BUREAUCRACY (Update)

The Constitution fails to provide for the largest and one of the most important components of American government, the bureaucracy. The Framers understood that the presidency could not function without a group of persons comparable to the English servants of the crown. The Constitution does provide one specific reference to at least the top level of the bureaucracy: "The President … may require the Opinion in writing, of the principal officer in each of the executive Departments" (Article II, section 2). The Constitution also specifies how government officers are to be appointed—some by the President with the advice and consent of the Senate and some by the President alone. It prohibits members of Congress from holding executive office, thus preventing the creation of cabinet government of the European kind. It specifically authorizes Congress to establish an army, navy, and post office. The Framers could also have specified what other departments, such as Treasury and State, should exist. Indeed, they could have provided a complete organization chart of the whole executive branch. But they did not. Instead, they appear to have deliberately left further evolution of the executive branch to Congress and to the President.

The Supreme Court has on occasion played a major role in shaping the constitutional theory of bureaucracy. From early in the Republic there have been two rival views of the bureaucracy. One, associated with alexander hamilton and later the Progressives, stresses the need for neutrality and expertise. The other emphasizes democratic responsibility. Jacksonian notions of "rotation in office" and "the spoils system" were the expression of this democratic theme. To prevent a gap between the governors and the governed, ordinary citizens were to take their turns in office and then return to private life. The partisans of the party that won one election were to be given government jobs and then turned out in favor of the partisans of whatever party won the next. Such arrangements undercut any vision of an expert bureaucracy reaching "correct" decisions. The Progressive view was eventually embodied in a series of state and federal civil service statutes that gradually incorporated more and more government workers into a system of entry and promotion by technical examinations and good behavior tenure.

BUREAUCRACY (Update)

The Hatch Act of 1939 prohibited federal civil servants from making contributions to, or participating in, election campaigns, in order to protect them from pressure by the President or their politically appointed superiors to actively support the President's party. The Hatch Act was challenged as a violation of the civil servants' first amendment political participation rights. In U.S. Civil Service Commission v. National Association of Letter Carriers (1973) the Supreme Court decisively supported the Progressive theory of bureaucracy by holding that the compelling interest in an expert neutral career civil service outweighed the First Amendment claims at issue.

In a subsequent case, the Court directly confronted one of the last true "rotation in office" systems in the United States. Cook County, Illinois, prosecutors were political appointees. Whenever party control of the elected county executive changed, prosecutors of the winning party replaced those of the losing party. In Elrod v. Burns (1979) the prosecutors of the losing party argued that their First Amendment rights were being violated since they were being fired solely because of their political beliefs. Although the Court acknowledged the American tradition of the spoils system, it concentrated on the First Amendment issues and held for the fired prosecutors. Historically, whenever civil service protections were extended to a further category of government positions, those currently holding the positions, even though they owed their appointments to political favor rather than expert qualifications, were "blanketed in"—that is, allowed to keep their jobs. In the Cook County case, the Court in effect blanketed in all the remaining spoils appointees in the United States. The theory of a neutral bureaucracy free of party control has become part of the Constitution, not as a distinct provision but by judicial interpretation ofthe free speech clause.

The simple schema of the first three articles of the Constitution—Article I, Congress; Article II, presidency; and Article III, judiciary—would seem to place the executive department under the President, who is constitutionally endowed with "the executive power of the United States." Particularly since the new deal, many commentators have stressed the need for presidential control over the ever-growing and increasingly complex federal bureaucracy. In spite of what would appear to be the clear structure of the Constitution, the federal departments are as much, or more, the creatures of Congress as they are the servants of the President. Precisely because Article II does not itemize the executive departments or specify their organization, they have no independent constitutional status. Instead, every executive agency must be crafted by congressional statute, and all of its powers, programs, and expenditures also must be authorized by statute. Congress may further specify by statute the details of agency organization and procedure.

Beginning in the mid-1970s, with the presidency increasingly in the hands of one party and Congress in that of the other, more attention was given to the potential contradictions between the legal basis of the executive departments as congressional creations and the position of the President as chief executive. Agencies live between the duties imposed on them by statute and the executive authority wielded by the President. Recent Presidents have sought to give substantive content to their constitutional authority to "take care that the Laws be faithfully executed" and to assert that whatever discretion the executive agencies wield in the administration of law ultimately belongs to the President. The President's opponents respond by stressing the degree to which the agencies are bound by statutory duties imposed by Congress and the obligation of the President to obey those statutes. Typically these issues arise in the context of broadly worded or incomplete regulatory statutes that must be fleshed out by agency enacted rules. Because they involve administrative law and statutory interpretation, these issues often escape the attention of constitutional law specialists. The regulatory statute may be conceived as expressing, however vaguely and incompletely, a single, definite government policy that the agency must discover and embody correctly in its rules. Or such a statute may be seen as setting general goals and outer limits and then delegating to the agency an element of lawmaking discretion in fashioning detailed rules. In this view, although some rules are clearly foreclosed by the statute, the agency is free to choose from among a number of alternatives within the boundaries set by the statute. Agency choice will, and should, vary, depending on the policy views of the President and political appointees to the agencies. The former view tends to isolate the agency from presidential control, and the latter, to maximize such control.

Most immediately the issue is one of the relative policymaking power of the career agency bureaucracy and the politically appointed agency executives. The more we conceive of a single correct rule that most closely corresponds to the dictates of the statute, the greater must be the policy authority of the bureaucracy; it is the administrators who have long experience in dealing with the statute and great expertise in the factual data on which the correctness of a rule must depend. The more the statute is conceived as delegating lawmaking authority to the agency—that is, the discretion to choose from among alternative, equally valid rules—the greater policy authority should be vested in the President and his appointees, for if rule making really is discretionary lawmaking, then it should be done by those held accountable by the electoral process—not by a nonelected technocracy.

When courts reviewing the lawfulness of agency rules choose one of these visions or the other, the judges are deciding the degree to which the agencies belong to Congress or to the President. Depending on the statutory language, the circumstances, and the underlying constitutional theory of the judge, individual decisions go in one direction or the other. The collective impact of these decisions over time will move the federal bureaucracy more toward Article I or toward Article II and thus determine a fundamental aspect of constitutional law, even though those cases do not overtly raise constitutional questions. Such recent Supreme Court decisions as Chevron U.S.A. v. Natural Resources Defense Council (1984) and Motor Vehicle Manufacturers Institute v. State Farm Mutual (1983) keep both visions alive.

In a series of decisions on more explicitly constitutional separation of powers issues, some Justices have sometimes sought to draw bright lines between congressional and presidential control over the bureaucracy. The Court's basic position, however, appears to be that it will seek to maintain a balance between the two without creating a firm boundary. This estimate seems confirmed in such cases as immigration and naturalization service v. chadha (1983), nixon v. administrator of general services (1977), bowsher v. synar (1986), and Morrison v. Olson (1988). One of these cases, Chadha, raises the specter of bureaucratic escape from both Congress and the presidency. Congress often passes statutes that vest great lawmaking authority in the agencies. If the bureaucrats in the agencies can use a theory of statutory duty to shield themselves from presidential control, then the agencies may float free of both Article I and Article II and become a "fourth branch" of government unless Congress exercises some continuing control over the agencies after it has made broad delegations of power to them. One congressional attempt to exercise such poststatutory enactment control is the legislative veto. In some of its delegatory statutes Congress has provided that before an agency promulgates a rule, it must submit the rule for Congress's approval. The Supreme Court ruled the legislative veto unconstitutional in Chadha. Congress has a number of other important weapons of administrative oversight, the most important being its appropriation control. It always retains the power to amend the statutes so as to preclude agency action of which it disapproves and ultimately the power to pass new statutes fundamentally altering the programmatic mandates and the organization or even existence of an agency that displeases it. Yet Congress frequently makes broad, vague, or contradictory delegations to the agencies precisely because it cannot muster the political will to specify what it wants. In such circumstances, it also may not muster the will to control the agency's exercise of the lawmaking power delegated to it. Therein lies the appeal to some of enhancing the power over the agencies of another elected official, the President. These grave constitutional questions work themselves out less in major Supreme Court cases than in the detailed language of statutes and the day-to-day practices of such presidential arms as the office of management and budget.

Martin Shapiro
(1992)