part of a negotiating posture represents his ultimate policy objectives, we are likely to be holding him to a standard of success that he most likely did 6 See also review of Peterson by Covington, Cary. 1991. The Journal of Politics 53 (4): 1167–1169. 252

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not set for himself (Bond a nd Fleisher 1990; Edwards 1990).7 The only way to make progress on identifying presidential preferences is to look carefully inside the black box. The Congressional Dimension While the institutionalist pres idential literature emphasizes the institutionalization of the presidency that has occurred since the Brow nlow Commission recommended “help” for the president, it tends to ignore pa rallel development that have take place in Congress, particularly since the 1970s. Congress has in stitutionalized and reformed its elf too. The institutionalization of the House has, according to Polsby, “served to increase the power of the House within the political system and to spread somewhat more wi dely incentives for legislators to participate actively in policy making” ( Polsby 1999, 55). Th e Senate remains a less institutionalized body where “personal leadership has limited the deve lopment of complex and durable institutions” (Cannon 1989). Reform of the House has served to increase rank and file members’ participation in the committee and floor stages of legislati on (Sinclair 2004). A remarkable increase in partisanship in the House has combined with gr eater institutional strengt h of and support for the party leadership. This in turn ha s led to a situation in which the pa rty leadership has been able to “mobilize the House’s power centers in support of programs that challenged the president” (Rohde 1991, 173). At the same time members of Congress have developed their own institutional capacity, in much the same way as the presidency has, in te rms of large, specialized, and experienced staffs, a broad spread of constituency infrastructu re, new and enhanced office accommodation, and access to new technology and methods of communication (Price 2004, 66 – 69). The 7 See in particular Jon R. Bo nd and Richard Fleisher, 1990. The President in the Legislative Arena. Chicago, Il. University of Chicago Press, and George C. Edwards III, 1990. At the Margins: Presidential Leadership of Congress. New Haven, CT. Yale University Press. 253

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Congressional reforms of the 1970s provided Congr ess with a more responsive and open system of governance with the dismantli ng of the old committee system and its replacement with a system of more open committees and sub-committees. Congress took greater control of the budget process following the Congressional Budget and Impoundment Control Act of 1974 which established for the first time an in-house source of budgetary expe rtise to guide members and a process to coordinate appr opriations and expenditure. It is surely misconceived to focus solely upon the institutionalization of th e presidency while ignoring the parallel institutionalization and reform that has taken place in Congre ss. Yet so much presidential scholarship does precisely that. Congressional attempts to re in in the president by mean s of legislation have been remarkably unsuccessful, probably because their e fforts were usually developed in response to a crisis, but the overall effect of the reform and institutionalization of Congress has been to put members, and more particularly party leaders, on a more equal footing when dealing with the executive. I raised the question at the beginni ng of this work, why does Congress bargain? I believe that I have identified three potential answ ers to that puzzle. Fi rstly, the notion that has developed of a self-aggrandizing presidency se eking to usurp the legi slative authority of Congress and to ignore Congressional preferences and priorities is substantially untrue. As I hope this work has shown, the president and Congre ss work together more often than they work against each other, and they are all the more effective when they do so. Congress and the presidency cooperate, consult and delegate in the development of public policy. The zero-sum perpetual conflict model of executive/legislative rela tions is simply not an accurate reflection of reality. Secondly, I believe that Congress a nd the presidency shar e a common goal, the development of sound public policy. They frequen tly disagree on the best solutions to the basket 254

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of problems that face them at any given time, but their common goal is to produce public policy that works for the problem at hand and for the constituency interests that they respond to. No one sets out to make bad public policy, and with a shared goal, albeit different ideas about the solution, there are compelling incentives for Congr ess and the presidency to work together. Finally, I believe that I have s hown that Congress and the presiden cy are at their most powerful when they work together. When Congress and the president combine their constitutional and legal authority in pursuit of a shared goal, they represent th e power of the federal government at its zenith. When they are in dispute and disunite d, they are weak and ineffectual. The incentives exist to work together; the Framers designed th e necessity of cooperation into the system. Congress and the president ignore it to their mutual and collective di sadvantage. For these three, I believe, compelling reasons Congress is disposed to negotiate with the president even although its legislative and fiscal re sponsibilities are clearly c onfirmed by the Constitution. Cooperation, Consultation and Delegation – A Reprise I have argued that Congress and the presid ency represent separated institutions negotiating outcomes in the realm of government and the development of public policy. They negotiate because they have to; neither is a comple te governing institution in its own right.8 Congress cannot execute the laws and the executive cannot make them. At the margins, of course, there is always scope for some degree of cross-over; what Justice Jackson calls “the zone of twilight”, and therein lies the argument of institutionali sts who see presidents making law unilaterally. Serious public policy is not made at the margins however. The representative nature of Congress legitimizes government in a way that the presid ent, on his own, cannot. With legitimacy comes the ability to raise taxes on citizen s and make wars that send them in to peril. Just as the British 8 Ideas developed in correspondence with Lawrence C. Dodd 255

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monarchy had to cede power to a representative Parliament, so the president relies for his legitimacy on the representative nature of Congress. For Congress’ part, it needs an executive. Just as the Founders argued at the Constitutional Convention; to have a legislature without an executive was a demonstrable failure. Inevit ably, in a system of separated institutions negotiating outcomes, power is everything, and the separated institutions will inevitably fear each other and seek to counter th e advantages that one has over the other. We have seen this played out in the respective in stitutionalization and reform pr ocesses that Congress and the presidency have endured over time. Power is multi-faceted, changing across time and across issue areas, and leads inevitably to tension and the pursuit of relative advantage between the branches of government.9 Power is maximized when it is combined however. Hence the focus of this work upon the circumstances of cooperation, consultation and delegation that go on persistently between Congr ess and the presidency. A president who acts alone and defies Congre ss is doomed to failure. Congress must and does respond. It was awakened from an extende d slumber by the presidency of Richard Nixon. We have seen a relatively benign Congressional response to the rambunctious presidency of George Bush and Dick Cheney. That may be about to change with the Democratic take over of Congress, although the early indications do not suggest an immediate Congressional reaction. Congress has failed to pass even a symbolic repr esentation of its disquiet over the president’s strategy in the war in Iraq in the form of a “sense of Congress” reso lution criticizing the deployment of extra troops.10 The Senate voted the measure do wn confirming that it still has the capability for a motivated minority to unde rmine the will of the majority. 9 Ibid. 10 Shailagh Murray, “Iraq Vote in Senate Blocked by GOP,” The Washington Post , February 18th, 2007. A01 256

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Presidential power is deeply circumscribed by both legal a nd political features of the political landscape. Congress, for its part, is representative and homogenous in nature and this makes it an ineffective vehicle for the devel opment of public policy. It has come to be dependent upon the president for its legislative leadership. Both Congress and the president share the common objective of de veloping good public policy. When they combine their efforts their power is maximized. That alone is reason enough for a greater concentration of research upon the president’s relationship with Congress, and to delve inside the black box, imperfect though the contents may be. 257

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APPENDIX A EXECUTIVE ORDERS ANALYZED BY CITATION OF CONSTITUTIONAL OR LEGISLATIVE AUTHORITY President Total No. of E x e c u ti v e O r d e r s No. of Executive Order s Refere ncing Consti tution al Autho rity % of Executive Orders Referencing CONSTIT UTIONAL Authority % of Executive Orde rs Refer encin g LEGI SLA TIVE Auth ority Nixon (*1970 on war d) 237 19 8% 92% Ford 169 26 15.3% 84.7% Carter 320 49 15.3% 84.7% Reagan 381 57 14.9% 85.1% Bush 41 165 25 15.1% 84.9% Clinton 365 87 23.8% 76.2% Bush 43 224 79 35.2% 64.8% Overall Total 1861 324 17.4% 82.6% Total: Nixon to 1272 176 13.8% 86.2% 258

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Bush 41 Total: Clinton to Bus h 43 589 166 28.1% 71.9% Notes: 1. This table shows a breakdown of Executive Orders issued between 1970 and 2006 to show the percentage that reference the president’s constitutional authority, as distinct from authority delegated to the president by Congress. 2. Ruth Morgan (1970) found that between 1936 and 1965, 17% of all Ex ecutive Orders cited Constitutional, as distinct from legislative, aut hority. This figure is remarkably consistent with the post 1970 figures but it is important to note that both Presidents Clinton and Bush 43 exhibit a much higher propensity than any of their predecessors to rely upon their own Constitutional authority when issuing executive orders. 3. The percentage of Executive Orders issued by President George W. Bush that reference Constitutional authority is 35.2%. This figure is strikingly higher than the overall average of 17.4%. President Bill Clinton comes closes t at 23.8%, also a strikingly high figure. 4. The trend of the Clinton and Bush 43 pres idencies to rely much more upon their Constitutional authority needs closer examination. 259

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Cannon, Carl M. 2002. “The Point Man: The Long and Painful Evolution of the Vice Presidency Has Reached a Turning Point With Dick Cheney.” The National Journal 34 (41). Carter, Jimmy. 1982. Keeping Faith: Memoirs of a President. New York, NY: Bantam Books. Clark, Duncan L. and Edward L. Neveleff. 1984. “Secrecy, Foreign Inte lligence, and Civil Liberties: Has the Pendulum Swung Too Far?” Political Science Quarterly 99 (3): 493 Clinton, Bill. 2004. My Life: The Presidential Years. New York, NY: Vintage Books. Collier, Kenneth E. 1997. Between the Branches: The White House Office of Legislative Affairs. Pittsburg, PA: University of Pittsburg Press. Conley, Richard S. 2003. “Congress, the Presidency, Information Technology, and the Internet: Policy Entrepreneurship at Bo th Ends of Pennsylvania Avenue.” In Congress and the Internet , ed. James A. Thurber and Colton Campbell. Upper Saddle River, NJ: Prentice Hall. Cooper, Phillip J. 2002. By Order of the President: The Use and Abuse of executive Direct Action. Lawrence KS: University Press of Kansas. Cooper, Phillip J. 2004. “George W. Bush, E dgar Allen Poe, and the Use and Abuse of Presidential Signing Statements.” Presidential Studies Quarterly 35 Corwin, Edward S. 1957. The President: Office and Powers, 1787. New York, NY: New York University Press. Corwin, Edward S. 1980. “The Presiden t as a Legislative Leader.” In Classics of the American Presidency, ed. Harry A. Bailey, Jr. Oakpar k, Ill: Moore Publishing Company. Cronin, .Thomas E. 1980. The State of the Presidency . Boston: Little Brown. Dahl, Robert Alan. 1956. A Preface to Democratic Theory . Chicago: The University of Chicago Press. Darman, Richard. 1996. Who’s In Control? Polar Politics and the Sensible Center. New York, NY: Simon & Schuster. Dean, John W. III. 2006. Conservatives Without Conscience. New York, NY: Viking. Deering, Christopher J., and Forrest Maltzman. 1999. Political Research Quarterly 52 (4). Dickinson, Matthew. 2003. “Explaining the Grow th of the Presidential Branch, 1940– 2000." In Uncertainty in American Politics, ed. Barry C. Burden. New York, NY: Cambridge University Press. 261

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Dickinson, Matthew. 2005. “Neustadt, Ne w Institutionalism and Presidential Decisionmaking: A Theory and Test.” Presidential Studies Quarterly 35 (2). Dodd, Lawrence C., and Bruce Oppenheimer, eds. 2005. Congress Reconsidered. Washington, D.C.: CQ Press. Edwards, George C., John H. Kessel and Bert A. Rockman, eds. 1993. Researching the Presidency; Vital Questions, New Approaches. Pittsburgh, PA: University of Pittsburgh Press. Edwards, George C. III. 1980. At the Margins: Presidential Leadership of Congress. New Haven, CT: Yale University Press. Edwards, George C. III. 2000. “Neustadt’s Power Approach to the Presidency.” In Presidential Power: Forging the Presidency for the Twenty–First Century , ed. Robert Y. Shapiro, Martha Joynt Kumar and Lawrence R. Jacobs. New York: Columbia University Press. Edwards, George C. III. 2006. Government in America: People, Politics and Policy (Election Update 12th Edition) . New York, NY: Longman. Edwards, George C. III. 2007. Governing by Campaigning: The Politics of the Bush Presidency. New York, NY: Pearson Longman. Evans, Alona E. 1980. “Goldwater v. Carter.” The American Journal of International Law 74 (2): 441 Fenno, Richard, Jr. 1959. The President’s Cabinet. Cambridge, MA: Harvard University Press. Fisher, Louis. 1975. Presidential Spending Power. Princeton NJ: Princeton University Press. Fisher, Louis. 1991. Constitutional Conflicts Between Congress and the President . Lawrence, KS: University Press of Kansas. Fisher, Louis. 2004. CRS Report for Congress: A Pr esidential Line Item Veto . Washington DC: Congressional Research Service, Library of Congress. Fisher, Louis. 2004. “War Power.” In The American Congress: The Building of Democracy , ed. Julian E. Zelizer. New Yo rk, NY: Houghton Mifflin Company. Fleishman Joel L., and Arthur H. Aufs es. 1976. “Law and Orders: The Problem of Presidential Legislation.” Law and Contemporary Problems 40 (3): 1 Friel, Brian. 2006. “The Signing Statement Games.” National Journal 38 (24). 262

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Ford, Gerald. 1979. A Time to Heal: The Autobiography of Gerald Ford . New York, NY: Harper & Row. Frost, David. 1978. Frost on Nixon; “I Gave Them a Sword .” London, UK: Macmillan. Graham, Hugh Davis. 1990. The Civil Rights Era: Origins and Development of National Policy . New York, NY: Oxford University Press. Harris, Shane. 2006. “Spying 101: A Legal Primer.” National Journal 38 (5). Hart, John. 1995. The Presidential Branch: From Washington to Clinton . Chatham, New Jersey : Chatham House Publishers. Hartman, Robert W. 1982. “Congress and Budget Making.” Political Science Quarterly, 97 (3): 381 Heclo, Hugh. 2000. “Campaigning and G overning: A Conspectus.” In The Permanent Campaign and Its Future , ed. Norman Ornstein and Thomas Mann. Washington, D.C.: AEI Press. Hersh, Seymour M. 1983. The Price of Power: Kissinger in the Nixon White House. New York, NY: Summit Books. Hess, Stephen.1976. Organizing the Presidency . Washington D.C.: The Brookings Institution. Hoff, Joan. 1994. Nixon Reconsidered. New York, NY: Basic Books. Hogan, Joseph J. 1988. “Legislative Liais on in the Reagan Administration.” In Reagan’s First Four Years: A New Beginning? , ed. John D. Lees and Michael Turner. Manchester, UK: Manchester University Press. Howell, William G. 2003. Power Without Persuasion . Princeton, NJ: Princeton University Press. Hoxie, R. Gordon. 1980. “The Power to Command.” In Classics of the American Presidency , ed. Harry A. Bailey. Oak Park, IL: Moore Publishing Company. Hult, Karen M., and Charles E. Walcott. 1998. “Policymakers and Wordsmiths: Writing for the President Under Johnson and Nixon.” Polity 30 (3). Humphrey, Hubert H. 1997. “ Memorandum on Se nate Consideration of the Civil Rights Act 1964.” In The Civil Rights Act 1964: The Passage of the Law That Ended Racial Segregation, ed. Robert D. Loevy. Albany, NY: State University of New York Press. 263

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Huntington, Samuel P. 1968. Political Order in Changing Societies. New Haven, CT: Yale University Press. Isaacson, Walter. 1992. Kissinger: A Biography. London, UK: Faber and Faber Jacobs, Lawrence R, and Robert Y. Shapir o. 2000. “Conclusion: Presidential Power, Institutions, and Democracy.” In Presidential Power: Forging the Presidency for the Twenty– First Century, ed. Shapiro, Robert Y., Martha Joynt Ku mar and Lawrence R. Jacobs. New York, NY. Columbia University Press. Johnson, Loch K. 1985. “Legislative Reform of Intelligence Policy.” Polity 17 (3): 549– 573. Kennedy, David. 1999. Freedom From Fear: The American People in Depression and War, 192945. New York: Oxford University Press. Kernell, Samuel. 1997. Going Public: New Strategies of Presidential Leadership. Washington DC: CQ Press. King, Gary and Lyn Ragsdale.1989. “ The Elusive Executive.” The American Political Science Review 83 (3): 1023. Kinkopf, Neil. 2006. “Signing Statements and the President’s Authority to Refuse to Enforce the Law.” American Constitution Society for Law and Policy [online magazine]. Available from tements%20and%20President's%20Authority.pdf (accessed June 15, 2006). Kissinger, Henry. 1979. White House Years. Boston, MA: Little Brown. Kolb, Charles. 1994. White House Daze: The Unmaking of Domestic Policy in the Bush Years. New York, NY: The Free Press. Kramnick, Isaac, ed. 1987. James Madison, Alexander Hamilton and John Hay: The Federalist Papers. London, UK: Penguin Books. Krause, George A. and Jeffrey E. Cohen. 1997 . “Presidential Use of Executive Orders, 1953.” American Politics Quarterly 25. Krause, George A, and Jeffrey E. Cohe n. 2000. “Opportunity, Constraints, and the Developement of the Institutionalized Presiden cy: The Issuance of Executive Orders, 1939.” The Journal of Politics 62 (1): 88. Leloup, Lance T. 1982. “After the Blitz: R eagan and the U.S. Congressional Budget Process.” Legislative Studies Quarterly 7 (3): 321. 264

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BIOGRAPHICAL SKETCH Stephen Boyle was born in Scotland in 1960. He has a degree in Scot’s law and a Diploma in Professional Legal Practice, both granted by the University of Strathclyde, Glasgow, Scotland. He practiced law for nineteen years, working principally in London, and specialized in complex and high value real estate development and funding. In 2002, Stephen took up a Presidential Fellowship at Boston University where he comple ted the first year of his Ph.D. In 2003, he moved to the University of Flor ida, where he graduated with a doctoral degree in political science in May 2007. Stephen is married to Helen; they have been together for eighteen years, and they have two English Springer Sp aniels and an adopted ex–racing Greyhound. 270