New Directions in the American Presidency (New Directions in American Politics)

New Directions in the American Presidency

The study of the American presidency, both in terms of the institution itself and the men who have held the office, is one of the most fascinating and dynamic fields within American politics. New Directions in the American Presidency takes a current look at the various issues facing the presidency and provides a “state of the art” overview of current trends in the field of presidency research. The original essays collected here give students concise, engaging, and accessible discussions of a broad range of topics within presidency research, organized to fit easily into courses on the presidency. Leading figures in the field bring their perspectives on key disciplinary debates and give students a compelling account of what political scientists know about the presidency. The insights gleaned from this book will provide a strong framework for understanding current issues and real-world developments in the American presidency and American politics more broadly. Lori Cox Han is Professor of Political Science at Chapman University. She is the author of A Presidency Upstaged: The Public Leadership of George H.W. Bush, Governing From Center Stage: White House Communication Strategies During the Television Age of Politics, and Women and U.S. Politics: The Spectrum of Political Leadership. She is also coeditor of Rethinking Madam President: Are We Ready for a Woman in the White House?, The Presidency and the Challenge of Democracy, and In the Public Domain: Presidents and the Challenges of Public Leadership.

New Directions in American Politics

The Routledge series New Directions in American Politics is composed of contributed volumes covering key areas of study in the field of American politics and government. Each title provides a state-of-the-art overview of current trends in its respective subfield, with an eye toward cutting-edge research accessible to advanced undergraduate and beginning graduate students. While the volumes touch on the main topics of relevant study, they are not meant to cover the “nuts and bolts” of the subject. Rather, they engage readers in the most recent scholarship, real-world controversies, and theoretical debates with the aim of getting students excited about the same issues that animate scholars. Titles in the Series: New Directions in American Political Parties Edited by Jeffrey M. Stonecash New Directions in the American Presidency Edited by Lori Cox Han New Directions in Campaigns and Elections Edited by Stephen K. Medvic New Directions in Congressional Politics Edited by Jamie Carson New Directions in Public Opinion Edited by Adam Berinsky

New Directions in the American Presidency

Edited by Lori Cox Han

First published 2011 by Routledge 270 Madison Avenue, New York, NY 10016 Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2011. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2011 Taylor & Francis The right of the editor to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data New directions in the American presidency/edited by Lori Cox Han. p. cm.—(New directions in American politics) Includes bibliographical references and index. 1. Presidents—United States. 2. United States—Politics and government. I. Han, Lori Cox. JK516.N495 2011 352.230973—dc22 2010031803 ISBN 0-203-85501-9 Master e-book ISBN

ISBN13: 978–0–415–87801–2 (hbk) ISBN13: 978–0–415–87802–9 (pbk) ISBN13: 978–0–203–85501–0 (ebk)

To the memory of Tom Foerster

Contents

List of Figures and Tables Acknowledgments Contributors 1 Introduction: Studying the Presidency

ix x xi 1

LORI COX HAN

2 The Presidency and the Constitution

12

DAVID GRAY ADLER

3 Presidential Campaigns and Elections

33

RANDALL E. ADKINS

4 The Public Presidency: Communications and Media

54

MATTHEW ESHBAUGH-SOHA

5 The Presidency and Public Opinion

71

DIANE J. HEITH

6 The Presidency and Congress

83

BRANDON ROTTINGHAUS

7 The Presidency and the Courts

103

NANCY KASSOP

8 White House Staff

120

JUSTIN S. VAUGHN AND JOSÉ D. VILLALOBOS

9 The Presidency and the Executive Branch

136

MATTHEW J. DICKINSON

10 The Presidency and Domestic Policy DAVID SHAFIE

166

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11 The Presidency and Foreign Policy

180

MEENA BOSE

Selected Bibliography Index

198 215

List of Figures and Tables

Figures 3.1 Public Funding in Presidential Elections, 1976–2008 3.2 Cumulative Percentage of Delegates Selected by End of Fourth Week and End of Eighth Week During the Primary Season by Party, 1972–2008 3.3 Total Contributions and Spending by Presidential Candidates, 1976–2008 4.1 Number of National Addresses (non-SUA), 1960–2009 4.2 Total Number of Yearly Non-major President Speeches, 1949–2009 6.1 Unilateral Presidential Actions in First 100 Days 9.1 Growth in Federal Outlays and Executive Branch Civilian Employment, 1940–2009 9.2 Relative Rate of Growth in Federal Outlays, Executive Branch Civilian Employment, and Number of Pages in the Federal Register, 1940–2009 9.3 Growth of Federal Outlays, 1940–2009 9.4 Ratio of Federal Outlays to Executive Branch Civilian Employees, 1940–2009 9.5 Growth of Total Outlays for Grants to State and Local Governments, 1940–2009 9.6 Growth in Federal Contracts, 2000–2009 9.7 “Real” White House Staff Growth, 1945–2009

37

40 42 56 57 95 143

143 144 144 145 145 157

Tables 3.1 3.2 3.3 6.1

Results of Democratic and Republican Caucuses, 2008 Democratic and Republican Primaries, 2008 Electoral College Vote by State, 2004 and 2008 Percentage of Majority Party Seats in Congress in Presidents’ First Year in Office, 1969–2009 9.1 Executive Branch Employment Figures 9.2 Executive Branch Positions 9.3 Executive Branch Positions (Non-cabinet)

46 47 50 86 140 158 158

Acknowledgments

The study of the American presidency is constantly evolving, and it is never boring. As the president and his administration continue to dominate so much of the day-to-day political life as well as the policy agenda in our society, political scientists (as well as scholars in many other academic disciplines) find themselves confronted with numerous questions about the president as a political actor and the presidency as a political institution. The most recent presidencies of Barack Obama, George W. Bush, and Bill Clinton in and of themselves have provided seemingly endless avenues of research to explore as part of the complex world of national and international governing and politics. As this volume shows, cuttingedge, innovative research has become the mainstay in presidential studies. Each of the contributors is a leading expert in his or her respective field, and each is also an accomplished classroom instructor. As a result, the perspectives and analyses provided in each chapter show the depth and breadth of our current understandings of the presidency, as well as future areas of research in this dynamic subfield. In addition, each chapter is written with the student of the presidency in mind, as a way of introducing the topic to students at all levels and letting the reader know that “this is what political scientists know” about each relevant topic. As with any book project, the finished product represents the hard work of many people from start to finish. First and foremost, I wish to thank the contributors who made this volume possible by generously sharing their time, as well as their knowledge and expertise on the presidency. Their work, here and in numerous other venues, sustains the subfield of presidential studies and has enlightened countless students and colleagues alike. I would also like to thank Michael Kerns at Routledge for his continued enthusiasm and support for this project, as well as Mary Altman for her support along the way. Chapman University, and especially the Political Science department, is a better place because of Nadia Arriaga, whose help and support is always appreciated. Two of my Chapman colleagues, Drew Moshier and Chuck Hughes, also deserve thanks for their continued support and friendship. Finally, and as always, my husband Tom; my daughter, Taylor; and my son, Davis deserve more thanks than mere words on a single page can communicate. Nothing would be possible without their continued patience, support, and love. Thanks for always reminding me that nothing is more important than family.

Contributors

Lori Cox Han is Professor of Political Science at Chapman University. With research and teaching interests in the presidency, women and politics, media and politics, and political leadership, she is the author of A Presidency Upstaged: The Public Leadership of George H.W. Bush, Governing From Center Stage: White House Communication Strategies During the Television Age of Politics, and Women and U.S. Politics: The Spectrum of Political Leadership. She is also co-editor of Rethinking Madam President: Are We Ready for a Woman in the White House?, The Presidency and the Challenge of Democracy, and In the Public Domain: Presidents and the Challenges of Public Leadership. She is past president of the Presidency Research Group, an organized section of the American Political Science Association devoted to the study of the presidency. She received her Ph.D. from the University of Southern California. Randall E. Adkins is Professor of Political Science at the University of Nebraska at Omaha. He teaches courses on the presidency, Congress, political parties, and campaigns and elections. He is the editor of The Evolution of Political Parties, Campaigns, and Elections: Landmark Documents, 1787–2008 and Cases in Congressional Campaigns: Incumbents Playing Defense, and is the author of numerous articles and chapters in edited volumes on the presidency and campaigns and elections. His research has appeared in American Politics Quarterly, American Politics Research, American Review of Politics, Journal of Political Marketing, Political Research Quarterly, Presidential Studies Quarterly, and Publius. He is also a former American Political Science Association Congressional Fellow who worked for the Hon. David E. Price (NC-4). He received his Ph.D. from Miami University. David Gray Adler is James A. McClure Professor and Director of the James A. and Louise McClure Center for Public Policy at the University of Idaho. With teaching and research expertise on the Constitution, the presidency and the Bill of Rights, he is a recipient of numerous teaching, civic, and writing awards. He has also published in the leading journals of his field, and has lectured nationally and internationally on the Constitution and presidential power. He has authored more than 100 scholarly articles, essays, and book chapters, and his books include: American Constitutional Law, The Constitution and the Conduct of American Foreign Policy, The Presidency and the Law: The Clinton Legacy, The

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Contributors Constitution and the Termination of Treaties, and the forthcoming The Steel Seizure Case: Presidential Power and Foreign Affairs: The Legacy of Curtiss-Wright and The Constitution and Presidential Power. He received his Ph.D. from the University of Utah.

Meena Bose is Peter S. Kalikow Chair in Presidential Studies at Hofstra University and Director of Hofstra’s Peter S. Kalikow Center for the Study of the American Presidency. She is the author of Shaping and Signaling Presidential Policy: The National Security Decision Making of Eisenhower and Kennedy and editor of the reference volume The New York Times on the Presidency. She also is co-editor of several volumes in presidency studies and a reader in American politics, as well as being a contributor to the textbook American Government: Institutions and Policies, 12th edition, by James Q. Wilson and John J. DiIulio, Jr. Her current research focuses on presidential leadership in the United Nations. She taught for six years at the United States Military Academy at West Point, where she also served as Director of American Politics in 2006. She received her Ph.D. from Princeton University. Matthew J. Dickinson is Professor of Political Science at Middlebury College. Previously he taught at Harvard University, where he also received his Ph.D. under Richard E. Neustadt. He is the author of Bitter Harvest: FDR, Presidential Power, and the Growth of the Presidential Branch, is the co-editor of Guardian of the Presidency: The Legacy of Richard E. Neustadt, and has published numerous articles on the presidency, presidential decision making, and presidential advisers. His current book project, The President and the White House Staff: People, Positions and Processes, 1945–2008, examines the evolution of the White House staff in the post-FDR period. Matthew Eshbaugh-Soha is Associate Professor of Political Science at the University of North Texas. He has published on the presidency and media in several journals, including the American Journal of Political Science, Political Research Quarterly, and Presidential Studies Quarterly. His recent book—The President’s Speeches: Beyond “Going Public”—examines the impact of presidential speeches on public policy in Congress and the bureaucracy. He received his Ph.D. from Texas A&M University. Diane J. Heith is Associate Professor of Government and Politics at St. John’s University. She is the author of several works on the presidency, public opinion, and the media, including Polling to Govern: Public Opinion and Presidential Leadership, and is co-editor of In the Public Domain: Presidents and the Challenges of Public Leadership. Her work has appeared in the journals Public Opinion Quarterly, Presidential Studies Quarterly, Political Science Quarterly, The Journal of Health Politics, Policy and Law, The Journal of Women, Politics and Policy, White House Studies and Congress and the Presidency. She is currently working on a manuscript exploring the changing patterns of presidential rhetorical leadership. She received her Ph.D. from Brown University.

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Nancy Kassop is Professor of Political Science at the State University of New York at New Paltz. She is the author of numerous articles and book chapters on the presidency and law; recent works include: “Reverse Effect: Congressional and Judicial Restraints on Presidential Power,” in White House Studies; “Clinton, the Constitution, and Presidential Power: His Legacy for the Office of the President,” in The Clinton Presidency and the Constitutional System, edited by Rosanna Perotti; “Resolved: Congress Should Pass the War Powers Consultation Act,” in Debating Reform, edited by Richard J. Ellis and Michael Nelson; “Resolved: Presidents Have Usurped the War Power that Rightfully Belongs to Congress,” in Debating the Presidency, 2nd edition, edited by Richard J. Ellis and Michael Nelson; and “A Political Question By Any Other Name: Government Litigation Strategy in the Enemy Combatant Cases of Hamdi and Padilla,” in The Political Question Doctrine and the Supreme Court of the United States, edited by Nada Mourtada-Sabbah and Bruce E. Cain. She is co-editor of the book review section of Presidential Studies Quarterly and past president of the Presidency Research Group organized section of the American Political Science Association. She received her Ph.D. from New York University. Brandon Rottinghaus is Assistant Professor of Political Science at the University of Houston. His primary research and teaching interests include the presidency, the media, public opinion, executive-legislative relations, and research methods. He is the author of The Provisional Pulpit: Modern Presidential Leadership of Public Opinion, and his work has also appeared in several journals, edited volumes, and law review articles. He is the founding designer of the Presidential Proclamations Project at the University of Houston, an online resource documenting presidential use of unilateral powers through executive proclamation. He received his Ph.D. from Northwestern University. David Shafie is Assistant Professor of Political Science at Chapman University. His teaching and research interests include the politics of the regulatory process, environmental policy, and state politics and policy. He is co-author of Rethinking California: Politics and Policy in the Golden State, and has published articles in The Journal of Information Technology and Politics, American Behavioral Scientist, and the Harvard International Journal of Press/Politics. His current book project considers presidential use of the midnight rule-making process. He received his Ph.D. at the University of Southern California. Justin S. Vaughn is Assistant Professor of Political Science at Cleveland State University. He has been selected as a Presidential Fellow by the Center for the Study of the Presidency and has authored several studies of presidential politics, including articles recently published in Presidential Studies Quarterly, Political Research Quarterly, Review of Policy Research, the International Journal of Public Administration, and Administration & Society. His current projects include empirical analyses of management theory as applied to the inner workings of the White House, examinations of the role popular culture plays in shaping the presidential image, and an

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Contributors ongoing study of the linkages between the presidency and the American public. He received his Ph.D. from Texas A&M University.

José D. Villalobos is Assistant Professor of Political Science at the University of Texas at El Paso. His dissertation work was chosen for the 2009 George C. Edwards III Dissertation Award granted by the Presidency Research Group of the American Political Science Association for best dissertation on the U.S. presidency. His areas of interest are presidential management, presidentialbureaucratic policy making, the public presidency, presidential-congressional relations, mass media and the rhetorical presidency, and studies on immigration policy and Latino/a politics. He has recently published articles in Presidential Studies Quarterly, Political Research Quarterly, Administration & Society, the International Journal of Public Administration, and Review of Policy Research. He is currently serving as president of the Midwest Latino/a Caucus, a board member of the Presidency Research Group of the American Political Science Association, and a member of the program planning committee for the Midwest Political Science Association. He received his Ph.D. from Texas A&M University.

1

Introduction Studying the Presidency Lori Cox Han

On January 20, 2009, Barack Obama took the oath of office as the forty-fourth president of the United States. Given that Obama became the first African American president, the extraordinary attention given to his inauguration within the United States, as well as around the world, was not surprising to even the most casual of political observers. Historically, a presidential inauguration represents an important political ritual for American citizens, serving as a time of renewal of faith in the U.S. constitutional system of government by witnessing the peaceful transition of power from one leader to the next. It is also the one day on the political calendar on which partisanship is mostly set aside, and the events surrounding the incoming president are filled with optimism. Presidents look to the inauguration, and in particular the inaugural address, as an opportunity to set the tone of their tenure in office for the public and other political actors. Most also use the event as an opportunity to talk about broader political principles and their vision for the country. In addition to the constitutional requirement that a president must take the oath of office, an inauguration is one of the many symbolic acts in which a president engages, and it is the first opportunity to address the American public—the national constituency that he uniquely represents within the political system—as president. Each president also faces unique circumstances on the day he takes office, and therefore, may have different strategies and goals that he and his advisors are attempting to achieve.1 In addition to the political, constitutional, and symbolic significance of presidential inaugurals, the start of a new presidential administration also represents a milestone for those who study the presidency—a brand-new president and his administration to assess and analyze. The study of the American presidency, as both a political institution and the man who holds the office, is one of the most fascinating and dynamic fields within political science. While the framers of the U.S. Constitution may have envisioned coequal legislative, executive, and judiciary branches, the powers of the presidency have expanded throughout the past century as contemporary American presidents, for better or worse, have often been the driving force behind policymaking at both the national and international levels. As such, the actions of the current administration of President Barack Obama, as well as previous administrations, raise numerous questions for scholars to

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consider about the powers of the office, the complex nature in which presidents shape policy agenda, and various other aspects of governing. In particular, Obama and his two most recent predecessors—George W. Bush and Bill Clinton—have opened myriad avenues of analysis regarding a broad spectrum of issues for presidency scholars, including presidents as individual political actors as well as institutional implications of their actions while in office. For example, Obama took office at a time of economic crisis, as the United States faced the most daunting economic downturn and recession since the Great Depression of the 1930s. In addition, the new commander in chief inherited two wars, in Iraq and Afghanistan, both initiated by his immediate predecessor as part of the “War on Terror.” While it may be too soon to provide an adequate assessment of Bush’s legacy, one major component of his eight years in office will forever be linked to the expansion of presidential war powers in the aftermath of the September 11, 2001 terrorist attacks. In addition, the Bush years will also be remembered for an increasing budget deficit, the prominence of a socially conservative policy agenda, and an escalation of partisanship at the national level. While Bill Clinton may have left office with a budget surplus, his time in office was marked by six years of divided government, an impeachment, and his ability to out-maneuver his opponents through strong political and communication skills (which also contributed to the partisan divide in Washington). These topics and how they relate to the specific occupants of the Oval Office are just a sampling of issues that animate current research on the American presidency. That research, in turn, also defines how presidency courses are taught at both the undergraduate and graduate levels. While presidential studies itself is considered a subfield within the discipline of political science, numerous subfields within presidential studies have also emerged in the past three decades as part of the growing literature on both presidents and the presidency. For example, presidential-congressional relations, presidential powers, the executive branch as a political institution, and the public aspects of the presidency are just a few areas where scholars have focused their attention in an effort to better understand (and sometimes predict the actions of) the president, his staff, and other relevant political actors within the executive branch. In addition, interdisciplinary research on the presidency has merged the growing literature in political science with that of psychology, history, communication, economics, and sociology, among others. As a result, both the quality and quantity of research devoted to the presidency continue to grow. This chapter provides an overview of presidential studies and the current state of presidency research. Having a better understanding of such topics as the different eras usually associated with the presidency, or the methods of study used by presidency scholars, can aid students in learning about the various facets of the institution of the presidency as well as the men who have held the office. First, we will consider the general categories used to organize presidents and their presidencies by historical eras, which provides a sense of how the institution itself—along with the day-to-day job responsibilities of the president—have

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evolved throughout U.S. history. Second, we will look at the state of presidency research and how the various methodological tools now available to presidency scholars have greatly expanded our understanding of presidents as political actors and the presidency as a political institution. Finally, we will consider the plan of the book, how the essays in this volume illustrate the new and emerging trends within presidential studies, and how that research provides a guide and basis for analysis for studying the presidency.

Studying the Presidency: Presidential Eras The American presidency remains one of the most fascinating institutions in history, and the powers and intricacies of the office seem to defy comparison to anything before or since. Individual presidents have come and gone, serving their country with varying degrees of success, but the presidency as an institution remains a focal point of political power, nationally and internationally. The presidency of the eighteenth century, as outlined by the framers of the U.S. Constitution, may seem weak compared to the powers that have emerged with the office throughout the twentieth and into the twenty-first centuries, but the essential characteristics of the American presidency are as recognizable today as they were more than 200 years ago. Despite wars, scandals, economic turbulence, and even assassinations, the presidency has endured and is one of the most resilient political structures ever created. Still, the powers of the office, along with the public presence of the president himself, have varied at times due to differing circumstances (political and otherwise). According to presidential scholar Louis W. Koenig, the history of the presidency can be divided into three principal eras: the traditional presidency, the modern presidency, and the postmodern (diminished) presidency.2 The traditional presidency encompasses the office-holders from the late eighteenth century until the turn of the twentieth century who “performed within modest limits and largely with unmemorable results.” The most notable presidencies during this time include George Washington (1789–1797), Thomas Jefferson (1801–1809), Andrew Jackson (1829–1837), and Abraham Lincoln (1861– 1865), all of whom are “towering exceptions” of an era when presidential powers remained modest and limited.3 Truth be told, the presidency was not a coveted prize for most founding-era politicians, nor was the associated role of commander in chief. Particularly during the late eighteenth century, talented public officials had little incentive to seek an office whose risks and uncertainties outweighed the potential benefits. The presidency offered modest prestige, narrow authority, and meager resources. In most cases, governors of politically prominent states, such as New York, Massachusetts, and Virginia, wielded more real power and prestige than the nation’s president. Although American presidents of the early republic were honored and respected by their fellow Americans, not least because of their service and contributions prior to 1789, they occupied an office that was unassuming and limited, especially with respect to national defense and foreign policy, which is just what the framers

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of the Constitution had intended. Similarly, throughout the nineteenth century, most presidents merely carried out the laws passed by Congress, which assumed the role of the dominant policymaking branch. Despite the political reforms of the 1820s and 1830s, which opened the electoral process to middle- and lowerincome voters and eased restrictions on office-holding, presidents—for the most part—remained passive participants in national policymaking. The potential power of the presidency, particularly in regards to shaping the national agenda, waging wars, and connecting with the American public, would not be tapped until the twentieth century. The development of the modern presidency, with all its power and bureaucratic machinery, laid waste to the modestly crafted, humble office erected by the framers. Of the three branches of government, the executive has traveled farthest from its origins and least resembles the intent of its creators. According to Koenig, Theodore Roosevelt (1901–1909) and Woodrow Wilson (1921–1929) were its “architects, as asserters of bold undertakings in domestic and foreign affairs, as gifted mobilizers of public opinion, as inducers of congressional concurrence.”4 Then, with the election of Franklin D. Roosevelt (FDR) in 1932, a new political era began that included the development and expansion of the welfare state. Roosevelt’s presidency (1933–1945) brought with it several important changes that solidified the modern presidency: enhanced presidential staff resources, a greater presidential role in policymaking, a stronger relationship with the mass public, and a greater presence in the realm of international relationships. Two themes are also prominent in explaining the modern presidency: an increase in expectations for presidential leadership and increased presidential capacity to lead.5 FDR’s New Deal initiatives, as well as America’s involvement in World War II, began what would be an era of tremendous growth in domestic and foreign powers of both the presidency and the executive branch of government, with the presidency eclipsing Congress and even political parties as the “leading instrument of popular rule.”6 FDR’s immediate successors, Harry Truman (1945–1953) and Dwight Eisenhower (1953–1961), presided over the continued growth and influence of the presidency as the lead actor in domestic and international affairs, thanks in part to the growth of the U.S. economy and the continuing Cold War. Similarly, the public aspects of the office, along with the public’s expectation for strong presidential leadership, continued to expand, particularly with the presidency of John F. Kennedy (1961–1963) and its use of television. This era is also marked by the strength and dominance of the United States as a global and economic superpower, which allowed presidents to pursue big policy agendas at home (such as the Great Society and the “War on Poverty” during the 1960s) and abroad (containing the spread of communism as part of America’s Cold War strategy). But the failure of U.S. containment policy during the protracted Vietnam War would call into question the powers of the modern presidency; both Lyndon Johnson (1963–1969) and Richard Nixon (1969–1974) would be labeled “imperial” presidents for their actions in Vietnam and for Nixon’s involvement in, and eventual resignation due to, the Watergate scandal.7 Finally, the postmodern presidency, according to Koenig, is a diminished presidency due to the fact that the resources necessary for a president to wield power

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“fall well short of the tasks he is expected to perform and the challenges to be faced.”8 By the 1980s, presidents were no longer able to pursue big domestic political agendas; divided government became more common (with the White House controlled by one political party and at least one house of Congress controlled by the other), and with a spiraling national debt and increasing budget deficits, the president had much less room to shape the domestic agenda through the creation of new federal programs. Instead, the success of Ronald Reagan (1981–1989) was based in part on his promise to reduce the size of the federal government. In addition, with the end of the Cold War by the end of the 1980s, presidents had lost power in the international arena. Cooperation in what George H.W. Bush (1989–1993) called “the new world order” became more important than protecting the United States from the spread of communism and the imminent threat of a nuclear war with the Soviet Union. Other trends have contributed to the postmodern presidency, including the way in which Americans select their presidents; the political skills necessary for a candidate to succeed on the campaign trail are different than those needed to handle the complex domestic, economic, and global demands of the job of president.9 The challenges faced by Bill Clinton (1993–2001), George W. Bush (2001–2009), and Barack Obama (2009–present) represent both the increased powers and diminished capacities of governing that have evolved in recent decades. Since the days of FDR, presidents are more often than not labeled as failures at the end of their time in office. While the president today may be the “focal point of public life,” the reality is that “presidents are seldom in command and usually must negotiate with others to achieve their goals.”10

Studying the Presidency: Theories and Methodologies In 1977, political scientist Hugh Heclo published a report for the Ford Foundation on the state of research devoted to the presidency. Heclo concluded that while the topic itself was “probably already overwritten,” there existed “immense gaps and deficiencies” stemming from a lack of empirical research and too much attention paid to topics such as presidential power, personalities, and decision making during a crisis.11 At the time, many scholars were focusing much of their attention on the presidencies of Dwight Eisenhower (1953–1961), John F. Kennedy (1961– 1963), Lyndon Johnson (1963–1969), and Richard Nixon (1969–1974), and topics such as the Cold War, the Cuban Missile Crisis, the Vietnam War, and Watergate (just to name a few) fell nicely into the familiar research categories prominent by the mid-1970s. According to Heclo, the same categories and themes had been present since the 1825 publication of The Presidency of the United States by Augustus B. Woodward, a small pamphlet considered to be the first study of the presidency as a social and political institution. Those categories of study included: 1) the man, 2) public politics, 3) Washington politics, 4) executive politics, and 5) didactic reviews (attempts to synthesize the other categories and draw lessons from the presidency).12 Heclo wrote that the field of presidential studies needed more reliance on primary

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documents, a better understanding of how the presidency works from day to day (in order to help the president perform better), and a broader, more interdisciplinary approach.13 Despite several “well-intentioned publications” on the presidency, Heclo concluded: “Political observers have written excellent interpretations of the Presidency. Important questions about Presidential power have been raised. But considering the amount of such writing in relation to the base of original empirical research behind it, the field is as shallow as it is luxuriant. To a great extent, presidential studies have coasted on the reputations of a few rightfully respected classics on the Presidency and on secondary literature and anecdotes produced by former participants. We still have remarkably little substantiated information on how the modern office of the President actually works.”14 Following Heclo’s lead, by the early 1980s, presidency scholars began reassessing the trends of their research, and as a result, many began to bemoan the state of their “underdeveloped subfield.” Different types of presidential scholarship had emerged during distinct periods, including studies that focused on the formal powers of the executive office, a psychoanalytic approach to understanding the behaviors of presidents, and the informal power structure within the White House and its impact on presidential leadership (also known as the Neustadian approach to presidential power).15 Presidential research also tended to focus on a “political-actor perspective” that centered on the question of determining “how presidents differed in their decisions.” This president-centered approach to research often relied on descriptive analyses or anecdotal comparisons between presidents, and suffered from what many scholars referred to as the infamous “n = 1” syndrome.16 In 1983 presidential scholars George C. Edwards III and Stephen J. Wayne published Studying the Presidency, an edited volume analyzing the state of the subfield and the various approaches that had emerged. At the time, presidency scholars were just beginning to grapple with the question of how to more systematically study presidents and the presidency in a method more befitting the social sciences generally and political science specifically. Wayne suggested that more “theoretically sophisticated and empirically relevant” work was necessary to expand the presidency literature to keep pace with the “phenomenal growth of the presidency: the expansion of its powers, the enlargement of its staff, the evolution of its processes.”17 Problems in studying the presidency had traditionally stemmed from the general unavailability of data, the lack of measurable (particularly quantitative) indicators, and the absence of theory, all of which “impede the collection and analysis of data, thereby discouraging empirical research.” Specific problems, Wayne argued, included the fact that operational and institutional aspects of the presidency are usually shrouded in secrecy; presidential documents can remain closed for years, if not decades; primary source material is not always readily available; interviews with administration officials can be biased and incomplete; and high-profile journalists are more likely to gain access than most scholars. Given that, little about the presidency had lent itself to quantitative and comparative study, other than public opinion, voting studies, and legislative scorecards.18 Wayne also suggested several methodological approaches for scholars to

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become “more conceptually conscious” about the presidency through scientific inquiry. They included: legal perspectives (sources and uses of presidential powers); institutional perspectives (analysis of the workings of government); roles and responsibilities (understanding presidential actions within the institutional setting); structure and process (how the president and the presidency function, operate, and interact with other political actors and institutions); political perspectives (power orientation and decision making); and psychological perspectives (analyzing the personalities of individual presidents).19 By the late 1980s and early 1990s, a robust discussion had emerged among presidency scholars on how to develop a more rigorous and systematic approach more befitting the traditions of political science to study both the president and the presidency. According to Gary King and Lyn Ragsdale in their book The Elusive Executive, “scholars must concentrate on two important steps to understand the American presidency more fully. First, scholars must move from anecdotal observation to systematic description . . . . Second, anecdotal observation leaves citizens and scholars without a reliable basis for comparison and analysis . . . . Presidency watchers of all kinds have an interest in eliminating anecdotal observation and thus reducing the chasm between information and meaning.”20 Many scholars maintained an emphasis on presidential leadership and its importance in understanding the role of the president in policymaking and governing, yet at the same time began to change the direction of research by relying on a broader theoretical perspective and including extensive data for comparative analysis. Many still rely on Richard Neustadt’s classic work Presidential Power, first published in 1960, at least for a starting point in their research, while also recognizing the limitations that an individual president can face in effecting political change.21 However, on the opposite end of the spectrum, other scholars support the institutional approach to studying the presidency. Those in this camp suggest that it is the institution itself that shapes both presidential behavior and political outcomes. The presidency, they contend, became greatly institutionalized and politicized during the twentieth century, leaving the president out of the loop, so to speak, and mostly irrelevant as an individual in much of the decision-making processes. As a result, scholars should not waste time on understanding the role of presidential leadership, but should instead rely on a rational choice model of presidential theory building.22 A modified approach known as “new institutionalism” suggests the need to look beyond institutions to also include an analysis of the ideas and people that influence those institutions.23 Other works have also offered important methodologies and/or theories about studying the presidency. For example, Lyn Ragsdale relies on three dimensions to describe the parameters of the presidency as an institution: organization, behavior, and structure. She recognizes that presidents can make marginal changes to the organization of the presidency, but the office is not reinvented with each new occupant in the White House. Also, presidents tend to behave in similar ways, since they are faced with a similar political and institutional environment. But her view moves beyond the institutional approach to include structural elements, which “describe the most typical features of a single institution.” It is through

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rigorous data analysis across several presidencies that explanations can be found to define the president’s role within the institution of the presidency; ultimately, “the institution of the presidency shapes presidents as much as presidents, during their short tenures, shape the institution.”24 Erwin Hargrove provides a compelling discussion of how to maintain the debate over the relevance of presidential leadership while still moving forward in developing better research patterns for the discipline. The individuality of the president himself is still an important consideration, including the effect on events and institutions, but only if historical situations and other environmental factors are considered as well. Therefore, individuals do make a difference, but Hargrove wants to know under what conditions this occurs, since the “relative importance of leaders varies across institutions and across time and place.” A president, then, deals with practices that are institutionalized, as well as those that are not. For example, much of a president’s day-to-day job may be out of his control due to the institutionalized nature of the office, such as regular dealings with the White House press corps, which all presidents must face. Nonetheless, individual presidents can still “lend their touch” to media strategies, thereby playing a part in effecting the outcome of press coverage. Other individual activities of presidents which are not institutionalized can also contribute to strategies involving press coverage, such as how a president presents himself in public or his initial selection of a policy agenda. This research approach allows for the consideration of presidential leadership while still providing explanations about the institutional nature of the presidency.25 Paul Light discusses the relevance of using presidential policymaking as a dependent variable in helping to determine the success or failure of a president, and ultimately, a vehicle to test competing theories on the presidency. Studying policy initiatives generated from the White House can allow a researcher to make predictions about presidential performance, either from a leadership perspective or from an institutional perspective. How each president pursues policies reveals much about his “ideology and world view”; therefore, studying the presidency from a policy point of view can explain many differences across time: “Like a new car coming off an assembly line, the president’s policy tells scholars a great deal about the overall operation, productivity, and quality of a given administration, all of which reveal something in turn about a president’s design, manufacturing, and marketing sense.”26 While every significant work on the presidency cannot be included here, it is important to note that since the discussion began more than three decades ago on how to improve the study of the presidency within political science, many notable contributions to the literature have been made by scholars relying on a variety of methodological and/or theoretical perspectives. In addition, the debate among presidency scholars now has the depth and breadth that was missing several decades ago, and healthy disagreements exist on not only what questions should be asked, but how they should be answered. A recent edition of Presidential Studies Quarterly (December 2009) included a symposium on the state of presidency research, which highlighted the progress made and touted some of the most influential work

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being done within the subfield. Broadly speaking, key areas of current research include the president’s influence, if any, over public opinion;27 presidential war powers and other constitutional concerns;28 presidential control (or lack thereof) over executive branch agencies and the policy agenda;29 and the president’s relationship with the news media.30 While presidency scholars may disagree on how to approach these and other relevant questions, most would agree that the evolution within presidential studies has had a positive effect on our understanding of the dynamic political institution that is the presidency. As Kenneth R. Mayer puts it, “We have theories that are useful in analyzing presidential policy making, unilateral action, legislative strategy, and institutional structure. We have hypotheses, data, and tests. We have unanswered questions. And perhaps most importantly, we have challenges to the conventional wisdom, all of which make the subfield a far more interesting place.”31

The Plan of the Book This volume takes a current look at the various issues facing the presidency and provides a state-of-the-art overview of current trends in the field of presidency research. The collected essays represent concise and engaging discussions on relevant topics within presidency research (and those topics most commonly covered in courses on the presidency) written by some of the leading scholars in the field of presidency research. Each chapter provides a discussion that tells students “this is what political scientists know” from the perspective of current issues and challenges facing the Obama administration. The goal of the book is to bring together disciplinary debates (for example, the presidency-centered versus president-centered approach to studying the presidency) along with current-event-driven discussions about the presidency and the current administration. To begin, David Gray Adler considers the president’s relationship to the Constitution in Chapter 2, and concludes that the recent expansion of presidential powers, particularly during the George W. Bush years, will continue to provoke controversy about the president’s role within a separated system for years to come. The next three chapters look at the president’s connection to the public. In Chapter 3, Randall E. Adkins assesses presidential campaigns and elections in the wake of the historic election of Barack Obama in 2008, and analyzes key changes (including campaign finance, the frontloading of the primary process, and overall candidate strategies) to the process since the early 1970s. Matthew Eshbaugh-Soha explains in Chapter 4 the lengths that presidents and their advisors now go to in an attempt to shape news coverage and the overall public image of the presidency, though even the most skilled communicators still face many challenges in this regard. And in Chapter 5, Diane J. Heith shows how presidents now rely on public opinion polls as a means to enhance their leadership of the American public, and explains how the trend of constant polling in recent White Houses may also constrain a president’s ability to lead. Next, we consider the relationship between the presidency and the other two branches of government. In Chapter 6, Brandon Rottinghaus considers recent

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trends in the executive-legislative relationship, and concludes that one branch is not completely dominant over the other since each can hold a political advantage at different times with unique governing tools. Nancy Kassop explains in Chapter 7 that the relationship between the president and the federal judiciary has many legal as well as political facets, especially when considering the importance of making a lifetime appointment to the Supreme Court. Those who work within the White House, as well as the executive branch as an institution, also offer compelling areas of research. Justin S. Vaughn and José D. Villalobos show in Chapter 8 the value of the White House staff to a president’s tenure in office, and assess the expansion of the White House staff as well as the centralization of key governing activities. Matthew J. Dickinson considers the crucial link between presidential power and executive branch effectiveness in Chapter 9 by showing the challenges that presidents face in managing the many agencies and personnel that make up the federal bureaucracy. Finally, the president’s role in the policymaking process at both the national and international levels is considered in the final two chapters. Regarding domestic policy, David Shafie concludes in Chapter 10 that presidents may have expanded their role in recent years as the chief domestic policymaker but many constraints remain, limiting the president’s ability to meet public expectations in the development and implementation of domestic programs. And in Chapter 11, Meena Bose shows the evolution of presidential power regarding foreign policy, and suggests that while presidents bear primary responsibility in this area, Congress still maintains an important constitutional function in pursuing foreign policy objectives.

Notes 1 See Karlyn Kohrs Campbell and Kathleen Hall Jamieson, Deeds Done in Words: Presidential Rhetoric and the Genres of Governance (Chicago: University of Chicago Press, 1990), 14–27. 2 Louis W. Koenig, The Chief Executive, 6th ed. (New York: Harcourt Brace, 1996), 2–3. 3 Ibid., 2. 4 Ibid., 3. 5 See Jeffrey E. Cohen and David Nice, The Presidency (New York: McGraw-Hill, 2003), 53–9, and Sidney M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776–2007, 5th ed. (Washington, DC: CQ Press, 2008), 280–5. 6 Milkis and Nelson, 281. 7 The term “imperial president” is most often associated with the classic book of the same title by historian Arthur Schlesinger, Jr., in which he discusses the modern presidency. See Schlesinger, The Imperial Presidency (Boston: Houghton Mifflin Company, 1973). 8 Koenig, 4. 9 For example, see Richard Rose, The Postmodern President, 2nd ed. (Chatham, NJ: Chatham House, 1991), 2–6. 10 Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency, rev. 7th ed. (Washington, DC: CQ Press, 2010), 1. 11 Hugh Heclo, Studying the Presidency: A Report to the Ford Foundation (New York: Ford Foundation Press, 1977), 5–6. 12 Ibid., 7–8. 13 Ibid., 31–45. 14 Ibid., 30.

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15 Researching the Presidency: Vital Questions, New Approaches, eds. George C. Edwards, III, John H. Kessel, and Bert A. Rockman (Pittsburgh: University of Pittsburgh Press, 1993), 3–5. 16 Lyn Ragsdale, Vital Statistics on the Presidency (Washington, DC: CQ Press, 2009), 1–3. 17 Stephen J. Wayne, “An Introduction to Research on the Presidency,” in Studying the Presidency, eds. George C. Edwards III and Stephen J. Wayne (Knoxville: University of Tennessee Press, 1983), 4. 18 Ibid., 5–6. 19 See Stephen J. Wayne, “Approaches,” in Studying the Presidency, eds. George C. Edwards III and Stephen J. Wayne (Knoxville: University of Tennessee Press, 1983), 17–49. 20 Gary King and Lyn Ragsdale, The Elusive Executive: Discovering Statistical Patterns in the Presidency (Washington, DC: CQ Press, 1988), 2–5. 21 Early examples include works such as George C. Edwards, III, At the Margins: Presidential Leadership of Congress (New Haven, CT: Yale University Press, 1989); Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (Cambridge, MA: Harvard University Press, 1990); and Samuel Kernell, Going Public: New Strategies of Presidential Leadership (Washington, DC: CQ Press, 1986), just to name a few. 22 Examples of this approach include Terry M. Moe, “The Politicized Presidency,” in The New Direction in American Politics, eds. John E. Chubb and Paul E. Peterson (Washington, DC: The Brookings Institution, 1985), and Moe, “Presidents, Institutions, and Theory,” in Researching the Presidency; John Burke, The Institutional Presidency: Organizing and Managing the White House from FDR to Clinton (Baltimore: Johns Hopkins University Press, 2000); and Thomas J. Weko, The Politicizing Presidency: The White House Personnel Office, 1948–1994 (Lawrence: University of Kansas Press, 1995). 23 For example, see Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to George Bush (Cambridge, MA: Belknap Press, 1997). 24 See Ragsdale, 7–13. 25 Erwin C. Hargrove, “Presidential Personality and Leadership Style,” in Researching the Presidency, 69–72. 26 Paul C. Light, “Presidential Policy Making,” in Researching the Presidency, 161–3. 27 For example, see George C. Edwards III, On Deaf Ears: The Limits of the Bully Pulpit (New Haven: Yale University Press, 2003), and Brandice Canes-Wrone, Who Leads Whom? Presidents, Policy, and the Public (Chicago: University of Chicago Press, 2005). 28 For example, see Louis Fisher, Presidential War Power, 2nd rev. ed. (Lawrence: University Press of Kansas, 2004), and William G. Howell and Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers (Princeton, NJ: Princeton University Press, 2007). 29 For example, see Andrew Rudalevige, Managing the President’s Program: Presidential Leadership and Legislative Policy Formulation (Princeton, NJ: Princeton University Press, 2002), and Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power (Princeton, NJ: Princeton University Press, 2001). 30 For example, see Jeffrey E. Cohen, The Presidency in the Era of 24-Hour News (Princeton, NJ: Princeton University Press, 2008), and Martha Joynt Kumar, Managing the President’s Message: The White House Communications Operation (Baltimore: The Johns Hopkins University Press, 2007). 31 Kenneth R. Mayer, “Thoughts on ‘The Revolution in Presidential Studies,’” Presidential Studies Quarterly 39, no. 4 (December 2009):781–785.

2

The Presidency and the Constitution David Gray Adler

Few issues in our long Anglo-American constitutional history can match the drama, importance, and transcendent interest of the efforts to rein in executive power and subordinate it to the principle of the rule of law. Courts have grappled with the issue since at least 1608, when Sir Edward Coke boldly declared to an outraged James I that the king was, indeed, subject to the law. King James, according to Coke, was “greatly offended,” and declared that his opinion constituted “treason.” It was, perhaps, only Coke’s wit and willingness to fall “flatt on all fower” that spared him a sentence to the Tower of London.1 James’s protest was anchored in the Stuart Kings’ theory of the Royal Prerogative, whose sweeping claims of illimitable authority were anathema to the great jurist’s devotion to the metes and bounds of law. The absolutist pretensions of the theory of high prerogative subsequently found full-throated expression in the legendary Case of Ship Money in 1637, in which the Court of Exchequer characterized the king’s prerogative as “innate in the person of an absolute King, and in the person of the Kings of England”; it was “the magisterial right, and power of a free monarch.”2 In his celebrated Commentaries on English Law, Sir William Blackstone described the prerogative power as “that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of the common law, in right of his legal dignity.”3 At all events, the monarchical conception of power in seventeenth-century England asserted the unilateral power of the king to undertake any act and pursue any program or policy to promote the interests of his kingdom. The framers of the US Constitution responded to the Royal Prerogative and its assertion of inherent monarchical power grounded in the royalty—not the office—of the king, through the institutionalization and constitutional confinement of the executive. The American system was designed, in part, to overcome the personalization of executive power. In their replacement of personal rule with the rule of law, the framers rejected the historical admiration of the executive and the claims of personal authority that, at least since the Middle Ages in one form or another, had conceived of executive rights as innate; they were derived not from the office but, one might say, from the “blood and bone of the man.” Executive power had been conceived as personal, not juridical. For their part, delegates to the

The Presidency and the Constitution 13 Constitutional Convention sought to transform personal rule into a matter of law and to subordinate the executive to constitutional commands and prescriptions.4 The framers were entitled to believe that they had succeeded in their quest to bridle executive power. It was, moreover, an achievement of historic proportions; at the time of the founding, the precise distinction between a republic and a monarchy lay in the subordination of the executive to the rule of law. The creation of the presidency—the powers of which, as James Madison explained, were “confined and defined” by the Constitution from which they were derived—reflected the bedrock principle of American Constitutionalism. It was trumpeted again and again by the Supreme Court across the decades and found eloquent expression in the words of Justice Hugo Black who, in 1957, wrote for the court: “The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can act only in accordance with all the limitations imposed by the Constitution.”5 It follows that the president is required to trace his actions to the Constitution—“the charter from which [he] derives [his] authority.”6 The binding nature of the Constitution, expressed in its status as the law of the land, reflects fundamental choices made by the people, the essence of the principle of the consent of the governed. James Iredell, one of the leading founders and later a Supreme Court Justice, explained: “The people have chosen to be governed under such and such principles. They have not chosen to be governed or promised to submit upon any other.”7 Disregard of the supreme law of the land, as seen for example, in presidential efforts to substitute values for those enshrined in the Constitution, constitutes rank usurpation and subverts the Constitution. No agent, Alexander Hamilton wrote, may “new-model his own commission,” least of all the president, who swears an oath to uphold the laws and Constitution of the United States, a solemn duty reaffirmed by the Take Care Clause.8 While the founders had committed the nation to the rule of law and to the principle of executive subordination to the Constitution, there emerged in the early days of the republic various controversies about the scope of executive power, disputes that would persist across two centuries. Separation of powers issues are perennial, of course, precisely because they require consideration of the proper repository of authority and the division of power between Congress and the president. As a consequence, contemporary questions about the scope of presidential power are largely the same as those addressed two centuries ago. It could hardly be otherwise since disputes about constitutional authority involve interpretation of a document (the Constitution) and discernment of the boundaries that cabin the exercise of presidential power. Manifestly, the maintenance of constitutional government requires adherence to boundaries. As Chief Justice John Marshall observed in Marbury v. Madison, “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”9 The constitutional prohibition of the transgression of boundaries has not, of course, prevented deep-seated quarrels. Across a vista of 200 years, the assertion of executive power has frequently triggered heated debate about its legality, and stressed and strained the Constitution. Indeed, American history is laced

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with great constitutional battles over the exercise of presidential power, beginning with the renowned eighteenth-century debate between two architects of the Constitution—Hamilton and Madison—on the constitutionality of George Washington’s neutrality proclamation. In the years that followed, moreover, the decisions, policies, and actions that lay behind Abraham Lincoln’s conduct of the Civil War, Franklin Roosevelt’s navigation of the Great Depression, Harry Truman’s choice for war in Korea and his seizure of the steel industry, Richard Nixon’s conduct of the war in Vietnam and his management of the Watergate crisis, and Ronald Reagan’s handling of the Iran-Contra Scandal, have ignited constitutional storms of great intensity. More recently, the judgments, claims, and exercise of executive power by Bill Clinton and George W. Bush have unleashed resentment and anger and convulsed the nation in debate about the constitutional dimensions of the impeachment power. At the bottom of each constitutional controversy lay fundamental concerns about the scope of presidential power. In a manner that reflects the perennial nature of separation of powers disputes, the quarrels often involved the authority to initiate and conduct war, claims of executive privilege and immunity, the authority to conduct and manage American foreign policy, the power to order covert actions, and executive orders.

The Study of Presidential Powers The controversies unleashed by the exercise of executive power have sparked scholarly inquiry and induced scholars to explore the constitutional origins, meaning, and development of presidential power. Through World War II, presidential scholars, notably political scientists and historians, were at the forefront of those engaged in constitutional analysis of presidential action. From its birth at the turn of the twentieth century, the American Political Science Association featured the study of public law as one of its principal fields of study. Edward S. Corwin, an eminent historian, political scientist and presidential scholar emerged as one of a handful of leading constitutional commentators in the first half of the century. Law professors made notable contributions to the field of constitutional law, of course, but their emphasis on other legal subjects meant that the study of constitutional law was not a focal point of interest. The relative dominance of political scientists in the field of public law changed, rather abruptly, in the 1950s as the discipline vacated study of constitutional law and the constitutional powers of governmental institutions, preferring to focus its energies on what Richard Pious and Christopher Pyle characterized as the “amoral aspects of political behavior and the policymaking process.”10 The field was driven by behavioralism and concerns about the effectiveness of governmental actions, with an emphasis on description rather than normative analysis, and efficiency rather than legality. With this new direction, political scientists largely abandoned the study of constitutional law, including analysis of the constitutionality of presidential actions. As they vacated this territory, a vacuum was created and subsequently filled by instructors in the law schools. In 1963, a study examined those

The Presidency and the Constitution 15 fields within the discipline of political science in which the most important work was being conducted. Public law was at the bottom.11 The emphasis on the efficient exercise of power reflected, in part, the political and national security implications of the Cold War. In a climate in which governmental officials and scholars were gripped by the argument that the president required virtually unfettered power to manage the nation’s foreign affairs and security policies, few people questioned the legality of presidential actions. The emphasis was on results, not means. The focus on outcomes rather than procedures slighted the principles of constitutionalism, to be sure, but the questions of governmental limits and violations pushed constitutional concerns to the background. The mood was personified in Secretary of State Dean Acheson’s dismissal of questions about President Truman’s constitutional authority to take the nation into war in Korea in 1950 without congressional authorization. Acheson remarked that “the argument as to who has the power to do this, that, or the other thing, is not exactly what is called for from America at this very critical hour.”12 The influence of the Cold War and the fear of communism excited in presidential scholars a desire for a powerful presidency. A literature of advice extolled the virtues of executive unilateralism. Constitutional constraints on presidential power were dismissed as obsolete in a world that had become small through technological innovations in weaponry threatening to eclipse mankind. The values of unilateralism—speed, dispatch, secrecy, and information—had displaced the republican values of collective decision making, shared powers, and consensus. Demands of deference to the president reflected a pervasive sentiment that urged blind trust in the perception, judgment, wisdom, and temperament of the executive, grounded in the premise that the president alone possessed the information, facts, and expertise necessary to safeguard American interests. The president represented efficiency; Congress, chaos. The perception of international urgency and the specter of nuclear war—indeed, the concern for survival in the minds of strategists and citizens alike—exalted the concept of executive fiat and diminished interest in constitutional process, procedures, and principles. Richard Neustadt’s book Presidential Power, published in 1960, was among the most influential works ever penned on the presidency. Neustadt’s study, which shaped the thinking of a generation of scholars and influenced classroom approaches to the office of the president, made no mention of the Constitution.13 Neustadt introduced a theme about presidential power that reverberated across the curriculum and appeared in virtually every textbook that addressed the presidency. Presidential power, he wrote, “is the power to persuade,” which, he explained, “amounts to more than charm or reasoned argument. . . . For the men he would induce to do what he wants done on their own responsibility will need or fear some acts by him on his own responsibility.” Neustadt wrote for the “man in charge,” a president “who seeks to maximize his power,” which hinged on action, vigor, decisiveness, initiative, and personal power. The nuclear era, he believed, had transformed the Constitution, which, he acknowledged, reflected the understanding that the use of military force “should emanate from the President and Congress.” But the advent of nuclear weapons,

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he reasoned, represented a fundamental change in circumstances: “When it comes to action risking war, technology has modified the Constitution: the President perforce becomes the only such man in the system exercising judgment under the extraordinary limits now imposed by secrecy, complexity, and time.”14 For Neustadt, the constitutional powers of the presidency were less important—far less important—than the president’s power to persuade. Neustadt’s own ability to persuade presidential scholars signaled a sharp decline in studies examining the constitutional powers of the executive. There is little exaggeration, if any, in characterizing political scientists’ interest in the constitutional dimensions of the presidency for a period of two decades, beginning in the 1950s, as episodic. Very few political scientists, for example, addressed the critical issues before the Supreme Court in the landmark Steel Seizure Case, which featured the court’s most searching examination of presidential power. President Truman’s assertion of inherent power to seize the steel industry to avoid a strike raised some of the most profound constitutional issues in American history. In contrast, dozens of political scientists addressed in articles and books the landmark case of Brown v. Board of Education, the most important civil rights case in the nation’s history. Occasional interest was paid to the legality, for instance, of President John F. Kennedy’s quarantine of Cuba during the Cuban Missile Crisis, or to President Lyndon Johnson’s conduct of the Vietnam War. But studies of the president’s constitutional powers were few and far between. By 1974, however, the distinguished presidential scholar Richard Pious could write about a “renaissance of public law” studies.15 The turning point was the Nixon presidency. “Richard Nixon’s actions as president quickened the pulse of scholars and turned them to examination of constitutional law and history regarding his claims to sweeping presidential powers in matters of war and peace, foreign affairs, and national security; his assertion of an “absolute” power of executive privilege coupled with the revelations of a “plumber’s unit”; his use of domestic surveillance of American citizens; and his futile attempts to cover up the Watergate break-in. Awakened by the implications for American democracy of Nixon’s policies, claims, and actions, scholars were again concerned with great normative questions about the Constitution. Seldom had a single president’s assertions of constitutional power triggered such intense interest in executive authority as Nixon’s had. Eminent scholars, including Francis D. Wormuth and Charles Lofgren, probed the constitutional origins and dimensions of the war power in search of evidence to refute Nixon’s claim of an absolute power to wage war.16 Raoul Berger gave fresh meaning to the concept of “timing” with the publication of blockbusters that penetrated the concept of the law of impeachment and the concept of executive privilege, at precisely the moment Americans were contemplating resorting to the first as a remedy for the second.17 Senator Sam Ervin, aided by the insights of Louis Fisher, who was destined to become one of America’s leading authorities and most prolific authors on constitutional matters, held hearings on yet another of Nixon’s sweeping claims to power—impoundment—that threatened the congressional power of the purse.18

The Presidency and the Constitution 17 Arthur Schlesinger, Jr., rebounding from a previous bout of sympathy for a strong presidency, captured the sentiments of the scholarly fraternity in 1973 with his acclaimed book The Imperial Presidency, which characterized the monarchical pretensions of Nixon, to be sure, but also the rising trajectory of presidential power which, he rightly maintained, represented a grave threat to constitutional principles and republic values.19 The specter of Watergate and executive abuse of power provided fodder for penetrating critiques from the pens of Thomas Cronin, Theodore Lowi, and Philip Kurland, who laid bare the mischievous notions that exalted presidential power is legitimate and that it also threatened constitutional norms. The rise of the “Imperial Presidency” came at the expense of Congress and its legislative powers.20 Senator Ervin spoke for many in 1973 when he lamented the diminution of Congress, and wondered whether the “people’s branch” would “remain a viable institution” in the face of executive aggrandizement of power.21 If Nixon’s presidency represented a disservice to the nation, it provided, oddly enough, a service to the cause of constitutionalism. In the wake of Watergate, scholars increased their interest in constitutional procedures and processes; there was again, after a lapse of some two decades, a broad recognition among presidential scholars of the importance of the means to an end. Yet it would be a mistake to believe that interest in the Constitution and executive power reached its peak in relation to Nixon. If he had been a catalyst for an outpouring of interest in, and publications about, presidential power under the Constitution in an inception of sorts, it was in significant ways a mere prologue to the presidency of George W. Bush. As we shall see, Bush’s claims of capacious executive power launched the presidency on a trajectory toward the realm of unlimited power, the netherworld of American Constitutionalism. Not since Oliver Cromwell anointed himself Lord Protector of England had a leader in the Anglo-American world made such sweeping and audacious claims to power. There is little, if any, exaggeration in saying that the Bush administration’s assertions of virtually unfettered power sparked new directions in research on the presidency and produced a cottage industry in commentary on the Constitution and presidential power. What has emerged in the past decade is a voice of concern that reflects an old and distinguished thematical question: What constitutes a legitimate exercise of governmental authority? The Bush administration’s view of presidential power was laid out in the socalled “Torture Memos” that sought to justify President Bush’s “War on Terror.”22 One of the principal authors of the memos, John Yoo—then an assistant attorney general in the office of legal counsel and now a professor of law at the University of California, Berkeley—stated the case in favor of sweeping presidential powers over foreign affairs and war making in a September 25, 2001 memo. Yoo wrote: “We conclude that the Constitution vests the President with the plenary authority as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad—especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States.”23 This memo and others provided the platform for the Bush theory of presidential power, which asserted virtually unrestrained executive authority on

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matters of war and peace. The president, according to the Bush administration, may initiate preventive war without authorization from Congress. As commander in chief he has the sole and exclusive authority to conduct war. Congressional directions and instructions are invidious, constitute micromanagement, and represent an encroachment on presidential power. The president may institute domestic surveillance of Americans’ telephone calls and e-mails as part and parcel of his authority to wage war on terrorism. Statutes in conflict with the president’s policies constitute a violation of executive authority. The theory also contends that the president may designate, seize, and detain any American citizen as an “enemy combatant” and imprison him in solitary confinement indefinitely, without access to legal counsel and a judicial hearing. The Constitution, it has been asserted, provides no right of habeas corpus to American citizens. It is maintained, moreover, that the president possesses the authority to suspend the Geneva Convention and the federal laws that prohibit torture. Among other powers asserted, the president, as commander in chief, may establish military tribunals, terminate treaties, order acts of extraordinary rendition, and take actions that he perceives necessary to the maintenance of national security and the common defense. Under this theory, any law that restricts the commander in chief’s authority is presumptively unconstitutional. At all events, the president may exercise an “override” authority in the unlikely event that Congress would, by statute, seek to restrain the president. Courts have no role to play in matters of war and peace, but if they do entertain lawsuits, they should defer to the president and refrain from second-guessing his foreign policy. The stunning assertions of presidential power sent scholars scrambling to the historical stacks in search of materials and records to assess and rebuke the merits of his claims. The scholarly community prepared to meet Yoo on his own turf. The many studies that followed produced a cottage industry of criticism.24

Foreign Affairs and the Constitution The Bush administration maintained, in John Yoo’s memos, that the Constitution vests in the president sweeping powers to conduct the nation’s foreign affairs, including the power as chief executive and commander in chief to order the use of military force to advance and defend America’s security interests. Yoo, the most prominent and visible defender of the administration’s legal theories, had earlier written that, on the basis of English history, “The Framers created a framework designed to encourage presidential initiative in war. Congress was given a role in war-making decisions not by the Declare War Clause, but by its powers over funding and impeachment.” In addition, federal courts were to have no role at all.25 The Yoo memorandum gives voice to the Bush administration’s view that the framers of the Constitution provided for presidential domination of U.S. foreign relations. The claim of untrammeled executive power to formulate, manage, and conduct the nation’s foreign affairs triggered a literature of criticism. Critics rejected each of the pivot points of the Bush administration’s reasoning: original intent; inherent executive power; a presidential power to initiate war, including

The Presidency and the Constitution 19 preemptive war; the Commander in Chief Clause; and reliance on the sole organ doctrine.26 Numerous scholars have pointed out, in contrast to Yoo’s assertion of “plenary” executive power in foreign affairs—the sound of which echoed the Stuart Kings’ authority, that the framers rejected the British model of foreign relations. Critics of Yoo’s analysis have observed that the text of the Constitution alone makes clear that Congress was given the lion’s share of the nation’s authority in foreign affairs. The framers’ rejection of unilateral executive authority over foreign affairs reflected not only their deep-seated fear of presidential unilateralism, but also their commitment to collective decision making and republicanism. The framers’ preference for collective decision making runs throughout those provisions of the Constitution that govern the conduct of foreign policy. Thus, the Constitution assigns to Congress senior status in a partnership with the president for the purpose of conducting foreign affairs. Article 1 vests in Congress broad, explicit, and exclusive powers to regulate foreign commerce, raise and maintain military forces, grant letters of marque and reprisal, provide for the common defense, and initiate all hostilities on behalf of the United States, including full-blown war. As Article 2 indicates, the president shares with the Senate the treaty-making power and the authority to appoint ambassadors. The Constitution assigns only two foreign affairs powers to the president. He is designated commander in chief of the nation’s armed forces, although, as we will see, he acts in this capacity by and under the authority of Congress. The president also has the power to receive ambassadors, but the framers viewed this as a routine, administrative function, devoid of discretionary authority. This list exhausts the textual grant of foreign affairs authority to the president. The president’s constitutional powers are few and modest, and they pale in comparison to those of Congress. James Pfiffner observed about the framers that “they brought their doubts about the motives of executive power with them to the Constitutional Convention.”27 The framers’ fears of executive power was undergirded by an equally emphatic commitment to the republican principle of collective decision making, one grounded in the belief that the combined wisdom of the many is superior to that of one. They perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and those of the New World. The Constitutional Convention’s deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, as well as the allocation of various foreign affairs powers to different departments and agencies of government, reflected the delegates’ determination to apply the doctrine of separation of powers and checks and balances—the principle of the rule of law and constitutionalism—to the realm of foreign relations as rigorously as it had been applied to the domestic domain. This critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive, and warned that the separation of those powers would invite chaos, disorder, and even disaster. However, the framers brought a fresh outlook, a

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new vision, to foreign policy, one that recognized that the conduct of foreign affairs includes some elements that are primarily legislative, others that are essentially executive, and still others that are characteristically judicial. In Federalist No. 47, James Madison observed that “treaties with foreign sovereigns” assume, once they are made, “the force of legislative acts.”28 The Constitution, moreover, characterizes the power to declare, authorize, and initiate war as legislative and the power to conduct it as executive. In addition, the Supremacy Clause imposes upon judges the duty to enforce treaties as the law of the land. The Constitutional Convention thus studiously discarded the British model, and its location of plenary power in the executive, as obsolete and inapplicable to the republican manners of the United States. The framers’ dramatic break from the English model, scholars have observed, was further made clear in the Federalist Papers. In Federalist No. 69, Alexander Hamilton explained that the president has “concurrent power with a branch of the legislature in the formation of treaties,” whereas the British king “is the sole possessor of the power of making treaties.” The royal prerogative in foreign affairs, Hamilton remarked, was shared with Congress. Perhaps most significantly, Hamilton contrasted the allocation of the war powers in England and America. The power of the king, he wrote, “extends to the declaring of war and the raising and regulating of fleets and armies.” Unlike the British king, the American president “will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union.”29 In sum, there is, contrary to President Bush’s claim, no unilateral presidential authority to conduct the foreign relations of the United States. The framers sought to place that power beyond the reach of the president. As Hamilton explained in Federalist No. 75, “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”30

War Powers John Yoo’s September 25, 2001 memo for the Justice Department, in which he asserted a unilateral, inherent executive power—plenary in scope—to initiate war, ignited a storm of controversy. President Bush subsequently invoked the Vesting Clause as additional constitutional authority, and shocked many when he advanced the unprecedented concept of the presidential power to launch “preemptive war.” In September 2002, the Bush White House issued its National Security Strategy, a document that, among other things, addressed the prospect of “enemies” that might seek to acquire weapons of mass destruction, and made the case for the presidential power to “act against such emerging threats before they are fully formed.” Bush stated that “history will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to peace and security is the path of action.”31 These assertions of presidential power provoked penetrating critiques from the scholarly community.

The Presidency and the Constitution 21 Scholars have challenged Yoo’s assertion that the framers of the Constitution assigned to the president the authority to initiate war on behalf of the American people. Recent commentary has rightly noted that the framers vested in Congress the sole and exclusive authority to commence war, including lesser military activities.32 Bush is not the first to assert an executive power to take the nation to war; it is likely that he will have successors in this regard as well. Harry Truman was the first president to claim the constitutional authority to initiate war. His unilateral decision to intervene in the Korean War represented the first in a long series of presidential wars. As scholars have demonstrated anew, every president since Truman, with the exception of Dwight D. Eisenhower and Barack Obama, has advanced a presidential war power. Of course, the most recent assertion is no more legitimate than the first.33 President Bush’s assertion of a unilateral executive power to wage war finds no foundation in the text of the Constitution or in the debates in the Constitutional Convention. As Louis Fisher has pointed out, the framers “broke decisively” from the tradition of vesting the war power in the hands of the executive.34 Hamilton’s analysis in Federalist No. 69, as we have seen, laid bare the differences between the powers possessed by the English king and those that would be exercised by the president. In England, he observed, the king made the decision to go to war; in America, the Constitution assigned that power to Congress. John Hart Ely, an eminent constitutional scholar, wrote tellingly in 1993 that when academics try to divine the “original understanding” of the Constitution, the results can be “obscure to the point of inscrutability,” but when the dispute focuses on the war power, all wars—total or limited, declared or undeclared— “had to be legislatively authorized.”35 In 2007, Frederick Schwarz, Jr. and Aziz Huq combined their efforts in a superb book on the expansion of executive power and its disregard of constitutional norms. They justly stated: “While claiming to have an ‘originalist view’ of the Constitution, the acolytes of exclusive presidential power in fact ignore all those parts of the Constitution that are inconvenient for their views of the text.”36 Facts, including constitutional facts, are stubborn things. Advocates of a presidential power, for example, can hardly overlook Hamilton’s definition of the war power: “When the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to war.”37 It is not as if Hamilton was alone in his explanation of the repository and consequences of the war power. Indeed, he echoed the view from Philadelphia. In the course of the Convention, only a single framer—Pierce Butler of South Carolina—defended the notion of a presidential war power. But in the face of stern and immediate criticism from his fellow delegates, Butler beat a quick retreat; by the end of the day he, too, had joined the unanimous chorus of voices that embraced a congressional war power.38 An early draft of the Constitution provided that Congress should be vested with the power to “make war.” On August 17, 1787, in a joint resolution, Elbridge Gerry and James Madison suggested that the word “declare” be substituted for the word “make,” “leaving to the Executive the power to repel sudden attacks.” The subsequent discussion

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revealed a consensus that the president could not be trusted with the authority to initiate war. Roger Sherman stated: “The Executive shd. be able to repel and not to commence war.” In response to Butler’s proposal for “vesting the [war] power in the President,” Gerry declared that he “never expected to hear in a Republic a motion to empower the Executive alone to declare war.” Oliver Ellsworth added: “It shd. be more easy to get out of war, than into it.”39 Madison, who contributed more than anyone else to the Constitution, later wrote, in an instance of full agreement with Hamilton, that the “fundamental doctrine of the Constitution” was “that the power to declare war is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite or proper . . . .[for the president]”40 As Pfiffner has observed, there “can be little doubt that the framers intended to give Congress and not the President the authority to decide about whether to go to war.”41

Commander in Chief John Yoo invoked the Commander in Chief Clause in his September 25, 2001 memo as a source of “plenary” power to initiate military force against foreign nations. In a subsequent memo, written on August 1, 2002, Yoo declared: “The President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces.”42 According to the Bush administration, the president possessed unlimited authority both to commence war and conduct it. Congress had no authority to interfere with the president’s decisions, short of cutting off funding. Yoo’s position mirrored the view of the king’s power as claimed by the Stuart Kings at the peak of their powers in the mid-seventeenth century, before the onset of the English Civil Wars. Yet Hamilton, in Federalist No. 69, in the same essay in which he engaged in a painstaking effort to distinguish the powers enjoyed by the king from that of the president, concluded: “There is no pretense for the parallel which has been attempted between him [the president] and the king of Great Britain.”43 Scholarly critics of Yoo’s assertions have advanced rich historical materials from the founding period, including Federalist Papers and Supreme Court decisions, to cut the ground from beneath Professor Yoo’s claims. In yet another controversial assertion about the scope of the Commander in Chief Clause, former Attorney General Alberto Gonzales claimed for the president in his capacity as commander in chief the inherent authority to “override” statutory commands. Let us first consider the provision as a source of military authority. The Commander in Chief Clause entails no authority to change the legal status of the United States by moving the country from a state of peace to a state of war. As we have seen, that is a legislative power and, as a consequence, the war power is constitutionally assigned to Congress. Manifestly, the textual assignment of a power to one branch of government precludes its exercise by another. Otherwise the enumerative scheme that shapes the Constitution would have neither utility

The Presidency and the Constitution 23 nor purpose. Clearly, the framers’ ascription of the war power to Congress was meant to deny to the president the exercise of that power. In fact, the Commander in Chief Clause confers upon the president no constitutional authority except the power to repel the invasion of the United States. The president’s authority to conduct a war, once authorized by Congress, is conferred by statute. As a consequence, the president, in his capacity as commander in chief, has no power—except to resist sudden attacks on the nation—that cannot be stripped by Congress. The Commander in Chief Clause reflects the framers’ knowledge of the norms and practices that were 150 years old when the group convened in Philadelphia. They did not invent the office of commander in chief; rather, they employed the concept as it was invented and introduced by the English in the seventeenth century. As a practice, the English assigned to the ranking military official in each theater of battle the title of “commander in chief.” The office was clearly defined and sharply circumscribed: The commander in chief, purely a military officer, was subordinate to a political superior, such as parliament, or the secretary of war, and required to perform all orders imposed upon him. The Continental Congress borrowed the practice and invoked it on June 17, 1775, when it unanimously appointed George Washington as general. Washington was named “general and commander in chief, of the army of the United Colonies” and ordered “punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies, or committee of Congress.”44 Congress frequently directed the commander in chief on military policy matters.45 The framers’ familiarity with the tradition and practice of the office of commander in chief suggests their lack of concern about the post and accounts for the fact that there was virtually no debate on the Commander in Chief Clause in Philadelphia. When Hamilton read his plan to the Convention on June 18, he probably did not propose the title “commander in chief,” but had it in mind when he said the president was “to have the direction of war when authorized or begun.”46 Hamilton’s speech captured the essence of the president’s power as commander in chief: When war is “authorized or begun,” the president is to command the military operations of American forces. In his command of troops supplied by Congress, the president, like George Washington, would be required to perform duties assigned by the legislature. Congressional instructions to the commander in chief, whether appreciated or resented, are derived from congressional authority, as Madison described it, to “commence, continue, or conclude” war.47 Presidential conduct of a military campaign, in derogation of directions and commands from Congress, would deprive the legislature of its ability to “conclude” a war. It may well be the case, as history demonstrates, that Congress typically will refrain from imposing statutory commands, preferring instead to defer to the president who, in turn, often will defer to admirals and generals in the conduct of war. But policy considerations and accusations of micromanagement should not be confused with constitutional powers. When, in fact, Congress is moved to exercise its broad powers to direct the commander in chief on the battlefield and the high seas, it will do so.48 The Supreme Court placed the issue beyond doubt when it ruled in 1804, in

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Little v. Barreme, that the commander in chief is subject to legislative controls—a precedent affirmed two years later by Justice William Paterson in United States v. Smith.49 Contrary to the Bush administration’s contentions, the president, in his capacity as commander in chief, has no inherent power to defy statutory commands. In the event of an attack on the United States, the commander in chief is expected to repel the invasion. That is his sole constitutional power. For additional power, he is dependent on statutory grants. The president’s authority to repel an attack, it is to be emphasized, does not confer upon him authority to initiate a state of war. That power, as Hamilton and Madison observed, is vested solely and exclusively in Congress. As a consequence, it is for Congress alone to determine whether a sudden attack or even a series of attacks constitutes a state of war or merely an act of war. The determination may hinge on several factors, including the relative strength of the attacking party, the degree of congressional outrage, and congressional perception of public sentiment. Nothing in the history of the Commander in Chief Clause precludes Congress from asserting its constitutional authority over the commander in chief’s conduct of the war. Indeed, the nation would have been better served if Congress had been more vigilant during the Vietnam War, a historic demonstration of executive unilateralism going up in flames. Many Americans, moreover, might harbor similar feelings about the war in Iraq. It is critical to understand that the president, as commander in chief, is accountable to Congress, as evidenced by the Impeachment Clause. Louis Henkin has justly observed: “In war the President’s powers as Commander in Chief are subject to ultimate Congressional authority to ‘make’ the war, and that Congress can control the conduct of the war it has authorized. . . . [The President] would be bound to follow Congressional directives not only as to whether to continue the war, but whether to extend it to other countries and other belligerents, whether to fight a limited or unlimited war, perhaps, even, whether to fight a ‘conventional’ or a nuclear war.”50 Few of the founders of the Constitution expressed apprehension of the Commander in Chief Clause. The lone concern was that conveyed by the New Jersey Plan: that a president who personally assumed command of the army and naval forces might use them to effectuate a military coup. The concerns were raised in several state conventions. However, they were dampened by assurances that Congress could control the commander in chief through its exclusive authority to raise and support armies. Lingering concerns were laid to rest by Hamilton’s essay in Federalist No. 69, which stated: “The president is to be commander in chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.”51 Let us sum up what recent commentaries on the Commander in Chief Clause have affirmed. The commander in chief, as Hamilton explained, was “nothing

The Presidency and the Constitution 25 more than . . . first general and admiral” in “the direction of war when authorized or begun.” Once Congress has initiated war, it may issue instructions and directions to the president through statutory commands, which the president is duty bound to execute. As Michael Ramsey has observed, “presidential advocates have not been able to point to any sustained founding-era arguments contending that Congress could not regulate military operations by statute.”52 The office, in the tradition of a century and a half, carried with it no power over war and peace, and it entailed no authority to conduct American foreign policy. Yoo’s view of the Commander in Chief Clause, Pfiffner has rightly noted, “stretch[ed] the text of the Constitution and the deliberations of the framers beyond reasonable interpretation.”53 It is also inconceivable that the clause might be read to permit the president, as Gonzales claimed for the Bush administration, to defy statutory commands in the exercise of a “commander in chief override authority.” There is in this claim the specter of the Stuart Monarchy. In truth, as Schwarz and Huq have observed, the constitutional “text alone cannot sustain a sweeping power to suspend laws” for the simple reason that a presidential power to suspend laws would remove all limits on his authority.54 In 1806, in United States v. Smith, Justice Paterson rejected the claim that the president might authorize military actions in violation of statutory law. “The president of the United States,” he wrote, “cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids.”55 There is nothing in the history of the Commander in Chief Clause to support the claim of an executive power to suspend or dispense with the enforcement of the law. In fact, it is not remotely a source of power for the president to improvise law or to act in violation of legislation. The assertion that the president may override laws is essentially a claim of the power to revise the law in the tradition of the monarchical prerogative to suspend the law or dispense with its enforcement. This assertion is utterly irreconcilable with requirements imposed by the Take Care Clause, and would gut republican values and the rule of law. The Supreme Court has said that “[no] officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”56 The president may not ignore or defy the law on the premise of necessity, for that would place the law in the eye of the beholder, and reduce law to a matter of arbitrary executive will, rather than a constitutionally prescribed process. Indeed, it would transform the rule of law into a regime of executive fiat. No person, least of all the nation’s chief law enforcement officer, may flaunt the law.57 Surely the presidential oath of office and the Take Care Clause retain currency, even in an age of terrorism. Manifestly, the president is amenable to the law, as reflected in such landmark cases as Marbury v. Madison, Youngstown Sheet and Tube Co. v. Sawyer, United States v. Nixon, and Clinton v. Jones. The Bush administration’s sweeping assertions of presidential power were sufficient to construct a solid foundation for a university course on the presidency and the constitution. In addition to the claims of a unilateral executive war power, legal

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advisors urged presidential power that would suspend and terminate treaties, create military tribunals, order extraordinary rendition, and detain American citizens indefinitely, without access to counsel or courts of law. Many of these assertions of power were grounded in the concept of inherent power. Those claims were subjected to searching examination and criticism. In 2007, Louis Fisher gathered a group of prominent scholars to examine in a special edition of Presidential Studies Quarterly the concept of inherent executive power and its invocation by the Bush White House. For his part, Fisher exposed the frailty of the claims, particularly as they applied to the creation of military commissions, enemy combatants, extraordinary rendition, and domestic surveillance. In that same volume, Bruce Fein, a former deputy attorney general under President Ronald Reagan, borrowed from Jeremy Bentham’s wit and wisdom and sharply dismissed Bush’s claim of inherent power to “target American citizens on American soil for warrantless electronic surveillance . . . in defiance of the Foreign Intelligence Surveillance Act,” as “nonsense on stilts.”58 The frequent assertions of an inherent presidential power have sparked new lines of inquiry by presidential scholars.

Unitary Executive Theory The theory—indeed, the phrase—“unitary executive” was born during the presidency of Ronald Reagan.59 Attorney General Edwin Meese assumed that one of the missions of the Justice Department was to increase presidential power, particularly by denying congressional authority to regulate any aspect of executive power. Advocates of the Unitary Executive Theory in the 1980s were concerned with expanding presidential power, not over foreign affairs but in the realm of domestic affairs, largely for the purpose of controlling independent agencies. The intellectual platform of the unitary executive rests on several planks and pillars. First, and foremost, the Constitution’s Vesting Clause of Article 2 grants to the president all, not just some, of the executive power. Second, since the president has the duty under the Take Care Clause to enforce the laws, Congress may not interfere with any presidential action pursuant to that duty. That argument is supported by the third premise, which claims that the Constitution provides for an absolute separation of powers. In that view, Congress may not “exercise any control, direct or indirect, over the use of that power by the executive branch.”60 Fourth, the Vesting Clause and the Take Care Clause grant the president exclusive authority to remove executive branch officials.61 Advocates of this theory—“Unitarians”—invoke for support Federalist No. 70, in which Hamilton addressed the need for “energy” in the executive, and extolled the virtues of the framers’ decision to create a single rather than plural presidency. Delegates to the Constitutional Convention desired “unity” in the executive so that the president could act with “decision, activity, secrecy, and dispatch.”62 The Reagan administration’s desire for increased executive power was hardly novel or surprising; historically, most presidents have sought greater authority. Its record in the courts, however, was decidedly mixed. It earned an important

The Presidency and the Constitution 27 victory in 1983 when the Supreme Court, in INS v. Chadha, invalidated the “legislative veto,” which enabled Congress to supervise administrative agencies.63 But it suffered an important setback in 1988 in Morrison v. Olson, when the court upheld the independent counsel statute, which Reagan’s lawyers claimed interfered with the president’s sole authority over prosecutions as part of his sole duty to enforce the laws.64 Scholars have continued to examine the premises and consequences of the Unitary Executive Theory. Robert Spitzer has reduced the claims to two: “presidents have sole and complete control over the executive branch,” and “the other branches of government may not interfere with presidential actions arising from these executive powers.”65 Spitzer’s summary is reflected in the assertions of two proponents of the theory. Steven Calabresi and Daniel Lev have explained that the theory is supported by the Vesting Clause, which is a “grant of all the executive power in the country to the President.” Accordingly, all members of the executive branch act in the name of the president, who delegates authority to them. “There is,” they claim, “simply no other constitutional basis on which the executive branch subordinates could otherwise act.”66 Lawyers in the Bush administration’s Office of Legal Counsel have advanced similar reasoning: “[Because] the Constitution vests this power in him [the president] alone, it follows that he is solely responsible for supervising and directing the activities of his subordinates in carrying out executive functions.”67 Critics have identified several flaws in the Unitarians’ reasoning. First, their assumption that Congress cannot impose statutory duties upon officials within the executive branch flies in the face of Supreme Court rulings since Marbury v. Madison (1803). In Marbury, Chief Justice John Marshall held that when the Secretary of State performs a statutory duty as an “officer of the United States,” he is “bound to obey the laws.”68 In this capacity, the secretary acts “under the authority of law, and not by instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.” Subsequent cases have held that neither the president nor department heads possess any authority to deny or otherwise interfere with an officer’s performance of a statutory duty.69 Second, the assumption that all executive power is vested in the president to ensure that laws are faithfully executed is mistaken. As Louis Fisher has pointed out, “That would be an impossible assignment.” The Take Care Clause “empowers the President to see that the law is faithfully carried out. The great bulk of that work is done by Executive Branch employees who remain legitimately outside the President’s direct control provided they faithfully discharge their assigned tasks.”70

Signing Statements The practice of presidential signing statements dates to the administration of James Monroe. For most of our history, presidents issued signing statements for rhetorical purposes: to declare their support for legislation or, occasionally, to publicly express some concern about the law. For some 150 years, their use inspired little controversy. That changed, however, when Presidents Gerald Ford

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and Jimmy Carter used them as instruments to convey constitutional reservations and concerns. The Reagan administration escalated their use, largely as a means of influencing the law. Indeed, in 1986, a young attorney in the Justice Department, Samuel Alito, Jr., destined for the Supreme Court, suggested the use of signing statements as a means of increasing executive power to “shape the law,” and to “curb some of the prevalent abuses of legislative history.”71 The American public knew little of the practice of signing statements until Charlie Savage, a reporter for the Boston Globe, wrote in an article in 2006 that George W. Bush had “quietly claimed authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”72 Critics likened Bush’s claim of power to an “item veto,” and drew a parallel to the dispensing and suspending powers of the Stuart Kings. Signing statements are unobjectionable if they are used for rhetorical purposes. However, their use becomes troublesome if they are employed to deny effect to legislation that the president considers constitutionally objectionable. In that case, they function as an item veto, which offends congressional power to make laws, particularly because the statements circumvent the congressional power to vote for an override. In that event, the president becomes the lawmaker. Further, unilateral statements by the president of an intention to ignore or willfully change substantive provisions in a statute represents a violation of the president’s duty “to take Care that the Laws be faithfully executed”: a failure the framers of the Constitution regarded as an impeachable offense. Signing statements have produced a large literature and their continued use by President Obama is likely to result in additional scholarly examination and commentary.

Conclusion The historical effort to rein in executive power and subordinate it to the rule of law reflects a pattern of fits and starts. For the past half-century, Americans have witnessed a steady growth of presidential power and stubborn resistance to measures designed to tame it. In the wake of the 9/11 outrage, the exercise of presidential power has often soared beyond its previous peaks. In an age characterized as the War on Terror, in which the theme of “permanent war” has assumed a customary place in the thoughts and politics of American citizens, it is highly unlikely that the trajectory of presidential power will change. To date, the Obama administration has not made great strides in reversing this trend. In all likelihood, the continued growth of presidential power promises to supply scholars with years and decades of episodes and controversies to examine. Scholars and commentators will perhaps discuss and analyze new manifestations of presidential claims to power, but they will bear a certain resemblance to the disputes and controversies that have colored U.S. history for more than 200 years. It has always been thus, for separation of powers issues are perennial. There will be, moreover, plenty of opportunities for hardy scholars to grapple with solutions to assertions of presidential power that rise above constitutional principles and republican values. But whatever remedies

The Presidency and the Constitution 29 are touted, they will be hard pressed to improve upon the timeless advice of Justice Robert H. Jackson, who, in the landmark Steel Seizure Case, observed: “With all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”73

Notes 1 Sir William Holdsworth, A History of English Law (London: Metheun, 1937), 428–31. 2 Thomas Bayly Howell, Howell’s State Trials, (1637), 826, 844. 3 Sir William Blackstone, Commentaries on the Laws of England, vol. 2 (Oxford: Clarendon Press, 1765–1769), 232. 4 James Wilson, second in importance to James Madison as an architect of the Constitution, observed that “the most powerful magistrate should be amenable to the law . . . no one should be secure while he violates the constitution and the laws”; see James Wilson, The Works of James Wilson, ed. Robert Greene McCloskey (Cambridge: Harvard University Press, 1937), 425. 5 Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), 62–3; Reid v. Covert, 354 U.S. 1, 5–6 (1957). 6 John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (1973):920, 949. 7 Griffith J. McRee, Life and Correspondence of James Iredell (New York: D. Appleton, 1857–1858), 146. 8 Alexander Hamilton, “Camillus, No. XXXV1,” in The Works of Alexander Hamilton, federal ed., ed. Henry Cabot Lodge (New York: G.P. Putnam’s Sons, 1904), 166. 9 U.S. (1 Cranch) 137, 176 (1803). 10 Richard M. Pious and Christopher Pyle, The President, Congress, and the Constitution: Power and Legitimacy in American Politics, [emphasis in original], (New York: The Free Press, 1984), xv. 11 Albert Somit and Joseph Tanenhaus, “Trends in American Political Science: Some Analytical Notes,” American Political Science Review 57 (1963):933, 941. 12 Arthur Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973), 95–6. 13 Richard Neustadt, Presidential Power (New York: Columbia University Press, 1960); Joseph Bessette and Jeffrey Tulis remarked in 1981: “what was truly distinctive about his approach was how little it had to say about specific constitutional provisions”; see Bessette and Tulis, eds., The Presidency in the Constitutional Order (Baton Rouge: Louisiana University Press, 1981), 4. This discussion is indebted to Louis Fisher’s fine essay, “Political Scientists and the Public Law Tradition,” in The Oxford Handbook of the American Presidency, eds. George C. Edwards III and William G. Howell (New York: Oxford University Press, 2009), 797–815. 14 Neustadt, 23, 43, 166, 171, 187–88. 15 Richard M. Pious, “Is Presidential Power ‘Poison’?,” Political Science Quarterly 89 (1974):627, 635–37. 16 Francis D. Wormuth, “The Nixon Theory of the War Power: A Critique,” California Law Review 60 (1972):623; Charles Lofgren, “War-Making Under the Constitution: The Original Understanding,” Yale Law Journal 81 (1972):672. 17 See Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, MA: Harvard University Press, 1973); and Berger, Executive Privilege: A Constitutional Myth (Cambridge, MA: Harvard University Press, 1974). 18 Sen. Ervin questioned, in the course of hearings on the unchecked practice of impoundment, “whether the Congress of the United States will remain a viable institution or whether the current trend toward the executive use of legislative power is to continue unabated until we have arrived at a presidential form of government”; Ervin justly

30

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25 26

27 28 29 30 31 32 33

David Gray Adler criticized executive aggrandizement of legislative authority, but he also found Congress culpable for the rise of presidential dominance: “The executive branch has been able to seize power so brazenly only because the Congress has lacked the courage and foresight to maintain its constitutional position”; quoted in Louis Fisher, Congressional Abdication on War and Spending (College Station: Texas A&M University Press, 2000), 119. See Schlesinger, The Imperial Presidency. See Thomas E. Cronin, The State of the Presidency (Boston: Little, Brown, 1975); Theodore J. Lowi, The Personal President (Ithaca: Cornell University Press, 1985); and Philip B. Kurland, Watergate and the Constitution (Chicago: University of Chicago Press, 1978). Quoted in Fisher, Congressional Abdication, 119. The memos are conveniently collected in Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005). Ibid., 3–24. For discussion, see Frederick A. O. Schwarz, Jr. and Aziz A. Huq, Unchecked and Unbalanced (New York: New Press, 2007); James P. Pfiffner, Power Play: The Bush Presidency and the Constitution (Washington, DC: Brookings Institution Press, 2008); Louis Fisher, Presidential War Power, 2nd rev. ed. (Lawrence: University Press of Kansas, 2004); Louis Fisher, Military Tribunals & Presidential Power (Lawrence: University Press of Kansas, 2005); Richard Pious, The War on Terrorism and the Rule of Law (Los Angeles: Roxbury Press, 2006); and Andrew Rudalevige, The New Imperial Presidency: Renewing Presidential Power After Watergate (Ann Arbor: University of Michigan Press, 2006). A collection edited by Michael A. Genovese and Lori Cox Han, The Presidency and the Challenge of Democracy (New York: Palgrave MacMillan, 2006), includes several insightful examinations of the rise of presidential power: Louis Fisher, “From Presidential Wars to American Hegemony: The Constitution After 9/11”; Nancy Kassop, “The Constitutional Checks and Balances that Neither Check Nor Balance”; Robert J. Spitzer, “The Commander in Chief Power and Constitutional Invention in the Bush Administration”; Lori Cox Han, “The President Over the Public: The Plebiscitary Presidency at Center Stage”; and David Gray Adler, “The President as King: The Usurpation of War and Foreign Affairs in the Modern Age.” See also Adler, “George Bush as Commander in Chief: Toward the Netherworld of American Constitutionalism,” Presidential Studies Quarterly 36 (2006):525, and Adler, “George Bush and the Abuse of History: The Constitution and Presidential Power in Foreign Affairs,” UCLA Journal of International Law and Foreign Affairs 12 (2007):75. See also Sanford Levinson, “Constitutional Norms in a State of Permanent Emergency,” Georgia Law Review 40 (2006):699. John Yoo, “The Construction of Politics by Other Means: The Original Understanding of War Powers,” California Law Review 84 (1996):167, 170. See also, Yoo, “Judicial Review and the War on Terrorism,” George Washington Law Review 72 (2003):427. See scholars cited in note 24. See also Michael Ramsey, The Constitution’s Text in Foreign Affairs (Cambridge, MA: Harvard University Press, 2007); Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Boston: Little, Brown, 2007); Gene Healy, The Cult of the Presidency (Washington, DC: Cato Institute, 2008); Russell A. Miller, U.S. National Security, Intelligence and Democracy (New York: Routledge, 2008); and John Dean, Broken Government (New York: Viking, 2007). Pfiffner, 75. Edward Mead Earle, ed., Federalist No. 47, (Modern Library, 1937), 314. Federalist No. 69, 445–53. Federalist No. 75, 487. National Security Strategy, Sept. 17, 2002, 2. For example, see Fisher, Presidential War Power, 1–16; Pfiffner, 76–83; Adler, “Bush and Abuse of History,” 83–92, 120–34; and Healy, 20–33. In Powell v. McCormack, Chief Justice Earl Warren wrote: “That an unconstitutional action has been taken before surely does not render that action any less unconstitutional

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34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57

58 59 60 61 62 63 64 65 66 67 68 69

at a later date”; 395 U.S. 486, 546 (1969). Earlier, Justice Felix Frankfurter had stated: “Illegality cannot attain legitimacy through practice”; Inland Waterways Corp. v. Young, 309 U.S. 518, 524 (1940). Fisher, Presidential War Power, 1. John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (Princeton, NJ: Princeton University Press, 1993), 3. Schwartz and Huq, 171. Hamilton, Alexander, “Letters of Lucius Crassus,” in The Works of Alexander Hamilton, vol. 8, ed. H.C. Lodge, (New York: Putnam, 1904), 249–50. Farrand, 319. Ibid, 318–19. Madison, James, “Letters of Helvidius, No. 1” in Writings of James Madison, ed. G. Hunt, vol. 6 (New York: Putnam, 1900–1910), 174. Pfiffner, 77. Greenberg and Dratel, 218. Federalist No. 69, 448. Journals of the Continental Congress II (June 17, 1775), (Washington, DC: U.S. Government Printing Office, 1905), 96. For example, on June 20, 1775, the Continental congress ordered Washington to Massachusetts to take command of the army of the united colonies. Ibid., 100–101. Farrand, 292. Madison, 148. See discussion in Adler, “Bush and Abuse,” 132–33. Little v. Barreme, 6 U.S. (2 Cranch) (1804), 170, 177; United States v. Smith, 27 F. Cas. (Wheeler C.C.), 1192–31 (C.C.N.Y. 1806) (No. 16,342). Louis Henkin, Foreign Affairs and the United States Constitution, 2nd ed. (Oxford: Clarendon Press, 1996), 103–4. Federalist No. 69, 448. Ramsey, 255. Pfiffner, 75. Schwarz and Huq, 170. United States v. Smith, 1230. United States v. Lee, 106 U.S. 196, 220 (1882). In Olmstead v. United States, Justice Louis Brandeis observed: “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. . . . If the government becomes a lawbreaker, it breeds contempt for law”; 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). “Special Issue: Invoking Inherent Presidential Powers,” Presidential Studies Quarterly 37 (March 2007):1–123. See Fisher, “Invoking Inherent Powers: A Primer,” 1; and Bruce Fein, “Presidential Authority to Gather Foreign Intelligence,” 23. Jeffrey Rosen, “Power of One,” New Republic, July 24, 2006, 8; quoted in Schwarz and Huq, 156. Schwarz and Huq, 157. Pfiffner, 220. Federalist No. 70, 455. INS v. Chadha, 462 U.S. 919 (1983). Morrison v. Olson, 487 U.S. 654 (1988). Robert J. Spitzer, Saving the Constitution from the Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (Cambridge: Cambridge University Press, 2008), 94–6. Calabresi and Lev, “Legal Significance of Signing Statements,” quoted in Pfiffner, 220. Pfiffner, 220. 5 U.S. [ 1 Cranch] 137 (1803). Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610 (1838), in which the Court held that Congress may create executive officer duties of a ministerial nature.

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70 Louis Fisher, “The Unitary Executive and Inherent Executive Power,” University of Pennsylvania Journal of Constitutional Law 12 (2010):569, 591. 71 Louis Fisher, “Signing Statements: Constitutional and Practical Limits,” William & Mary Bill of Rights Journal 16 (2007):183, 192. See also Philip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements,” Presidential Studies Quarterly 35 (September 2005):515–16; Christopher S. Kelley, “‘Faithfully Executing’ and ‘Taking Care’—The Unitary Executive and Presidential Signing Statements,” paper presented at the 2002 American Political Science Association annual meeting, Boston, Massachusetts. 72 Charlie Savage, “Bush Challenges Hundreds of Laws: President Cites Powers of His Office,” Boston Globe, April 30, 2006, A1. 73 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson, J., concurring).

3

Presidential Campaigns and Elections Randall E. Adkins

At the most fundamental level the ambition of all candidates for public office is to win. In order to win modern campaigns, political parties follow a time-tested formula that includes fielding the best possible candidates, strong fundraising, a solid campaign organization, and excellent polling. When both political parties follow this formula, campaigns must often break with tradition and seek out innovations that will provide them with a competitive advantage. Candidates and their campaigns at the presidential level are among the most innovative. For example, in 1992 Bill Clinton’s campaign organization created a rapid response “war room” for the purpose of quickly providing the news media with their own “spin” to the criticisms of his opponents. As these entrepreneurial strategies prove successful, they become the norm in the next campaign cycle. The 2008 presidential election cycle turned out to be one where many wellestablished norms persisted, while others were shattered by some very daring strategic choices. For example, in spite of the fact that the news media labeled him a “maverick” decades earlier, the Republican Party nominated a veteran who performed well in a previous presidential election cycle. The Republican incumbent, George W. Bush, had not run for president before he was elected in 2000, but Ronald Reagan, George H. W. Bush, and Bob Dole had all actively campaigned for the presidency in at least one election cycle before becoming the nominee. Further, both presidential nominees chose relatively conventional vice-presidential nominees. Barack Obama chose an old hand from Capitol Hill, Senator Joe Biden, and John McCain nominated a state governor and Christian conservative. On the other hand, a number of daring strategic campaign choices generated excitement in the electorate. For example, Senator John McCain shook up the establishment with his selection of the first woman vice-presidential nominee in the Republican Party, Alaska Governor Sarah Palin. This was not the only norm broken in 2008. It was the first election in which one of the two major party nominations was won by an African American. Interestingly, had Senator Obama not won the nomination, it would still have been the first election in which one of the two major parties nominated a woman, Senator Hillary Clinton. Further, it was also the first election since 1952 in which an incumbent president or vice president was not seeking re-election. In spite of that, George W. Bush’s party was saddled with military conflicts in both Iraq and Afghanistan, along with an economy that

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was headed toward recession with no hope of rebound in sight. Fortunately for Obama, his campaign theme of “change” was malleable enough to apply initially to a change in the direction of the country’s foreign policy and to a change in the direction of the country’s economy when it utterly collapsed at the eleventh hour. Researchers are challenged with identifying changes in the presidential selection process, examining how they affected the outcome of the election, and determining what to expect in the next election cycle. Before discussing the future of presidential elections, however, it is important to examine the current electoral environment and the reform movement that created it.

The Post-reform Era in Presidential Selection The reform movement in the presidential selection process empowered candidates and voters at the expense of party leaders who struggled to reclaim the formidable influence over the process they once held. In the summer of 1920, for example, a small group of very influential Republican Party officials gathered in the Blackstone Hotel in Chicago to plan the presidential nomination of Senator Warren Harding of Ohio. The Associated Press later reported that Harding was chosen in a “smoke-filled” room, meaning a behind-the-scenes meeting of the “bosses” of the Republican Party. This practice was not new and it continued to be the norm for selecting both major-party presidential nominees for the foreseeable future. Just four decades later, however, a junior senator from Massachusetts outmaneuvered many leaders in the Democratic Party and won the nomination over other, more established candidates. In 1960, John F. Kennedy revealed the importance of presidential primaries by entering the West Virginia primary in order to demonstrate that a Catholic could win in a heavily Protestant state, thereby eliminating the argument of his detractors that a Catholic could not win the presidency. Party leaders and convention delegates soon came to view candidates that could not win in the primaries as unelectable in the general election. Kennedy’s success, however, was merely the first step that ushered in seismic changes in the process of selecting presidential nominees in the United States. The modern, candidate-driven era of presidential selection was clearly recognizable by the 1970s.1 Rather than courting party elders behind the scenes at the convention, candidates won party nominations before the convention by sprinting from one end of the country to the other, speaking to small groups of voters over coffee or large groups of voters at rallies, appealing to the voters who stayed at home through television advertisements, and raising vast sums of cash to pay for it all. Three major changes occurred that fostered a candidate-centered environment: changes in rules governing delegate selection to the national nominating conventions, heightened regulation of campaign finance by the federal government, and the growth in the importance of television in the everyday lives of Americans. First, the process of selecting convention delegates drastically changed in the 1970s.2 While the rules for presidential selection were never formally centralized either by the federal government or by the parties, party leaders had always held fairly tight but informal control over the party nominations, by utilizing state party

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conventions to select most national party convention delegates (starting in 1912 a nominal number of delegates were selected through preference primaries). By 1968, however, all of that started to unravel. In March of that year, President Lyndon Johnson declared that he would “not seek nor accept” the Democratic Party’s nomination for president. By June, Senator Robert Kennedy of New York, the frontrunner for the Democratic nomination, was assassinated shortly after declaring victory in the California primary. As a result, the Democrats entered their convention without consensus on a nominee, which led party leaders to choose a candidate who had not formally run in a single primary, Vice President Hubert Humphrey. This did not sit well with the anti-establishment faction of the Democratic Party and demonstrations broke out in downtown Chicago, where the convention was held. In the wake of this turbulent convention, party chairman Senator Fred Harris created a commission, formally known as the Commission on Party Structure and Delegate Selection, to make recommendations to the party about how to reform their selection process for presidential nominees. Headed by Senator George McGovern of South Dakota and Representative Donald Fraser of Minnesota, the commission’s recommendations called for the process for selecting delegates to become more open and inclusive. Most states were able to accommodate the recommendation for openness by switching to primaries and caucuses to select convention delegates. By the early 1980s Democrats and Republicans in almost every state were using primaries or caucuses to select delegates who pledged to support specific candidates for the nomination. The recommendation of inclusiveness led to drastically changing the composition of convention delegates in the Democratic Party from mostly older, white, male, public officeholders or labor union officials, to something that more closely matched the demographics of the party as a whole. As a result of these changes, a decision that was informally centralized in the hands of the party bosses became highly decentralized. The McGovern-Fraser reforms merely opened the door to further decentralization. While both the Democratic National Committee (DNC) and the Republican National Committee (RNC) set rules or guidelines governing delegate selection and participation in the national nominating convention, both parties still have different rules and those may or may not change from cycle to cycle. For example, the Democratic Party encourages states to allocate delegates in proportion to the percentage of the vote a candidate received, but the Republicans encourage state parties to allocate all of the delegates to the candidate that wins a plurality in the state. Further, the state parties set their own rules governing the process of selecting delegates within their state. For example, after decades of holding a presidential primary in May, Democrats in Nebraska decided to offer voters the chance to participate in caucuses in 2008. These caucuses were held in early February and forced the Clinton and Obama campaigns, along with the news media, to turn their attention to the “Cornhusker State” much earlier in the nomination process. To complicate matters even more, when state party leaders over the years have held large majorities in their state legislature, many states codified the procedures preferred by the majority party into state law. This victory was often gained by

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arguing that it created efficiencies within the state, such as a common date for primary elections in both parties for all federal and state offices. The decentralization of the rules governing presidential selection by party and by state offers candidates opportunities to think entrepreneurially and seek some competitive advantage over their opponents. The second change that fostered a candidate-centered environment was that Congress effectively brought the campaign finance system under one law in 1971 with the passage of the Federal Election Campaign Act (FECA).3 This sweeping law and its subsequent amendments limited campaign contributions from individuals and political action committees, created a public finance option for both the primaries and the general election, and established a government agency responsible for disclosure and enforcement called the Federal Election Commission (FEC). As a result, individuals were limited to a $1,000 campaign contribution and political action committees were limited to $5,000. Presidential candidates could no longer rely on the party organization to finance their campaigns (parties were also limited in their contributions to candidates), but instead were forced to devote a significant degree of their time and resources tapping into their own personal and political networks of support to fund their presidential aspirations. Further, a public finance option was created to level the playing field between candidates. Candidates in the primaries received a match from the government for the first $250 of any contribution they received from an individual, as long as they agreed to abide by state-by-state spending caps. And in order to level the playing field during the general election, each of the major parties received a grant from the government (as long as they pledged not to raise additional funds).4 Figure 3.1 shows how much candidates have been provided in matching funds during the primaries as well as public funds during the general election dating back to 1976. Finally, television became an important medium for reaching voters.5 The first campaign advertisements for president were run during the EisenhowerStevenson matchups of the 1950s and the first televised debates between the majorparty candidates, Kennedy and Nixon, were held in 1960. While Lyndon Johnson and Richard Nixon embraced television advertisements as a means for communicating their campaign message, neither was eager to push for continuation of the presidential debates. In his acceptance speech at the Republican Convention in 1976, incumbent President Gerald Ford challenged his Democratic opponent, Jimmy Carter, to debate. Since then, presidential debates have been a major part of the fall campaign. Eventually, the League of Women Voters was displaced as the host of the presidential debates in favor of the Commission on Presidential Debates, a bipartisan entity formed by the Democratic and Republican Party committees to maintain a tighter control over the debate timing and format. In order to be competitive in the modern, candidate-centered era, candidates were forced to become entrepreneurs. They started campaigning earlier, raised their own campaign funds, constructed sophisticated campaign organizations in order to win primaries and caucuses, and polled the public in order to develop messages that resonated with voters (yet differentiated themselves from the rest

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Figure 3.1 Public Funding in Presidential Elections 1976–2008 (in millions) Sources: “Table 2-5: Public Funding of Presidential Elections, 1976–2008 (millions).” CQ Press Electronic Library, Vital Statistics on American Politics Online Edition, vsap09_tab2-5; originally published in Vital Statistics on American Politics 2009–2010, eds. Harold W. Stanley and Richard G. Niemi (Washington: CQ Press, 2009). http://library.cqpress.com.leo.lib.unomaha.edu/vsap/vsap09_tab2-5 (accessed July 9, 2010). http://library.cqpress.com.leo.lib.unomaha.edu/vsap/document.php?id=vsap09_tab25&type=toc&num=6 (accessed June 15, 2010). Notes: In the primaries, eligible candidates may receive up to $250 in public funds to match each individual contribution. If candidates accept public funds in the primaries, they are limited in spending to $10 million plus a cost-of-living adjustment over the base year of 1974. The Democratic and Republican candidates that win the party nominations are eligible to receive grants to cover all expenses in the general election. If the Democratic and Republican nominees accept these public funds, then they are limited to spending $20 million plus a cost of living adjustment over the base year of 1974 and must agree not to raise additional private contributions.

of the field of candidates). The only candidates nominated were those candidates that recognized the changes in the process and adapted their campaign strategy to accommodate those changes. Those that continued to pursue the party nomination by courting party elders were not nominated. Elaine Kamarck writes of the 1976 Democratic nominee, Jimmy Carter, that he simply “got it.” Carter, the one-term former governor of Georgia, understood the changes to the presidential nomination process that seasoned veterans like Senator Lloyd Bentsen, former party chair and Senator Fred Harris, former Vice President Hubert Humphrey, Senator Ted Kennedy, and Alabama Governor George Wallace simply did not grasp.6 The change in the process was historic. By 1976 candidates still needed to court party elders, but more importantly, they needed to court voters. In order to convince party elders of their electability, they needed to demonstrate that they could sell themselves to voters. Such extraordinary change by its very nature should be contentious and the reforms that created the modern era of presidential selection certainly led to a proliferation of controversies. Most of the controversies revolved around how presidential nominees were chosen, others involved the

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choice between the two party nominees, and still others crossed the span of the primaries and the general election. One of the first controversies to arise over presidential nominations was the fear of many party leaders that the new process would nominate more ideological—and subsequently less-electable—candidates, like Democratic nominee McGovern in 1972. This fear was seemingly well founded. Voter turnout in presidential primaries is much smaller than during the general election, and stronger partisans are more likely than weaker partisans to vote in primaries. This understandably produces a formula for picking more ideological or partisan nominees. Early on, a number of scholars examined this phenomenon and found that the moderate candidates would lose to the more ideological candidates as the field of contenders narrowed and the weaker candidates dropped out of the race.7 By 1980, the Democrats were already becoming more concerned about the issue of electability. That year, incumbent President Carter defeated Senator Ted Kennedy for the Democratic Party’s nomination, but Kennedy won impressive victories in California, New York, and Pennsylvania. These victories led Kennedy to continue to challenge Carter at the convention, hoping to persuade a sufficient number of convention delegates to switch their vote. Even though his presidential approval rating was weak, the more centrist Carter prevailed with the delegates. Over the next two years, the Democrats formed a commission to explore this and other issues. Led by North Carolina Governor James Hunt, the commission’s principal recommendation was that the Democratic Party create a new class of delegates at the convention, called superdelegates. Superdelegates were party officials or party officeholders from each state who would be expected to tip the balance to the more electable candidate in the event that two or more candidates ended up at the convention without a majority of delegates. In support of this, Hunt wrote, “We must also give our convention more flexibility to respond to changing circumstances and, in cases where the voters’ mandate is less than clear, to make a reasoned choice.”8 While superdelegates were supported in principle by many factions within the Democratic Party, they were also fiercely opposed by others who feared that the positions would go to primarily white, male officeholders. In spite of these fears, the percentage of female Democratic Convention delegates remained unchanged: 49 percent between 1980 and 1984. The percentages of African American and Latino Democratic Convention delegates grew by 3 percent and 1 percent, respectively. By 2008, the percentages of African American and Latino convention delegates were 23 and 11, respectively.9 In spite of efforts to give party leaders the power to determine the nominee, superdelegates were of little consequence until the 2008 election. As the primaries became more important in delegate selection, another controversy that arose was the privilege that Iowa and New Hampshire had traditionally held as the first in the nation. In the modern era the two major parties have either formally or informally allowed Iowa and New Hampshire to hold the first caucuses and primary, respectively. Due to this, each state has received many different benefits that are inconsistent with their relatively small size. According to William G. Mayer and Andrew E. Busch, these include greater attention from the

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candidates and the news media, disproportionate influence over the nomination outcomes, and other economic and policy benefits that are more difficult to measure.10 Given that Iowa and New Hampshire are first, candidates can spend weeks or even months campaigning there, employing extensive “ground war” rather than “air war” campaign strategies. For example, in the 2004 primary season the Democratic candidates altogether visited Iowa 860 times and New Hampshire 800 times. On the other hand, the Democratic candidates visited Montana and New Jersey, the final two states to hold primaries (on June 8), a grand total of six times.11 Of course, the news media arrive in Iowa and New Hampshire soon after the candidates, weeks and even months early, to cover the horserace. Clearly, Iowa and New Hampshire have played a major role in determining presidential nominations in the post-reform era. Even though those states have not always chosen the candidate that won the nomination, the boost that candidates received from winning Iowa and New Hampshire or the other early contests has been sufficient to propel a candidate from relative obscurity to national prominence. For example, in 1984 a relatively unknown senator from Colorado, Gary Hart, defeated former Vice President Walter Mondale in the New Hampshire primary with 37.3 percent of the vote. This victory catapulted Hart to co-frontrunner status and made him a serious contender in the remaining primaries and caucuses. Further, the impact of strong early performance in later contests is pretty well documented in the scholarship on the topic.12 Still, when controlling for other factors, such as campaign spending and performance in the preference polls taken before the primaries, numerous studies have confirmed that a candidate’s performance in the New Hampshire primary affects who becomes the eventual nominee.13 On the other hand, other studies found that the Iowa caucuses were not that influential when controlling for the outcome of the New Hampshire primary.14 A more recent study, however, which examines a broader span of time, found that Iowa has influenced the outcome of the party nominations.15 Unfortunately, this influence was in some instances filtered out, due to the fact that the New Hampshire primary followed so closely on the heels of the Iowa caucuses. While many eventual nominees who were not incumbent presidents failed to win either Iowa or New Hampshire, it has proven virtually impossible to win the nomination in the post-reform era without at least performing well in one or both of the states. On the Democratic side: Jimmy Carter in 1976, Walter Mondale in 1984, Al Gore in 2000, John Kerry in 2004, and Barack Obama in 2008 all won the Iowa caucuses; the New Hampshire primary was won by Jimmy Carter in 1976, Michael Dukakis in 1988, Al Gore in 2000, and John Kerry in 2004. On the Republican side: only Bob Dole in 1996 and George W. Bush in 2000 won the Iowa caucuses; the New Hampshire primary was won by Ronald Reagan in 1980, George H. W. Bush in 1988, and John McCain in 2008. The only time a candidate failed to win either the Iowa caucuses or the New Hampshire primary since the reform of the 1970s was in 1992, when Democratic Governor Bill Clinton of Arkansas came in second in the Iowa caucuses to Iowa’s favorite son, Senator Tom Harkin, and in New Hampshire to former Senator Paul Tsongas from the neighboring state of Massachusetts.

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Candidates who fail to perform well in either state, however, typically drop out of the race very quickly. Barbara Norrander refers to this as the “initial winnowing.” In other words, candidates drop out of the race after the early primaries due to poor fundraising, inability to connect with voters or party leaders, or simply poor performance in the primaries. Winnowing continues until eventually only one candidate is left in the race, even though he or she may not have yet accumulated a majority of the delegates to the convention.16 Over the years, the preeminent position of Iowa and New Hampshire in the delegate selection calendar led many states that held their primaries in April, May, and June to move their primaries up to February and March. This phenomenon came to be known as “frontloading” and has turned out to be highly contentious.17 Frontloading started because public officials and voters in states holding primaries in April, May, and June were frustrated because most of the candidates were already winnowed from the race.18 Rather than getting to choose from a half dozen or more candidates, voters in states holding later primaries were typically presented with a choice between the two candidates remaining (of which only one was a serious contender) or merely the candidate that had already mathematically wrapped up the nomination. Thus, the attrition of candidates turned out to be controversial because the effect was to structure the decision of states holding later primaries. The solution was equally contentious. As states moved their primaries forward in the calendar, so did Iowa and New Hampshire in order to remain first. Overall, the effect was to compress the primary calendar into the month of February and early March, but as almost every state has moved forward in the calendar, that time frame has changed. In 2008 the Iowa caucuses were held on January 3. Figure 3.2

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2008

Democrats, 8 weeks Republicans, 8 weeks

Figure 3.2 Cumulative Percentage of Delegates Selected by End of Fourth Week and End of Eighth Week During the Primary Season by Party, 1972–2008 Sources: 1972–2000: William G. Mayer and Andrew E. Busch, The Front-loading Problem in Presidential Nominations, (Washington, DC: Brookings Institution, 2004), 6–7; 2004: The Green Papers, “2004 Chronological Cumulative Allocation of Delegates,” http://www.thegreenpapers.com/P04/ccad. phtml (accessed June 15, 2010); 2008: The Green Papers, “2008 Weekly Delegate Distribution and Availability,” http://www.thegreenpapers.com/P08/wddaa.phtml (accessed June 15, 2010).

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shows the change in the cumulative percentage of delegates selected within four and eight weeks of the New Hampshire primary. Between 1988 and 1996 the percentage of delegates chosen to attend the national nominating conventions rose to approximately one half the total needed in each party. This was primarily due to a change in the presidential nomination calendar that occurred in 1988, when the states of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, and Texas agreed to hold their primaries on March 8. This “Super Tuesday” effectively created a Southern regional primary, intended to allow the South to rally behind a more moderate-to-conservative Democratic candidate who would better reflect the interests of the Southern states.19 Ironically, Michael Dukakis, Al Gore, and Jesse Jackson split the vote. Much has changed since then, including other states moving their primaries forward, alone or with partners in their region.20 In spite of the fluctuation seen in the first four weeks of the primary calendar over the past three decades, the cumulative percentage of delegates selected to the national nominating conventions during this time period has steadily grown, from about 30 percent in both parties in 1972 to approximately 70 percent in both parties in 2008. This strategy has paid off for the states that moved up in the calendar. Not only are states closest in the calendar to New Hampshire more likely to be visited by candidates, but in 2000 and 2004 states that went early in the process were more likely to see campaign advertisements than the delegate-rich states a few weeks later.21 Other than the tendency to lock in the frontrunner for the nomination quickly, Mayer and Busch found that the shortened primary calendar had negative consequences for the quality of campaign organization and communication and the way in which voters learn and make decisions.22 Related to the criticism that Iowa and New Hampshire are permitted to hold their caucuses and primary first is the question of how representative each really is, and whether states that go first should be more reflective of the country as a whole. According to the U.S. Census Bureau, in 2000 Iowa was 94.2 percent white and had a median household income of just over $49,000. New Hampshire was 95.5 percent white with a median household income of just over $63,000. The overall United States, however, was only 79.8 percent white and had a median household income of less than $42,000. More recently, however, Michael S. Lewis-Beck and Peverill Squire provided empirical evidence to suggest that among a more extensive state-level battery of socioeconomic and political/policy measures, Iowa is much more representative than pundits claim. In fact, they find that by comparing all 50 states by more than 50 different factors, Iowa turned out to be ranked number 12 overall.23 More recently, the presidential selection process has come under greater scrutiny because fundraising and spending in campaigns have grown exponentially. Figure 3.3 plots the growth of each since the passage of the FECA. Even worse, the public funding system created in the 1970s has been on the brink of collapse for some time. The seeds of this collapse were most evident as early as the 1996 presidential nomination season. That year Republican Bob Dole emerged from a bruising primary campaign as the nominee, but with very little cash on hand

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$2,000 $1,800 $1,600 $1,400 $1,200 $1,000 $800 $600 $400 $200 $0 1976

1980

1984

1988

1992

Total Contributions

1996

2000

2004

2008

Total Spending

Figure 3.3 Total Contributions and Spending by Presidential Candidates, 1976–2008 (in millions) Source: Numbers are based on summary reports filed January 31, 2009. OpenSecrets.org, “Presidential Fundraising and Spending, 1976–2008” http://www.opensecrets.org/pres08/totals.php?cycle=2008 (accessed June 15, 2010). Note: Numbers are not adjusted for inflation.

to carry him through the interregnum from the month of March to the national nominating convention later in the summer when he would receive the public funding for the general election.24 Remember that for candidates accepting matching funds from the government during the primaries, state spending limits are also imposed. In 1996, these limits totaled $37.1 million, plus additional sources that could be raised for legal and accounting expenses. Dole needed all of that money just to secure the nomination. He emerged with the nomination in early March and a hefty campaign debt that was virtually impossible to retire because he was bumping up against the ceiling of the total state spending limits. Incumbent President Bill Clinton, on the other hand, had no opponent for the Democratic nomination and had spent very little during the frontloaded primary season. Thus, when Dole won the nomination, Clinton turned his campaign’s attention during the interregnum to his Republican opponent and Dole was virtually powerless to respond. Fueled, in part, by Dole’s campaign finance conundrum, the Democratic and Republican parties were looking for creative ways to spend so-called “soft money” in 1996.25 Soft money refers to funds raised by political parties to be used exclusively for “party-building” activities (e.g. get-out-the-vote). The provision to raise soft money was included in an amendment to the FECA in 1979 intended to reverse the dramatic damage done to the fundraising support of the parties by the 1974 amendment, which limited campaign contributions to, and from, parties. Because these funds are not subject to contribution limits, they can be raised in large sums from fewer individuals. That change, coupled with administrative rulings by the FEC regarding how soft money could be spent and how to classify campaign advertisements

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(electioneering or issue-based), created an entirely new avenue of campaign fundraising and spending for the parties that existed in loose coordination with the presidential campaigns. Total soft money spending by the Democratic and Republican parties combined grew, from $88.1 million in 1992 to $243.6 million in 1996 to $456.9 million in 2000, before the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA) that banned the national parties from raising or spending soft money on federal elections. The BCRA also clearly defined the difference between issue and electioneering advertisements, which for the time being made it more difficult for the parties to run campaign advertisements that looked and sounded like an electioneering ad (even if they did not include the magic words “vote for” or “vote against”). In 2000, the public funding system continued to collapse as the presidential campaign of Texas Governor George W. Bush realized that they could raise more than the $40.5 million total state-by-state limits and decided to forego federal matching funds. Thus, the spending limits did not apply to them. By July 31, 2000, a few weeks before the Republican Convention, the Bush campaign had raised $94.5 million. This amount was more than double what was raised by his closest Republican rival, Senator John McCain. McCain raised $45 million, of which $14.5 million came in the form of federal matching funds. The Democratic nominee, Vice President Al Gore, raised a similar amount. Of his total $49.2 million, the portion in matching funds was $15.3 million.26 Needless to say, the Bush campaign emerged with the nomination and a hefty sum of cash in its checking account to spend during the interregnum. This was a mistake that a Democratic nominee would not make again. In fact, John Kerry almost matched George W. Bush dollar-for-dollar in 2004. Kerry raised $234.6 million in the primaries and Bush raised $269.9 million. The end result was that the total in matching funds provided by the federal government in 2004 was only $28.4 million to eight candidates. This represents the lowest total of matching funds provided to candidates since 1976.27 Of course, there were other controversies that arose out of the reform movement of the 1970s, but in typical fashion the parties quickly adapted, engaged, and re-emerged in control. For example, when the League of Women Voters, who sponsored the 1976, 1980, and 1984 presidential debates, articulated a desire to include third-party candidates in the presidential debates, the Democrats and Republicans proposed the creation of the bipartisan Commission on Presidential Debates.28 This and other similar potential landmines were quickly defused by the parties.

An Electoral Environment in Transition The setting in which both parties’ candidates operated in 2008 was similar to recent post-reform election cycles. Given the competitiveness of recent elections, however, the presidential candidates and their campaigns, the national parties, and the state parties were actively seeking alternative strategies to the previously established norms. Thus, 2008 represents an electoral environment in transition for many reasons.

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First, while the frontloading of the primary calendar continued, in some respects it actually grew worse. As in recent election cycles, a super-majority of delegates was chosen between the fourth and eighth week following the New Hampshire primary, but in 2008 Iowa moved its caucuses to January 3 and New Hampshire moved its primary to January 8. To put this in perspective, Iowa held its caucuses on January 19 and New Hampshire held its primary on January 27 in 2004. Iowa and New Hampshire were forced to take such extreme measures to protect their traditional first-in-the-nation status when the states of Florida and Michigan moved their primaries forward of the date established by the Democratic Party for the start of the primary season. After continued pressure from party leaders in a number of states resentful of the exception traditionally allowed Iowa and New Hampshire, the Democratic Party formed the Commission on Presidential Nomination Timing and Scheduling to study the issue, headed by Representative David Price of North Carolina and former Labor Secretary Alexis Herman.29 While the Price-Herman commission recommended continuing to allow Iowa and New Hampshire to go first, one of the more important recommendations was to permit Nevada to hold its caucuses and South Carolina to hold its primary early, before the “window” for the primary season officially opened. Frustrated by this decision, the states of Florida and Michigan decided to move their primary dates and the Democratic Party responded by stripping both states of their delegates to the national nominating convention (one half of the voting delegates were eventually restored). Overall, the result of these events culminated in a primary calendar that was paced very similarly to recent election cycles, but started immediately following the holiday season. Second, entering the caucuses and primaries in every state was absolutely necessary in 2008. Since 1992 the length of presidential campaigns following the New Hampshire primary grew quite short as candidates were winnowed from the field relatively early due to poor performance in the frontloaded states. For the first time since 1988, however, a campaign for a party’s presidential nomination lasted from the Iowa caucuses all the way to the party convention. It is important to recognize that even in the lengthy 1988 Democratic nomination contest, Michael Dukakis wrapped up the nomination relatively handily. That year, Jesse Jackson continued to run for president in order to bring attention to the issues that he believed were important for the Democratic Party to address at the convention and possibly to earn a spot as vice president on the ticket. Traditionally, the states holding primaries later in the calendar served the function of allowing the frontrunner to “mop up” the remaining support necessary to enter the convention and even begin competing against the opposing candidate in the fall campaign.30 This long interregnum period is clearly a product of frontloading and has dramatically increased the need for a well-financed campaign.31 For the Democrats in 2008, there was no time to mop up the mess of a frontloaded schedule because the remaining primaries served as a continuation of the battleground phase of the campaign. In spite of troubles in his campaign in the summer of 2007, John McCain wrapped up the Republican nomination rather quickly once the primary season

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started. Hillary Clinton, on the other hand, led early and comfortably, fell behind once the primary season began, and then fought from behind with a campaign reminiscent of Ted Kennedy’s challenge to Jimmy Carter in 1980. The big difference between McCain and Clinton was that throughout 2007 she was the quintessential frontrunner, leading her closest rival, Barack Obama, in fundraising, endorsements from public officials, and the preference polls. In the latter months of 2007, however, Obama quietly chiseled away at her lead nationally, and eventually defeated her by 9 percentage points in the Iowa caucuses. Clinton quickly licked her wounds and headed to the Northeast, narrowly defeating Obama by 2.6 percent in the New Hampshire primary. She followed her win there with a victory in the Nevada caucuses, but was handily defeated by Obama in the South Carolina primary. On Super Tuesday, which was held February 5, Clinton won eight of fifteen primaries (including delegate-rich California). On the other hand, Obama won the remaining seven primaries and six of the seven states holding caucuses. At that point the race was dead even, and from then until the convention it was a horserace that Obama always led by just a nose. Tables 3.1 and 3.2 show the results of the caucuses and primaries, by state, for both parties in 2008. In the end Clinton won the battle over voters, netting approximately 200,000 more votes than Obama across the country. In spite of this, she lost the war. The key to Obama’s ability to pull even with Clinton in early February was the fact that his campaign made it a priority to organize in states holding caucuses while Clinton’s campaign did not.32 Clinton won just barely one half of the delegates selected through primaries, but Obama won two thirds of the 494 convention delegates selected by states holding caucuses.33 Unfortunately, most studies modeling the presidential nomination process focus exclusively on primaries, but research that contrasts the role of primaries versus caucuses is useful in understanding what happened in 2008 in several ways.34 First, more ideological candidates tend to do better in caucuses than primaries. This is due in part to the ideology of the candidates, and in part to the ideology of participants in caucuses who tend to be stronger partisans. While Clinton and Obama had very similar voting records when serving in the U.S. Senate, Obama was not yet a senator at the time of the 2002 vote to authorize President Bush to use force in Iraq. This vote later turned out to be the early cornerstone of Obama’s campaign for “change” and, for many activists in the Democratic Party, Clinton’s Achilles heel. Second, in the past the “also-ran” candidates more often than not found success in gathering strong support in states holding primaries, but were often hampered in their efforts to win over activists in the caucus states. Clinton’s inability to fully engage by winning caucus states is completely consistent with these findings. Apparently, while Clinton was not prepared for a long, drawn-out contest, Obama’s campaign was prepared to fight for every last delegate as part of a 50-state strategy. Third, for the first time since their inception in 1982, the superdelegates played a pivotal role in deciding who won the Democratic Party’s nomination. There were 4,234 total delegates to the Democratic National Convention and of that number

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Table 3.1 Results of Democratic and Republican Caucuses, 2008 Democrats

Iowa Wyominga Nevada Hawaiib Maine Alaska Colorado Idaho Kansas Minnesota Montana New Mexico North Dakota West Virginiac Kansas Nebraska Washington Maine Hawaii Texas Wyoming

Republicans

Date

Clinton

Obama

Huckabee

McCain

Paul

Romney

Jan. 3 Jan. 5 Jan. 19 Jan. 25–Feb. 7 Feb. 1–3 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 9 Feb. 9 Feb. 9 Feb. 10 Feb. 19 Mar. 4 Mar. 8

29

38

51

45

25 32 17 26 32

75 66 80 74 66

34 — 8 — 6 22 13

13 — 13 — 21 16 18

10 — 13 — 18 17 8

25 — 51 — 52 44 60

20 15

22 22

16 25

41 38

49 37

48 61

20 33 60

23 16 24

21 10 11

36 41 3

32 31 40 24 44 38

68 68 60 76 56 61

23

25

22

16

Source: “Table 1–26 Presidential Caucus Results, 2008.” CQ Press Electronic Library, Vital Statistics on American Politics Online Edition, vsap09_tab1-26; originally published in Vital Statistics on American Politics 2009–2010, edited by Harold W. Stanley and Richard G. Niemi (Washington: CQ Press, 2009). http://library.cqpress.com.leo.lib.unomaha.edu/vsap/vsap09_tab1-26 (accessed June 15, 2010). Notes: “—” indicates information not available. Results are based on final or nearly final tallies from the state parties, and reflect either a direct vote for the candidates or delegates elected to the next stage of the process. a The contest was for national convention delegates. b The contest was for state convention delegates. c The percentages reflect the result on the first ballot at the state convention, as reported by the Charleston Gazette. Mike Huckabee defeated Mitt Romney on the second ballot, 52 percent to 48 percent, to win all eighteen delegates at stake.

about 20 percent, or 825, were superdelegates. Without the votes of superdelegates, neither Clinton nor Obama had a majority of the convention delegates. The Florida and Michigan delegations were at half-strength after the Democratic Party refused to seat delegates from states that moved their primary up in the calendar (prior to the opening of the “window” in which the party authorized states to hold primaries and caucuses). This placed the number needed to win the nomination at 2,118. Without the superdelegates, neither candidate could claim a victory because neither had a majority of the delegates. Obama won 1,763 delegates through the caucuses and primaries, and Clinton won 1,640. It was up to the superdelegates to determine who would be the nominee. Ultimately, most of them decided that Obama was more electable than Clinton, providing him the majority he needed to win the convention by a margin of 438

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Table 3.2 Democratic and Republican Primaries, 2008

New Hampshire Michigan South Carolina Florida Alabama Arizona Arkansas California Connecticut Delaware Georgia Illinois Massachusetts Missouri New Jersey New York Oklahoma Tennessee Utah Louisiana District of Columbia Maryland Virginia Washington Wisconsin Ohio Rhode Island Texas Vermont Mississippi Pennsylvania Indiana North Carolina Nebraska West Virginia Kentucky Oregon Idaho Puerto Rico Montana South Dakota

Date

Democrats Clinton Obama

Republicans Huckabee McCain Paul

Romney

Jan. 8 Jan. 15 Jan. 26 Jan. 29 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 5 Feb. 9 Feb. 12 Feb. 12 Feb. 12 Feb. 19 Feb. 19 Mar. 4 Mar. 4 Mar. 4 Mar. 4 Mar. 11 Apr. 22 May 6 May 6 May 13 May 13 May 20 May 20 May 27 Jun. 1 Jun. 3 Jun. 3

39 55 26 50 42 50 70 51 47 42 31 33 56 48 54 57 55 54 39 36 24 36 35 46 41 53 58 51 39 37 55 51 42 47 67 65 41 38 68 41 55

11 16 30 13 41 9 60 12 7 15 34 16 4 32 8 11 33 34 1 43 16 29 41 24 37 31 22 38 14 13 11 10 12 — 10 8 — — — — 7

32 39 15 31 18 35 14 35 33 33 30 29 51 29 28 28 25 24 89 6 6 7 4 16 2 3 4 2 5 2 — 5 — — 4 5 — — — — 3

36 — 55 33 56 42 26 43 51 53 66 65 41 49 44 40 31 40 57 57 75 61 64 51 58 45 40 47 59 61 45 49 56 49 26 30 59 56 32 56 45

37 30 33 36 37 47 20 42 52 45 32 47 41 33 55 52 37 32 5 42 68 55 50 49 55 60 65 51 71 79 73 78 74 87 76 72 81 70 76 86 70

8 6 4 3 3 4 5 4 4 4 3 5 3 4 5 6 3 6 3 5 8 6 4 8 5 5 7 5 7 4 16 8 7 13 5 7 15 24 21 14 17

Source: “Table 1–25 Presidential Primary Returns, 2008.” CQ Press Electronic Library, Vital Statistics on American Politics Online Edition, vsap09_tab1-25; originally published in Vital Statistics on American Politics 2009–2010, edited by Harold W. Stanley and Richard G. Niemi (Washington: CQ Press, 2009). http://library.cqpress.com.leo.lib.unomaha.edu/vsap/vsap09_tab1-25 (accessed June 15, 2010). Notes: “—” indicates that the candidate was not listed on the ballot. Michigan and Florida set primary dates that were not approved by the Democratic National Committee. As a result, some candidates chose not to campaign in either or both states. One half of the delegations from these contests were eventually seated.

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to 256.35 Given that the race was close at the end of the primary season, the news media paid very close attention to the announcements of superdelegates. Because superdelegates had been of little importance in the past, individuals serving typically used their position to provide an endorsement to one of the many candidates at the outset of the primary season. As an example of the importance of superdelegate endorsement, Representative John Lewis, a civil rights icon, announced at the end of February that he would cast his vote as a superdelegate for Obama. This was an important cue for many Democrats because Lewis had given his early endorsement to Clinton.36 Fourth, once the reforms made caucuses and primaries the means of nominating candidates for office, candidate endorsements became important political cues. The effects of newspaper endorsements appear to be minimal,37 but the effects of endorsements by political organizations encouraged many members of the group to support the candidate endorsed.38 More recent studies show that who leads in the polls reported by the news media, and endorsements by public officials, clearly matter in the minds of voters during the primaries, suggesting that parties have re-emerged to exercise their influence over the presidential nomination process.39 Recent tales from the 2004 and 2008 election cycles, however, reveal that there are additional aspects of support that also need serious consideration. For example, former Vermont Governor Howard Dean’s rise from obscurity during the summer of 2007 to Democratic frontrunner was in large part due to the ability of Democratic activists to tap into his campaign by making campaign contributions and social networking.40 In 2008 both frontrunner campaigns, like that of Barack Obama, and advocacy campaigns, like that of Representative Ron Paul, made effective use of the internet to raise funds and to communicate and construct elaborate networks of activists. Even further, endorsements by celebrities (even Oprah Winfrey or Dr. James Dobson) can matter in important ways, too.41 Fifth, the crisis in campaign finance grew worse in 2008.42 Both campaign fundraising and spending almost doubled, rising to $1.749 billion and $1.325 billion, respectively. This occurred in spite of the fact that less public money was infused into the system than any year since 1976. While both Clinton and Obama determined very early on that they would not participate in the public matching fund system, McCain decided to initially use the system as a form of life-preserver to infuse cash into his campaign during difficult times. Once he won the nomination, he was forced to abandon public financing in order to keep up with the spending of his Democratic rivals as they continued to battle through his interregnum.43 Ironically, McCain was the sponsor of the BCRA, which governs the public funding system. Not only did the public funding system completely break down in 2008, but it continued to be an albatross on the back of McCain as the general election drew near. Under the BCRA, presidential candidates were allowed by law to raise up to $2,300 from each individual during each election cycle, the primaries, and the general election. If the major-party candidate accepted the public funding in the general election, $84.1 million in 2008, he or she would not be permitted to raise additional sources of revenue. Citing anxiety regarding the advantage that conservative groups and the RNC would have over similar Democratic organizations,

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Obama announced on June 19 that he would forego public funding altogether. Thus, not only could Obama continue to court new donors, but he could also go back to his donors from the primaries and ask for additional revenue. September turned out to be Obama’s best fundraising month, netting more than $153.1 million.44 This amount simply dwarfed what the McCain campaign controlled. It allowed Obama to be competitive in states where Democrats had never spent money before. For example, Obama spent $25.4 million on 35,461 advertisements in Virginia. McCain and the RNC together spent only $12.5 million on 20,049 advertisements.45 Besides advertising expenditures, the Obama campaign implemented a broadly based plan to increase Democratic voter registration and turnout, which was expected to have a trickle-down effect to other Democratic candidates for federal and state office. Finally, campaign strategy is clearly important and nowhere was it more important than on the Electoral College map. In September the presidential race looked close and McCain actually led the polls for a brief period of time following the Republican National Convention. On September 15, Lehman Brothers and American International Group (AIG) filed for bankruptcy protection. A day later McCain peaked at 46.3 percent (1.3 percent ahead of Obama) and continued to struggle in the polls thereafter.46 Once the financial meltdown occurred, the Electoral College strategies of each candidate changed. With his limited cash on hand in his campaign, McCain focused on defending the 286 Electoral College votes won by George W. Bush in 2004. Obama’s well-funded campaign, however, went on the offense. In the end, Obama’s campaign peeled away 113 Electoral College votes from the Republicans representing states won by George W. Bush in 2004. These states included Colorado, Florida, Indiana, Iowa, Nevada, New Mexico, North Carolina, Ohio, Virginia, and one vote representing the Second Congressional District of Nebraska. It is no surprise that Obama competed for and won the states of Florida and Ohio. Along with Pennsylvania, these states are considered the most critical swing states on the map. Given that Obama did well with Latino voters (two thirds of Latinos supported Obama overall), it is also no surprise that he won Colorado, Nevada, and New Mexico, where Latinos made up as much as 15 percent of the voting population (on average Latinos made up only 9 percent of U.S. voters in 2008).47 It also should not even be considered a surprise that Obama could wrestle away Indiana and Iowa from the Republicans. Obama ran spirited campaigns in both states, which happen to neighbor his home state of Illinois. The real surprises were in North Carolina and Virginia. North Carolina had not voted for a Democrat since former Georgia Governor Jimmy Carter won the White House in 1976. Virginia had not voted for a Democrat since incumbent President Lyndon Johnson in 1964. These states, however, have in recent years seen an influx of Democrats into their urban centers. A final surprise came in Obama’s win of the Second Congressional District in Nebraska. Nebraska uses a unique plan for allocating presidential electors, whereby the presidential candidate that wins a plurality within a congressional district wins the vote representing that district. While it is not surprising that Obama could win a district that has a relatively strong Democratic presence in a Republican state, it is surprising that he

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devoted the resources necessary to open three campaign offices in the district to do so. It suggests that his campaign was so flush with cash on hand that they could afford the risk of gambling on something with such a low payoff. While Obama carried the district, the Democratic congressional challenger in the district failed to unseat the incumbent Republican in his second such attempt. Table 3.3 Electoral College Vote by State, 2004 and 2008 Won by George W. Bush in 2004

Won by John Kerry in 2004

Won by Barack Obama in 2008

Colorado Florida Indiana Iowa Nebraska (2nd District) Nevada New Mexico North Carolina Ohio Virginia

California Connecticut Delaware District of Columbia Hawaii Illinois Maine Maryland Massachusetts Michigan Minnesota New Hampshire New Jersey New York Oregon Pennsylvania Rhode Island Vermont Washington Wisconsin

Won by John McCain in 2008

Alabama Arizona Alaska Arkansas Georgia Idaho Kansas Kentucky Louisiana Mississippi Missouri Montana Nebraska (1st and 3rd Districts) North Dakota Oklahoma South Carolina South Dakota Tennessee Texas Utah West Virginia Wyoming

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Conclusion In spite of all of the discussion of “change” in 2008, the election came down to essentially the same proven formula for success in campaigns and elections: the best candidate the party could field, strong fundraising, a solid campaign organization, good polling, and a number of innovative strategies for performing each better than the opposition. Moving forward, it is important to realize how the 2008 cycle impacts this formula, even if that impact will be marginal transition rather than the seismic earthquake we saw in the presidential selection process in the 1970s. First, all signs are that the presidential nomination process will continue to be frontloaded and that Iowa and New Hampshire will continue to play an important role. Second, the campaign finance system created under FECA is clearly broken. Money will be even more important in future elections as additional candidates opt out of the public funding system, and as outside organizations find a larger voice in the presidential selection process due to recent Supreme Court rulings overturning provisions of the BCRA. Third, Barack Obama’s campaign demonstrated that the Electoral College map is much more competitive than imagined. Republicans will be working to win back those traditionally “red” states they lost in 2008 and searching feverishly for new states to steal from the Democratic column. Finally, it is clear that party leaders and party activists will continue to play an important role in the presidential selection process. With additional cultivation of the internet as a campaign tool, a new breed of activism among political partisans will probably offer the most potential and foster the most cutting-edge innovations in presidential campaigns and elections.

Notes 1 See John Aldrich, Before the Convention: Strategies and Choices in Presidential Nominations (Chicago: University of Chicago, 1980). 2 See Randall E. Adkins, The Evolution of Political Parties, Campaigns, and Elections: Landmark Documents, 1787–2008 (Washington, DC: CQ Press, 2008). 3 Ibid. 4 http://www.fec.gov/pages/brochures/pubfund.shtml#General (accessed July 1, 2010). 5 See Adkins. 6 See Elaine Kamarck, Primary Politics: How Presidential Candidates Have Shaped the Modern Nominating System (Washington, DC: Brookings Institution Press, 2009). 7 See Steven J. Brams, The Presidential Election Game (New Haven, CT: Yale University Press, 1978). 8 Elaine Kamarck, “A History of ‘Super-Delegates’ in the Democratic Party,” February 14, 2008, http://belfercenter.ksg.harvard.edu/publication/18072/history_of_superdelegates_in_the_democratic_party.html (accessed July 1, 2010). 9 “Table 1–28 Profile of National Convention Delegates, 1968–2008 (percent),” CQ Press Electronic Library, Vital Statistics on American Politics Online Edition, vsap09_ tab1-28; originally published in Vital Statistics on American Politics 2009–2010, eds. Harold W. Stanley and Richard G. Niemi (Washington, DC: CQ Press, 2009). http://library. cqpress.com.leo.lib.unomaha.edu/vsap/vsap09_tab1-28 (accessed July 1, 2010). 10 William G. Mayer and Andrew E. Busch, The Front-Loading Problem in Presidential Nominations (Washington, DC: Brookings Institution Press, 2004).

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11 Travis N. Ridout and Brandon Rottinghaus, “The Importance of Being Early: Presidential Primary Front-Loading and the Impact of the Proposed Western Regional Primary,” PS: Political Science & Politics 40 (1, 2008):125. 12 See Larry M. Bartels, Presidential Primaries and the Dynamics of Public Choice (Princeton, NJ: Princeton University, 1988). 13 See Randall E. Adkins and Andrew J. Dowdle, “Break Out the Mint Juleps in New Hampshire? Is New Hampshire the ‘Primary’ Culprit Limiting Presidential Nomination Forecasts?” American Politics Quarterly 28 (2, 2000):251–269; Randall E. Adkins and Andrew J. Dowdle, “Is the Exhibition Season Becoming More Important to Forecasting Presidential Nominations?” American Politics Research 29 (3, 2001):283–288; William G. Mayer, “From the End of the Nomination Contest to the Start of the National Conventions: Preliminary Thoughts on a New Period in Presidential Campaign Politics,” The Forum, 2 (2, 2004); Dante J. Scala, Stormy Weather: The New Hampshire Primary and Presidential Politics (New York: Palgrave Macmillan, 2003); and Wayne P. Steger, Andrew J. Dowdle, and Randall E. Adkins, “The New Hampshire Effect in Presidential Nominations.” Political Research Quarterly 57 (3, 2004):375–390. 14 See Randall E. Adkins and Andrew J. Dowdle, “How Important Are Iowa and New Hampshire to Winning Post-reform Presidential Nominations?” Political Research Quarterly 54 (2, 2001):431–444. 15 See Christopher C. Hull, Grassroots Rules: How the Iowa Caucus Helps Elect American Presidents (Palo Alto, CA: Stanford University Press, 2007). 16 See Barbara Norrander, Super Tuesday: Regional Politics and Presidential Primaries (Lexington: University Press of Kentucky, 1992). 17 See Mayer and Busch, The Front-Loading Problem in Presidential Nominations. 18 See Barbara Norrander, “The End Game in Post-reform Presidential Nominations,” Journal of Politics 62 (4, 2000):999–1013; and Barbara Norrander, “The Attrition Game: Initial Resources, Initial Contests and the Exit of Candidates During the US Presidential Primary Season,” British Journal of Political Science 36 (3, 2006):487–507. 19 See Norrander, Super Tuesday. 20 See Ridout and Rottinghaus. 21 Ibid. 22 See Mayer and Busch. 23 Michael S. Lewis-Beck and Peverill Squire, “Iowa: The Most Representative State?” PS: Political Science & Politics 42 (1, 2009):39–44. 24 See Mayer, “From the End of the Nomination Contest to the Start of the National Conventions”; and Mayer and Busch. 25 See Adkins. 26 http://www.fec.gov/finance/precm8.htm (accessed July 1, 2010). 27 http://www.fec.gov/press/press2005/20050203pressum/20050203pressum.html (accessed July 1, 2010). 28 See Adkins. 29 Ibid. 30 Ryan J. Barilleaux and Randall E. Adkins, “The Nominations: Process and Patterns,” in The Elections of 1992, ed. Michael Nelson (Washington, DC: CQ Press, 1993). 31 See Mayer, “From the End of the Nomination Contest to the Start of the National Conventions”; and Mayer and Busch, The Front-Loading Problem in Presidential Nominations. 32 Jay Cost, “What Went Wrong with the Clinton Campaign?” Real Clear Politics, http:// www.realclearpolitics.com/horseraceblog/2008/04/what_went_wrong_with_the_ clint.html (accessed July 1, 2010). 33 Paul Abramson, John Aldrich, and David Rohde, Change and Continuity in the 2008 Elections (Washington, DC: CQ Press, 2009), 31. 34 See Barbara Norrander, “Nomination Choices: Caucus and Primary Outcomes, 1976– 1988,” American Journal of Political Science 37 (2, 1993):343–364. 35 Different news organizations provided slightly different delegate counts throughout

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36 37

38 39 40 41 42 43 44 45 46 47

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the primary season. These numbers were taken from the CNN Election Center and last updated on August 20, 2008, http://www.cnn.com/ELECTION/2008/primaries/ results/scorecard/#D (accessed July 1, 2010). Vaughn Ververs, “Lewis to Be an Obama Super Delegate,” CBS News, July 1, 2008, http://www.cbsnews.com/8301-502163_162-3884212-502163.html (accessed June 15, 2010). See Michael G. Hagen and Kathleen Hall Jamieson, “Do Newspaper Endorsements Matter? Do Politicians Speak for Themselves in Newspapers and on Television?” in Everything You Think You Know about Politics and Why You’re Wrong, ed. Kathleen Hall Jamieson (New York: Basic Books, 2000). Ronald B. Rapoport, Walter J. Stone, and Alan I Abramowitz, “Do Endorsements Matter? Group Influence in the 1984 Democratic Caucuses,” American Political Science Review 85 (1, 1991):193–203. See, among others, Marty Cohen, David Karol, Hans Noel, and John Zaller, The Party Decides: Presidential Nominations Before and After Reform (Chicago: University of Chicago, 2008); and Steger, Dowdle, and Adkins. See Michael Hindman, “The Real Lessons of Howard Dean: Reflections on the First Digital Campaign,” Perspectives on Politics 3(1, 2005):121–128; and Hull, Grassroots Rules. See Kathleen Hall Jamieson and Bruce W. Hardy, “Media, Endorsements, and the 2008 Primaries,” in Reforming the Presidential Nomination Process, eds. Stephen S. Smith and Melanie J. Springer (Washington, DC: Brookings Institution Press, 2009), 64–84. See Randall E. Adkins and Andrew J. Dowdle, “Change and Continuity in the Presidential Money Primary,” American Review of Politics 28 (Winter 2007–08):319–341. David Miller, “McCain Opts Out of Public Matching Funds,” CBS News, February 11, 2008, http://www.cbsnews.com/8301-502163_162-3819016-502163.html (accessed July 1, 2010). Tahman Bradley, “Final Fundraising Figure: Obama’s $750M,” ABC News, December 5, 2008, http://abcnews.go.com/Politics/Vote2008/story?id=6397572&page=1 (accessed July 1, 2010). Anthony Corrado and Molly Corbet, “Rewriting the Playbook on Presidential Campaign Financing,” in Campaigning for President 2008, ed. Dennis W. Johnson (New York: Routledge, 2009), 126–146. http://www.realclearpolitics.com/epolls/2008/president/us/general_election_ mccain_vs_obama-225.html (accessed July 1, 2010). Jill Lawrence, “Hispanic Vote Grows, Shifts to Democrats,” USA Today, November 6, 2008, http://www.usatoday.com/news/politics/election2008/2008-11-06hispanics_N.htm (accessed July 1, 2010).

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The Public Presidency Communications and Media Matthew Eshbaugh-Soha

On September 9, 2009, President Barack Obama delivered a primetime, nationally televised address to a joint session of Congress on his top domestic policy priority: health care reform. With all of the pomp and circumstance of a national address, the president forcefully argued for health care reform, claiming that, “now is when we must bring the best ideas of both parties together and show the American people that we can still do what we were sent here to do.” Obama also addressed criticisms made prominent during the August congressional recess. He chastised falsehoods and criticized those who had promulgated “bogus claims” and “misinformation” designed to “kill reform at any cost.” The critical moment of the address may not have been anything that the president said, however. Instead, the speech is likely to be remembered for one outburst from the backbench of the House floor, a shout of “You lie!” blurted by Representative Joe Wilson, Republican from South Carolina. A defining moment for those who watched the speech, for sure, and one that had the potential to shape public perception about health care reform and its debate in Congress. But Americans rarely tune in to presidential addresses, and the September 2009 speech was no different. Nielson reports that 31.85 million viewers watched the president’s health care address to Congress. Although a sizeable audience,1 these numbers were down by 38.6 percent from the audience who watched Obama’s February 24 primetime address to Congress and, at a 35 share, down considerably from audience shares enjoyed by presidents who spoke during the golden age of presidential television.2 It may not be a surprise, then, that public opinion barely moved after the address. Although more Americans approved of Obama’s handling of health care after (47 percent) than before (40 percent) his address,3 this was still not a majority of support. Moreover, those who felt Obama had explained his positions barely budged, from 31 to 32 percent.4 Arguably, this failure to move public opinion is due to the many difficulties each president faces when speaking to the nation and is not unexpected by scholars of the public presidency. Given declining viewership of presidential addresses, moreover, the president increasingly needs the media to reach the public. As such, the speech itself may be even less important than the news coverage that follows, but this does not always bode well for presidential leadership, either. A textbook account of news coverage presents a news media that enjoys the negative and

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scandalous, prefers conflict to agreement, and favors the superficial and entertaining aspects of politics rather than substantive discussions of policy. From this, one could easily have predicted the feeding frenzy that would follow, that coverage would center on Representative Wilson, not the substance of the health care plan offered by the president. Although unsurprisingly most of the news coverage during the week of the president’s speech focused on health care reform, the coverage did not center on the policy implications of the speech. Its focus, instead, was on the political strategy of the address and the “outburst heard ‘round the world,” as stated in Brian Williams’ opening coverage on NBC Nightly News, September 10, 2009. Characterizing the tenor of news coverage surrounding the speech, Williams continued: “President Obama last night set out to deliver a sharp and direct speech on health care, one final big push for reform. However, it was a sharp and direct comment from a Republican congressman in the audience that made a lot of news last night.” The Project for Excellence in Journalism reports that health care reform garnered about a third of the total coverage for the week of September 7–13, 2009 on network television news and more than 45 percent of the coverage on cable news channels. It also concludes that most of the health care coverage focused on the strategy of the speech, its political impact, and Wilson’s outburst. The Wilson outburst morphed into a discussion of racism in American society the following week, further muting any substantive policy coverage that could have resulted from the president’s national address. This anecdote is not unique and illustrates unequivocally that even though media are important to presidential communication, they are not always reliant partners. Given that presidents must depend on media driven more by profit and ratings than democratic norms, it is no wonder that most presidents lament the difficulties of leading the public. This does not mean that the president is incapable of communicating effectively through speeches and other public activities, however. The president not only delivers several hundred speeches per year, the White House is also staffed to the hilt with expertise and supplied with myriad resources to communicate the president’s messages. The efforts to which the president and his communications organization go to shape the news—and public opinion, eventually—are extensive and may foretell great success. Yet much research illuminates the difficulty presidents face, even amid resounding successes. Using examples from the Obama administration as a foundation for building what we know about the public presidency, this chapter considers presidential speeches (considered the central focus of presidential communication efforts), the organizational resources that aid presidential communication, whether presidential communication efforts have a substantive impact on the news media, and finally, what might assist presidential leadership of the news media. In short, this chapter will answer the following questions: What is the public presidency? What does news coverage of the presidency look like? Are presidents successful in influencing news coverage? And what are the prospects for leadership in light of a changing media environment that might accentuate, rather than ameliorate, existing constraints and limitations on effective presidential communication?

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The Public Presidency Notwithstanding the difficulties scholars face in defining leadership as a concept and the myriad definitions offered by scholars,5 leadership is unquestionably a public effort for contemporary presidents, such that a president who speaks repeatedly about his policy priorities is attempting to lead on those issues. According to Jeffrey Tulis, “Rhetorical leadership” is at the “heart” of modern presidential governance,6 after all and, for George Edwards, “leading the public is at the core of the modern presidency.”7 According to Samuel Kernell, leadership constitutes “going public,” whereby presidents use the tools and stature of the public presidency to generate public support for the presidential policies in an effort to achieve those goals in Congress.8 Still others imply in their definitions that publicity is important to presidential leadership. Steven Shull sees leadership as something that requires “ideological commitment and assertiveness,” while Bert Rockman conceives of leadership as “the capacity to impart and sustain direction.”9 Because presidential leadership is a public effort, it depends extensively on communications strategies, from journalistic interviews to informal exchanges with reporters, and daily speeches: the primary vehicle the White House drives to communicate with the news media and public. Although the president’s ultimate goal may be leading public opinion, the president can rarely reach it directly and without the media’s aid. Since the end of the “golden age of presidential television,” when presidents could count on a sizeable viewing audience for their primetime addresses,10 presidents have often received audience shares in line with Obama’s second—rather than first—national address and, what is more, have delivered national addresses only rarely. Indeed, the average yearly number of national addresses between 1960 and 2009 is only about 3.5, with Presidents Nixon and Reagan offering the most national addresses. Figure 4.1 shows, nevertheless, a fairly consistent and flat trajectory of national addresses over this time frame, with (

),

12 10 8 6 4 2

total

Figure 4.1 Number of National Addresses (non-SUA), 1960–2009

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only modest variability across administrations. Given the paucity of direct appeals to the public, therefore, the public presidency is geared increasingly toward leading media to reach public opinion through the news. Although the national address is a rare event, the presidential speech is not, as numerous scholars can attest.11 Figure 4.2 reveals, indeed, that presidential speeches have increased markedly over the time frame. We witness a peak in presidential speeches during Gerald Ford’s presidential election campaign in 1976, attributable to myriad campaign-style speeches. More recently, George W. Bush delivered more speeches on average than Reagan, but fewer than Clinton, producing the appearance of a declining trend in presidential speechmaking. It remains unclear, nevertheless, whether Obama’s speeches represent the beginning of a new upward trend or not, or whether delivering more speeches will even serve to benefit the president as he governs. Within these counts, of course, is significant variation in the focus of each speech. They include dozens of minor policy addresses not televised on the networks that presidents use to elucidate their policy priorities. Presidents go to great lengths to generate news coverage and public exposure by holding town-hall meetings that involve audience questions and the president’s answers. Presidents regularly attend public fundraisers, as well, although these are more common during presidential re-election and midterm election years. Even if these speeches may generate substantial news coverage by local sources,12 national news coverage of non-televised addresses will be more variable than a televised address. To maximize news coverage through these speeches, presidents are cognizant of appearing newsworthy and so use the White House communications operation to present presidents in newsworthy and unique ways.

700 600 500 400 300 200 100

Figure 4.2 Total Number of Yearly Non-major President Speeches, 1949–2009

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53

01

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19

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Another customary means of communicating to the American people, while generating modest news coverage, is the president’s weekly radio address, a favorite among presidents since the Reagan administration (albeit with a brief respite during the first Bush presidency). This format has transformed under the Obama administration. Now called “Your Weekly Address,” it is an Internet podcast, delivered weekly on Saturday mornings. Typically, news outlets cover the president’s Saturday address, airing at least part of it during a Saturday afternoon news program and generating a significant increase in the amount of presidential news in newspapers.13 But this is paired with an opposition party address and, what is more, occurs on one of the slowest news days of the week, with its potential impact limited by the few people who actually hear the president speak, whether directly on their computer or radio, or indirectly through a media summary of the speech. The radio address provides, nonetheless, an opportunity for presidents to reach out to the public through their own words and with little journalistic interpretation. Presidents also engage in more direct appeals with journalists. George W. Bush averaged about 50 interviews with news organizations per year, while Clinton held about 46 interviews per year through his eight years in office.14 Obama has continued this pace, arranging 31 interviews (through November 2009) with network and cable news moderators, newspapers, and radio networks such as National Public Radio. He even engaged in a five-interview blitz on the Sunday morning talk shows on September 20, 2009, famously snubbing FOX News Channel, arguing that it was not, in fact, a news organization, but rather a conservative opinion operation.15 The five networks he did appear on were CNN, NBC, ABC, CBS, and Univision. Interviews are often used to explain specific actions, situations, or criticisms of the White House.16 A memorable example occurred when candidate Bill Clinton used a 60 Minutes interview following Super Bowl XXVI to refute allegations concerning marital infidelity. Presidents are always followed by reporters, whether aboard Air Force One, walking to Marine One, or arriving at public speaking events throughout the nation. This provides the president with the opportunity to answer questions quickly, giving the press time, but not too much of it. These informal exchanges with reporters are even more plentiful than interviews, and are a reflection of personal style. Clinton averaged over 100 of these exchanges per year, whereas George W. Bush averaged about 50 exchanges in every year but his first. Press conferences are even fewer but they, too, reflect heavily the president’s style of engaging the media.17 George H.W. Bush held numerous afternoon press conferences in the White House briefing room, whereas Reagan held few overall, relying almost exclusively on a handful of formal evening press conferences. Although Clinton and George W. Bush both averaged about 25 press conferences per year, Clinton gave fewer press conferences each year he was president, whereas Bush held roughly similar numbers through his first six years in office. Of these, the bulk of Bush’s press conferences were primarily joint sessions held with other foreign leaders. Dealing with the media directly is a different skill from speaking prepared words to an audience. Just as the president has speechwriters and media affair consultants

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who coordinate his message with his style for delivering it, so too does the president have staff who help prepare him for exchanges, research possible questions, and provide information for effective answers. Preparation is especially detailed and extensive for the president during his press conferences. Although some maintain that the press conference is a mostly contentious event, something for the president to avoid,18 presidents have tremendous control over this exchange, having staff that can anticipate questions and prepare the president to answer them. As Martha Joynt Kumar describes, the president can “call on the reporters he wants to recognize . . . in the order of his choosing. His staff prepare[s] in advance a list of questions they believe may be asked, and senior staff members also prepare possible responses, which they discuss with the president in preparatory sessions.”19 Undoubtedly, presidential performances may vary and presidents may perform so poorly as to avoid or limit future press conferences. The president has a honeymoon period with reporters,20 after all, and once that ends, presidents may feel more resentment toward increasing negative news coverage of their administrations. Jimmy Carter held monthly press conferences early in his tenure, for example, but quickly curtailed them not solely because it takes time and energy to prepare for these events to perform admirably. Clinton, likewise, appears to have reduced his press conferences throughout 1998 to avoid reporters’ questions about Monica Lewinsky. Even joint press conferences do not provide the president cover in the face of a major scandal, much as Clinton learned during his joint conference with Prime Minister of Great Britain Tony Blair on February 6, 1998.21 Ultimately, it is up to the White House staff to maximize the president’s exposure in a way that presents him in the best light but also provides him an opportunity to satisfy demands on the press, reach the news, and ultimately, the American people. Depending on circumstances and personal style of the president, the press conference may not be the ideal scenario for the president to achieve these goals.

White House Communications in an Institutional Context It is not the president alone who communicates in the public presidency. Instead, it is the growing institution of the presidency that allows for presidents to simultaneously lead Congress, manage the media, and reach the public. The presidency has evolved from a single elected official with a staff of fewer than a dozen, to an organizational entity divided into numerous task specializations with hundreds of regular staffers. Institutionalization is not relegated to communications, of course, but it has extended its reach. According to Mike McCurry, press secretary from 1995 to 1998 during the Clinton administration: “Twenty-five to 30 percent of the paid White House staff devotes at least two thirds of its time to communications . . . but just about everybody who has any serious, consequential role at the White House . . . has to be . . . cognizant of playing a role in how are we going to communicate.”22 Placing that in concrete numbers, at the beginning of his second term in office, George W. Bush employed nearly 350 people in the White House to assist him in communicating his policies and portraying favorably his presidency.23 Communications staff ranges from speechwriters and media affairs

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consultants to communications directors, the difficulties in measuring staff size notwithstanding.24 Although more diverse and variable by presidential administration, the two key entities involved in coordinating and communicating the president’s message are the Office of Communications and the Press Office. The Office of Communications25 has existed more or less consistently since the Nixon administration, which created the office to facilitate communication with the media given its growing presence and importance to the public presidency. The Office of Communications has supplied presidents with the institutional resources to maximize the effectiveness of communications strategies and respond to public expectations through myriad speeches, of course, but also other efforts to control the president’s messages. These include disseminating information about the president’s priorities in a timely and strategic fashion, engaging in dumps of negative information on Friday afternoon when fewer people are engaged in presidential news, and releasing trial balloons to gauge media and public response to possible administration actions. Although variable over time, the Office of Communications now typically includes speechwriting and media affairs operations, and staff to research and coordinate strategic planning efforts.26 With its primary responsibility to help the president to set the public and media agendas—to engage in “merchandising” the presidency—the Office of Communications attempts to influence what about the president the media will cover in the news and, therefore, what the public thinks about the president and his policies.27 It does so through “barnstorming” regional media and distributing fact sheets to editors and other “opinion leaders” to build public support for the president’s policies. Recent efforts by presidents to “go local,” to target local news organizations and local publics with their policy messages are a foray of this office, too, with one of the best known and most extensive efforts to do this occurring in the George W. Bush administration, with his “60 stops in 60 days” social security reform tour. The Press Office also plays a central role in presidential communication efforts. In terms of influencing the media, it is perhaps even more direct than the Office of Communications. It is the press secretary, through daily news briefs and morning gaggles, who provides the official record of the president and communicates it directly to reporters, mostly those who make up the Washington press corps. Primarily, the press secretary acts as an information conduit between the president and reporters, helping the president reach the media without having to personally do so as frequently.28 Of course, this relationship is not one-way, with the press secretary expressing the president’s views for reporters to take at face value. Rather, it is one of give-and-take, whereby the president uses the press corps to communicate his messages to the public, just as the media use the president as a reliable political news source.29 The fact that news coverage of the presidency tends to be primarily negative raises questions about the ability of the press and communications offices to cultivate its relationship with the news media in a way that maximizes the president’s policy success and his personal image.30

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The Mediated Presidency If the president speaks but the media do not report it, does it make a sound? The answer appears to be that presidents can speak continuously and without interruption but their prospects for leading publicly in the contemporary age without reaching the media first are limited. And if presidential leadership rests with the news media, it does so precariously. As Lori Cox Han writes, after all, White House reporters are interested in reporting on “suspected scandal, dissension within an administration, verbal and visual gaffes, and tactical political blunders. Few are policy experts.”31 This raises concerns for presidential leadership of the news media, whether in terms of the amount, substance, or tone of news coverage, and that presidential news may be mostly superficial and negative. In spite of these characteristics of news coverage, given the resources presidents expend to influence news coverage, one may expect them to succeed. But do they? The media are central to presidential communication and leadership for many reasons, but mainly because the president must reach the media to lead the public in the contemporary age. The media are thus vital to presidential leadership for several reasons. First, news coverage influences which issues the public considers to be important.32 Second, media attention to policy issues affects public familiarity with and the public’s knowledge about those issues.33 Third, media coverage of issues primes the public’s evaluation of the president, so that when the media report extensively on an issue, it is that issue the public uses to evaluate presidential job performance.34 Finally, media framing matters to the public’s perception about issues.35 And although much research focuses on the relationship between hardnews programs and public opinion, other research shows that even soft-news programs, such as The Oprah Winfrey Show, may increase public exposure to important policy issues.36 It goes without saying that presidents are the primary news interest of the media, especially in comparison with other political institutions. Presidents simply garner more network news time than any of the three federal branches of government. As Doris Graber illustrates, presidents tend to average from 10 to 20 stories more per month than Congress on the three major television news networks (ABC, CBS, and NBC) and approximately four times as much coverage as the United States Supreme Court.37 It certainly helps the president’s broader strategy of influencing the public through news coverage that public interest in presidential news is quite high, especially when compared to news of others in government.38 The trend in the amount of presidential news is somewhat complicated, however. Over the long haul, Jeffrey Cohen documents a clear decline in the amount of presidential news coverage both on network television and as printed in The New York Times.39 Yet Cohen’s research shows an upward trend in presidential news coverage since 1999.40 Tracking Graber’s counts of presidential news on network television, moreover, we see that Clinton averaged about 107 stories per month between August 1994 and July 1995.41 Although this number drops substantially to 41 stories per month between July 1999 and June 2000, it increased slightly to 45 stories for George W. Bush between July 2003 and July 2004.

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Of course, none of this considers news coverage of the Obama administration, which has increased from previous lows. At least for his first 50 days in office, Obama received substantially more news coverage than either of his previous two counterparts during similar points in their tenures. The three network news programs devoted 1,021 stories, at 27 hours and 44 minutes, to Obama, with a daily average of seven stories at 11 minutes. In contrast, they devoted only seven hours and 42 minutes to the George W. Bush presidency during early 2001, down from the 15 hours and two minutes of coverage that Clinton received during his first 50 days in 1993. If presidents are intent on generating voluminous news coverage, then going local may be an optimal strategy. For example, Andrew Barrett and Jeffrey Peake sampled 12 days in 2001 in which the president traveled throughout the United States. During this time frame, they report that local newspapers generated 119 stories, compared with only 10 stories printed in The Washington Post.42 Coverage of George W. Bush’s social security reform tour in 2005 produced similar results, as the length of coverage in local newspapers was about seven percent longer than in The Washington Post.43 In any event, if presidents want more newspaper coverage, they should target cities with larger newspapers, which tend to print more stories about the president than smaller ones.44 Beyond amount, we know that news coverage is not focused on the substance of the policies and priorities that presidents are bent on communicating. Thomas E. Patterson shows three trends consistent with this point: There are now more news stories (1) without a policy component, (2) that are sensational, and that are (3) generally soft, rather than hard.45 This tendency toward superficial rather than substantive news coverage of the presidency is especially pronounced for news stories that are generated by local newspapers that cover the president’s travels. Roughly half of George W. Bush’s front-page, local newspaper coverage of his social security reform tour, for example, was descriptive rather than substantive.46 Unquestioned is the platitude that news coverage of the presidency is negative. Of the nine years examined by Stephen J. Farnsworth and S. Robert Lichter, only one year—1989, the first year of George H. W. Bush’s presidency—produced news coverage that was more than 40-percent positive.47 These data examine each of the last four presidents’ first years in office, which typically include a honeymoon with the public, media, and Congress. If presidents cannot expect mostly positive coverage during their honeymoon period, then perhaps they should never expect more positive than negative coverage. Others report that network news organizations are more likely to report on the president’s approval rating when it declines, rather than when it increases.48 Local newspaper coverage of the president’s travels produces much less negative coverage than national news does, even though this coverage is less policy driven.49 When local coverage is more policy oriented, such as during the Iraq war in 2003, this, too, produces more negative than positive coverage.50 The tendency toward negative coverage of the presidency does not appear to have abated with the Obama administration. Most news coverage of Obama early in his tenure was positive. At 57 percent, this exceeds the 33-percent positive

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coverage George W. Bush and 44-percent positive coverage Clinton received during a comparable time in their administrations. Yet Obama received much less than a majority—40 percent—of positive coverage on his policies, with only 37 percent positive on his initial top policy priority: the economy. Foreign policy evaluations were even less positive, at 24 percent. We also know that news coverage gets worse for presidents as their tenure lengthens. This is no different for Obama, who witnessed a substantial increase in negative news coverage, with only 43-percent positive coverage from May through mid-August 2009, with “every major policy of the administration [having] received more criticism than praise from the press.”51 Whether through a national address, other speeches, or targeted efforts at going local, presidents have much opportunity to lead the news media. Nevertheless, the president has much difficulty encouraging the media to cover his top policy priorities, even though presidents garner more news coverage than any other political institution. Simply, news media have other priorities besides granting the president’s words exposure on their networks. This is driven in part by the media’s preference for soft, entertaining, and celebrity-related—rather than hard policyrelated—news, and their desire for profit rather than fulfilling norms of democracy.52 A most telling example of this occurred during Clinton’s February 4, 1997 State of the Union Address, where the president actually shared the television screen with the verdict in O.J. Simpson’s civil trial.53 Coverage tends to be quite superficial and devoid of policy content, and is instead focused on the person, or in other words, the “body watch” and other types of human interest stories (e.g. the Obama’s dog, Bo). Therefore, the media will not cover the president as often as he speaks, and generally may not do so substantively. Concerning national addresses, arguably the best opportunity for presidents to generate news coverage despite the complications accentuated during the opening vignette of this chapter, we find mixed results, at best, of the president’s leadership of the news media. Focusing on the obligatory and annual State of the Union Address, for example, Wayne Wanta et al. report that presidents have had only mixed success influencing what the media cover in their analysis of the address since 1970, with only Nixon’s 1970 address having a clear impact on the media’s agenda.54 Oddly, Reagan’s 1982 address affected newspaper coverage, but television coverage seems to have influenced the topics Reagan covered in his speech. In a 2008 issue of Political Communication, four specific policy areas of national addresses are examined: the economy, drugs, Central America, and energy. The findings show that although presidents were able to use their national address to increase media coverage of the issues, national addresses significantly increased national news coverage only about one third of the time.55 Others recognize that presidents speak daily, sometimes multiple times in a day, and analyze the impact of all presidential speeches on news coverage. George C. Edwards III and B. Dan Wood published a comprehensive treatment of presidential leadership of the news media and found that it is not guaranteed. Instead, presidential leadership of the media on foreign policy issues (e.g. US-Soviet relations and the Arab-Israeli conflict) is virtually non-existent.56 Instead, presidents

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tend to respond to media coverage on foreign policy issues. Although presidents lead news coverage of domestic issues, particularly health care and education, they also respond to news coverage of education and crime. The president’s economic agenda is driven by news coverage of the economy, especially when it is in recession, with fewer positive stories prompted by presidential credit-claiming during times of economic prosperity. At best, this demonstrates a mixed assessment of presidential leadership of the news media on domestic policy issues, and a responsive presidency on foreign policy issues.57 When presidents do affect news coverage, it is typically because of their own strategic intentions to do so. Despite Edwards and Wood’s conclusion of limited presidential leadership of the news media, they concede that presidents can lead the media agenda when they act entrepreneurially and prioritize a policy not previously on the media’s agenda.58 Jeffrey Peake’s study of foreign policy issues less salient than Soviet-US relations and the Arab-Israeli conflict reveals that when presidents prioritize a unique and otherwise less-newsworthy set of policies, they are best situated to increase news coverage of those issues.59 Although national, prestige newspapers (such as The New York Times and The Washington Post) cover the president’s legislative appeals only about 40 percent of the time, presidents can shape news coverage strategically by focusing extensively on a single policy in their speech. As an example, presidents who deliver a lengthy (20 paragraphs or longer), focused policy speech can expect coverage from such newspapers more than 93 percent of the time.60 Jeffrey Cohen also shows a small impact of presidential speeches on the number of newspaper stories.61 More promising for presidents may be the strategy of going local. Presidents engage in domestic travel throughout the country to target local media and publics so as to generate extensive news coverage. Often, these are scripted “media events” in which the White House attempts to structure the event in such a way that there is at least the appearance of support for the president and his policies. The White House tends to have more leeway influencing the less-experienced (and less-cynical) reporters of less-resourceful local newspapers by providing them with more information that supports its perspective. A local presidential visit is usually a positive event, besides, leading to the expectation of more positive, local news coverage, especially in areas that are predisposed to support the president.62 Surely, the national news media will find something negative to say and it may well be the strategy itself that they criticize. More presidential speeches seem to increase negative news coverage, in any event.63 But if the event produces little discord, then consistent with indexing theory, most coverage by the local newspaper should reflect the tenor of the event and be mostly positive. Indeed, more quotes attributed to the president increases the positive tone of a presidential news story.64 The news is not entirely positive for presidents who rely on local media to govern. First, even when local news coverage of the president’s visit is positive, it tends to be more descriptive than substantive, producing only modest references to the president’s policies, even when the goal of the speech or series of speeches is to build support for that policy.65 This complicates the president’s ability to communicate his reasons for the public to support his policy agenda. Second, coverage

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of local visits contrasts with everyday local newspaper coverage of the presidency, which is more negative.66 In turn, readers of local newspapers are exposed mostly to negative news of the presidency. Third, even positive local coverage may not provide any added value for presidents, as they may only be singing to the choir. Much of the evidence points to local ideology as driving the tone and amount of local newspaper coverage.67 That is, a news organization—which desires profit— will appeal to its audience. If that audience is primarily conservative, then news coverage of a conservative president will be more positive than negative. Presidents are therefore wise to target those locales that already share their ideological views if the strategy is to generate positive local news coverage. But by targeting a population that already agrees with them, presidents are not likely to build additional support for their policy solutions. Presidents may still attempt to use local public support and newspaper coverage to their advantage, although evidence to prove it works is lacking. A conservative president may go to conservative areas to put pressure on legislators from the opposition party to support his legislative priorities. George W. Bush used such a strategy to build support for tax cuts and reform social security. Although Congress passed a sizeable tax cut bill in 2001, Bush’s travels did not shift public opinion or congressional support at all.68 In fact, the tax cut was much smaller than Bush originally proposed. Bush’s strategy in targeting Senator Ben Nelson (a Democrat from Nebraska) and other Democrats in “red” states to support Bush’s social security reform efforts in 2005 summarily failed, as well.

Cable News and Other New Media What remains, and about which current research says very little, is whether the proliferation of cable news and new media matter to presidential leadership. The short answer is: Of course it does. Presidents are afforded additional means through which to communicate their message through cable television and the internet. Even though this might stretch their reliance on traditional media, presidents have not deviated yet from these sources of news and, besides, the White House is well equipped to penetrate multiple arenas of news coverage. Surely, these new media require alternative strategies and considerations that may differ considerably from traditional means of communication. But the White House has been quick to adjust to the several developments—such as targeting Friday evening because Saturday news viewership tends to be lowest—to dump negative and potentially damaging information about the president. A recent example was the Bush White House’s release of the president’s military service records on a Friday evening during his 2004 re-election campaign. The long answer is that new media outlets may not make much of a difference in the overall effectiveness of presidential communications. The expectation may be that presidents should be able to reach and motivate more young people through the internet, for example, because the nation’s youth are more tech savvy and thus use alternative sources of information more readily than older Americans. Candidate Obama certainly tapped into this in the 2008 election by texting the

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announcement of his vice-presidential selection. He has continued to tap internet resources, answering people’s questions on YouTube during the week of his 2010 State of the Union Address. But do these new means of outreach matter? Although a systematic answer is impossible now, one may speculate that they do not. Research on traditional media and public interest in politics relies heavily on political predispositions and self-selective behavior. If American youth are not interested in American politics, then no matter how much information the Internet provides about politics and policies, one must be interested in that information to seek it out in the first place. Just because Obama speaks on the Internet does not mean that a college student is watching; they may well be surfing sports scores, communicating on Facebook, or streaming episodes of South Park. We certainly did not see an explosion of political youth involvement with the rise of cable television, nor did we see an increase in the level of American’s political engagement as the 24-hour news cycle provided potential for the greater dissemination of information.69 At the least, the Internet’s impact on political engagement appears to be slight, at best.70 Given self-selection, presidents may benefit not from targeting a particular medium, but rather specific content. If a target audience—consisting of, say, young Americans—is more likely to watch The Daily Show than NBC Nightly News, then presidents may wish to reach out to this type of program, much as Bill Clinton targeted MTV and various late-night talk shows during his election campaigns and presidency. Comedy and other soft-news programs tend to provide a “gateway” to increased political knowledge for the politically disinterested.71 Late-night programs also increase the accessibility of political information, which encourages policy learning72 and political knowledge.73 There may be the additional benefit of capitalizing on the agenda-setting effect that entertainment television programs have, such that presidents may benefit from prioritizing a policy issue after it has been treated as a story in a courtroom or hospital drama.74 However, just as viewer confidence in understanding politics increases, so, too, does the audience’s level of political cynicism that undermines the potential benefits to presidents of communicating through alternative media.75 The bottom line is that political engagement has not increased markedly with the expansion of new media.76 Targeting new media is hardly a guarantee of public outreach, given the only roughly six million Americans who watch cable news, with FOX News Channel leading the way with approximately three million primetime viewers, or roughly a tenth of a percentage of the overall population. Targeting alternative programs is important for presidents who wish to lead the entire nation’s public opinion, of course. But it is not a panacea for effective presidential communication, given its limited reach. New media will have an impact on the presidency, to be sure, but its significance will likely occur, as George C. Edwards III wrote years ago, “at the margins.”77

Conclusion It remains a truism, perhaps, that despite the extent to which contemporary White House staffs go to promote and sell the president’s policy priorities and his

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presidency, presidents experience myriad setbacks and failures. Scholarly research finds, indeed, that despite the level of media outreach of recent presidencies, presidents cannot always generate adequate coverage of their policies and, even when they do, this coverage tends to be more negative than positive or more superficial than substantive. What is more, scholarly research tends to contrast with the conventional wisdom that cultivating public opinion through the news media is the approach that modern presidents have to take to be successful. Recall President Obama’s lament after Scott Brown (a Republican from Massachusetts) wrested Ted Kennedy’s senate seat away from the Democratic party in January 2010: “We were so busy just getting stuff done . . . that I think we lost some of that sense of speaking directly to the American people about what their core values are and why we have to make sure those institutions are matching up with those values.” The White House contends that this political defeat was a lack of effective communication, but changing the public’s policy preferences is not likely in the current age of new media. The public presidency is at the heart of contemporary presidential governance, but communicating to the public and leading the news media is no easy task. More importantly, leading in the contemporary age—with its fragmented media, decentralized news audiences, and diversified entertainment possibilities—requires presidents to first access the news media, and then lead it, as the White House clearly attempts to do. In light of this expectation of leadership and the resources devoted to cultivating news coverage, the most important power of the presidency, according to Richard Neustadt, is the “power to persuade.”78 But if successful presidential leadership requires persuading the media, then presidents are only modestly influential leaders, at best.

Notes 1 Even the audience for Obama’s 2010 State of the Union Address, watched by 48 million Americans, is still small. In comparison, Super Bowl XLIII averaged 98.7 million viewers, seen by 42 percent of American homes with a television, at a 64 share. Fewer viewers simply increases the media’s impact on the president’s public leadership efforts. 2 Presidents Nixon, Ford, Carter, and Reagan’s televised addresses had a range of 62 to 75 percent average shares. See Joe S. Foote, “Ratings Decline of Presidential Television,” Journal of Broadcasting & Electronic Media 32 (1988):225–30. 3 Respondents were asked, “Do you approve or disapprove of the way Barack Obama is handling health care?”, August 27–31, 2009 and September 19–23, 2009, CBS News. 4 Respondents were asked, “Do you think Barack Obama has clearly explained what his plans for health care reform would mean, or hasn’t he clearly explained that?”, August 27–31, 2009 and September 19–23, 2009, CBS News. 5 For example, see Thomas E. Cronin, “Thinking and Learning about Leadership,” Presidential Studies Quarterly 14 (Winter 1984):22–34. 6 Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987), 4. 7 George C. Edwards III, On Deaf Ears: The Limits of the Bully Pulpit (New Haven, CT: Yale University Press, 2003), 4. 8 See Samuel Kernell, Going Public: New Strategies of Presidential Leadership, 3rd ed. (Washington, DC: CQ Press, 1997).

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9 See Steven Shull, A Kinder, Gentler Racism? The Reagan-Bush Civil Rights Legacy (Armonk, NY: M. E. Sharpe, 1993), 8; and Bert A. Rockman, The Leadership Question: The Presidency and the American System (New York: Praeger, 1984), 6. 10 See Matthew A. Baum and Kernell, “Has Cable Ended the Golden Age of Presidential Television?” American Political Science Review 93 (1999):99–114. 11 For example, see Matthew Eshbaugh-Soha, “The Politics of Presidential Speeches,” Congress and the Presidency 37 (2010):1–21; Gregory L. Hager and Terry Sullivan, “President-Centered and Presidency-Centered Explanations of Presidential Public Activity,” American Journal of Political Science 38 (1994):1079–103; William Lammers, “Presidential Attention-Focusing Activities,” in The President and the Public, ed. Doris Graber (Philadelphia: Institute for the Study of Human Issues, 1982); and Richard J. Powell, “‘Going Public’ Revisited: Presidential Speechmaking and the Bargaining Setting in Congress,” Congress and the Presidency 26 (1999):153–70. 12 See Jeffrey E. Cohen, Going Local: Presidential Leadership in the Post-broadcast Age (New York: Cambridge University Press, 2010). 13 Ibid., 116. 14 Unless otherwise noted, the following numbers for Clinton and Bush are reported in Martha Joynt Kumar, Managing the President’s Message: The White House Communications Operation (Baltimore: The Johns Hopkins University Press, 2007), 22–24 and Chapter 7. 15 Obama did appear on FOX News on February 3, 2009, in an interview with Chris Wallace, anchor for FOX News’ Sunday morning program, FOX News Sunday. 16 Kumar, 19. 17 See Eshbaugh-Soha, “Presidential Press Conferences over Time,” American Journal of Political Science 47 (April 2003):348–53. 18 See Hager and Sullivan. 19 Kumar, 273. 20 See Michael Baruch Grossman and Kumar, Portraying the President: The White House and the News Media (Baltimore: The Johns Hopkins University Press, 1981). 21 It helps, to be sure, because good journalists also want to ask about the president’s policies, especially as they pertain to his guest and their meeting. Reporters asked Clinton and Blair several questions about the situation in Iraq, but several more questions concerned Monica Lewinsky and the Starr Investigation, prompting Clinton’s infamous “I did not have sexual relations . . .” comment. 22 Kumar, 4. 23 Ibid., 5. 24 See Charles E. Walcott and Karen M. Hult, “White House Staff Size: Explanations and Implications,” Presidential Studies Quarterly 29 (1999):638–56. 25 The Office of Communications has gone by different names. For George W. Bush, communications operations were centralized according to the counselor to the president. Although slightly different organizationally, the goals remain similar across administrations. See Kumar for the most thorough discussion. 26 See Kumar, Chapter 4. 27 Hult and Walcott, Empowering the White House: Governance under Nixon, Ford, and Carter (Lawrence: University Press of Kansas, 2004), 63. 28 Kumar, 199. 29 See Grossman and Kumar. 30 See Cohen, The Presidency in the Era of 24-Hour News (Princeton, NJ: Princeton University Press, 2008). 31 Lori Cox Han, Governing from Center Stage: White House Communication Strategies During the Television Age of Politics (Cresskill, NJ: Hampton Press, 2001), 13. 32 See Shanto Iyengar, Is Anyone Responsible? (Chicago: University of Chicago Press, 1991); and Iyengar, Mark D. Peters, and Donald R. Kinder, “Experimental Demonstrations of the ‘Not-So-Minimal’ Consequences of Television News Programs,” American Political Science Review 76 (1982):848–58.

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33 See Benjamin I. Page and Robert Shapiro, The Rational Public: Fifty Years of Trends in Americans’ Policy Preferences (Chicago: University of Chicago Press, 1992), and W. Lance Bennett, News: The Politics of Illusion, 8th ed. (New York: Pearson, Longman, 2009). 34 See Edwards III, William Mitchell, and Reed Welch, “Explaining Presidential Approval: The Importance of Issue Salience,” American Journal of Political Science 39 (1995):108–34; Jon A. Krosnick and Kinder, “Altering the Foundations of Support for the President through Priming,” American Political Science Review 84 (1990):497–512; and Iyengar, Is Anyone Responsible? 35 See Franklin D. Gilliam, Jr. and Iyengar. “Prime Suspects: The Influence of Local Television News on the Viewing Public,” American Journal of Political Science 44 (2000): 560–73. 36 See Baum, Soft News Goes to War: Public Opinion and American Foreign Policy in the New Media Age (Princeton, NJ: Princeton University Press, 2003). 37 Graber, Mass Media and American Politics, 7th ed. (Washington, DC: CQ Press, 2006), 251. 38 See Herbert Gans, Deciding What’s News: A Study of CBS Evening News, NBC Nightly News, Newsweek, and Time (New York: Vintage Books, 1980); and William D. Howell and Jon C. Pevehouse, When Dangers Gather: Congressional Checks on Presidential War Powers (Princeton, NJ: Princeton University Press, 2007), 173. 39 See Cohen, The Presidency in the Era of 24-Hour News; and Lyn Ragsdale, Vital Statistics on the Presidency: George Washington to George W. Bush (Washington, DC: CQ Press, 2009). 40 Cohen, The Presidency in an Era of 24-Hour News, 33. 41 See Graber, Mass Media and American Politics. 42 Andrew W. Barrett and Jeffrey S. Peake, “When the President Comes to Town: Examining Local Newspaper Coverage of Domestic Presidential Travel,” American Politics Research 35 (January 2007):3–31 43 See Eshbaugh-Soha and Peake, “The Contemporary Presidency: ‘Going Local’ to Reform Social Security,” Presidential Studies Quarterly 36 (December 2006):689–704. 44 See Cohen, Going Local; and Eshbaugh-Soha and Peake, “The Presidency and Local Media: Local Newspaper Coverage of President George W. Bush,” Presidential Studies Quarterly 38 (December 2008):606–27. 45 See Thomas E. Patterson, “Doing Well and Doing Good: How Soft News and Critical Journalism Are Shrinking the News Audience and Weakening Democracy—And What News Outlets Can Do About It,” study through The Joan Shorenstein Center for Press, Politics, and Public Policy, John F. Kennedy School of Government, Harvard University, 2000. 46 See Eshbaugh-Soha and Peake, “The Contemporary Presidency: ‘Going Local’ to Reform Social Security,” Presidential Studies Quarterly 36 (December 2006):689–704. 47 Stephen J. Farnsworth and S. Robert Lichter, The Mediated Presidency: Television News and Presidential Governance (Lanham, MD: Rowman & Littlefield Publishers, 2006), 51. 48 See Tim Groeling and Kernell, “Is Network News Coverage of the President Biased?” Journal of Politics 60 (1998):1063–87. 49 See Barrett and Peake, 2007; and Eshbaugh-Soha and Peake, 2006. 50 See Eshbaugh-Soha and Peake, “The Presidency and Local Media: Local Newspaper Coverage of President George W. Bush,” Presidential Studies Quarterly 38 (December 2008):606–27. 51 Nikki Schwab, “Media Coverage of Obama Grows More Negative,” US News & World Report, September 14, 2009, accessed September 14, 2009, http://www.usnews.com/ articles/news/washington-whispers/2009/09/14/media-coverage-of-obama-growsmore-negative.html. 52 See Jan E. Leighley, Mass Media and Politics: A Social Science Perspective (Boston: Houghton Mifflin, 2003). 53 See Francis X. Clines, “On Split Screen Night, Clinton Gets Full Attention of Congress,” The New York Times, February 4, 1997.

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54 See Wayne Wanta, Mary Ann Stephenson, Judy Van Slyke Turk, and Maxwell E. McCombs, “How President’s State of Union Talk Influenced News Media Agendas,” Journalism Quarterly 66 (1989):537–41. 55 See Peake and Eshbaugh-Soha, “The Agenda-Setting Impact of Major Presidential TV Addresses,” Political Communication 25 (2008):113–137. 56 See Edwards III and B. Dan Wood, “Who Influences Whom? The President, Congress, and the Media,” American Political Science Review 93 (1999):327–44; and Wood and Peake, “The Dynamics of Foreign Policy Agenda Setting,” American Political Science Review 92 (1998):173–84. 57 See Eshbaugh-Soha and Peake, “Presidents and the Economic Agenda,” Political Research Quarterly (March 2005):127–38. 58 See Edwards III and Wood. 59 See Peake, “Presidents and Front-Page News: How America’s Newspapers Cover the Bush Administration,” Harvard International Journal of Press/Politics 12 (2007):52–70. 60 See Barrett, “Press Coverage of Legislative Appeals by the President,” Political Research Quarterly 60 (2007):655–68. 61 Cohen, Going Local, 116. 62 See Barrett and Peake and Eshbaugh-Soha and Peake “The Contemporary Presidency.” 63 Cohen, Going Local, 165. 64 Ibid. 65 See Eshbaugh-Soha and Peake “The Contemporary Presidency.” 66 See Eshbaugh-Soha, “The Tone of Local Presidential News Coverage,” Political Communication 27 (2010):121–40. 67 See Eshbaugh-Soha and Peake “The Presidency and Local Media.” 68 Senator Zell Miller (a Democrat from Georgia) supported the president, but had indicated his intention to do so upon Bush’s inauguration. 69 The discussion of how cable news failed in this regard is an important subject, but one that is well beyond the scope of this chapter; see, for starters, William F. Baker and George Dessart, Down the Tube: An Inside Account of the Failure of American Television (New York: Basic Books, 1998). 70 See Shelley Boulianne, “Does Internet Use Affect Engagement? A Meta-analysis of Research,” Political Communication 26 (2009):193–211. 71 See Baum, Soft News Goes to War. 72 See Michael Parkin, “Taking Late Night Comedy Seriously: How Candidate Appearances on Late Night Television Can Engage Viewers,” Political Research Quarterly 16 (2010):3–15. 73 See Paul R. Brewer and Xiaoxia Cao, “Candidate Appearance on Soft News Shows and Public Knowledge about Primary Campaigns,” Journal of Broadcasting & Electronic Media 50 (2006):18–35. 74 See Andrew R. Holbrook and Timothy G. Hill, “Agenda-Setting and Priming in Prime Time Television: Crime Dramas as Political Cues,” Political Communication 22 (2005):277–95. 75 See Jody Baumgartner and Jonathan S. Morris, “The Daily Show Effect: Candidate Evaluations, Efficacy, and American Youth,” American Politics Research 34 (2006):341–67. 76 See Cohen, The Presidency in the Era of 24-Hour News. 77 See Edwards III, At the Margins (New Haven, CT: Yale University Press, 1989). 78 See Richard E. Neustadt, Presidential Power and the Modern Presidents (New York: John Wiley & Sons, 1960).

5

The Presidency and Public Opinion Diane J. Heith

In an interview with Jim Lehrer on PBS’s The News Hour on February 27, 2009, President Barack Obama stated that his decisions were not based on public opinion: “You know, I don’t—I don’t make these decisions based on polls or popularity. I make the decisions based on what I think is best. This is consistent with what I said during the campaign. The fact—if anything, I think people should be interested in the fact that there’s been a movement in the direction of what I thought was going to be the right plan in the first place.” In his response, Obama acknowledged the inherent dilemma facing the modern presidency: How do you lead in a representative democracy where every miniscule decision receives a critique? Leadership seemingly requires the public to follow the leader; yet a representative democracy holds leaders accountable for their positions via elections. A public unhappy with a president’s exercise of leadership will not grant that president a second term. Obama insisted, as all presidents have since the invention of public opinion polls, that he does not watch the polls. Yet one sentence later, like all presidents before him, he indicated knowledge of shifting public opinion, which can be obtained only by watching the polls. The twenty-first century American president lives in a world where the public’s evaluation of him, particularly whether the public approves or disapproves of the job he is doing, is constant. The continuous polling of the public seemingly offers the modern presidency a means to use the public as an extra-constitutional tool to enhance leadership opportunities. However, the unceasing evaluation defines and constrains a president’s ability to lead. As President Obama learned in the transition from campaigning to governing, the public can be a tremendous asset as well as a dangerous vulnerability.

Evaluating the Presidency Obama rode into office on a wave of popular jubilation, beyond the normal blush of victory. The public celebrated and the media trumpeted the historic nature and meaning of the election of the first African American to the most powerful office in the world. Even without the historic nature of his election, Obama still entered office on a wave of support and participation from the Democratic primary season and the general election campaign. In contrast to both of his immediate predecessors,

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Bill Clinton and George W. Bush, Obama won office receiving 53 percent of the votes cast (a total of 69,460,098 votes). Clinton never received more than 50 percent of the popular vote, earning only 43 percent in 1992 and 49.2 percent in 1996, while Bush earned only 47.9 percent in 2000 (and lost the popular vote to Al Gore) and 50.7 percent in 2004. Since 1960, Obama’s 53 percent of the popular vote represents a feat achieved only by Richard Nixon in 1972 (60.7 percent), Ronald Reagan in 1984 (58.8 percent), and George H.W. Bush in 1988 (53.4 percent). Moreover, Obama’s vote total stems from 56.8 percent of the voting-age population, the highest voting turnout of the population since 1968. As a result, according to Gallup, the week Obama took the oath of office, his popularity (also known as the approval rating as determined by the answer to the question, “Do you approve of the job the president is doing?”) stood at 67 percent. Obama was more popular on day one than almost every president taking office in the last forty years.1 However, Obama’s popularity did not last. After just one year in office, Gallup noted the bursting of the president’s euphoric bubble. On January 20, 2010, Gallup released a poll, along with analysis asserting, “President Barack Obama begins his second year as president with 50% of Americans approving and 44% disapproving of his overall job performance… Obama’s initial approval rating in his second year as president is among the lowest for elected presidents since Dwight Eisenhower. Only Ronald Reagan—who, like Obama, took office during challenging economic times—began his second year in office with a lower approval score.”2 What happened to Obama’s popularity among Americans? How does a president go from the most popular on Election Day to among the least popular in only one year? Was it simply the bad economy, as Gallup suggests? Initially, scholars believed time spent in office was enough to cause presidential approval to decline. The longer presidents spent in office, the bigger the “coalition of minorities” became.3 The coalition of minorities represents those individuals who did not get what they wanted on the issues confronted by the president during his tenure. A study of sixty-five years and twelve presidents reveals that “approval typically falls five points in a president’s second year. Only two of the last eight presidents have avoided a second-year slump in approval rating.”4 However, Obama’s approval declined more significantly than the ratings of most of his predecessors. As a variable, time in office lacked specificity because it did not reflect context. Scholarly analysis revealed that events and conditions like recessions, failed treaty talks, or losing on an agenda item could specifically detract from presidential approval.5 However, the economy is a peculiar drag on presidential approval, as John Mueller noted: “An economy in slump harms a president’s popularity but an economy that is improving does not seem to help his rating.”6 Obama took office in the midst of the worst economic period in American history since the Great Depression. Arguably, Obama’s approval rating declined in response to his approach to the economy. However, the economy works in combination with other variables, as George W. Bush dealt with the same economic downturn as Obama, but his approval rating averaged twenty points lower.

The Presidency and Public Opinion 73 Domestic and foreign events can also influence attitudes about presidential performance.7 The president’s handling of foreign events or foreign and domestic crises typically produces the strongest increase to a president’s approval rating. Scholars call the rise in approval the “rally around the flag effect.”8 A Gallup poll taken September 7–10, 2001 gave George W. Bush a 51 percent approval rating. A poll on September 14–15, 2001 marked the president’s approval at 86 percent. Bush’s stratospheric rise in approval culminated on September 21–22, 2001 at 90 percent. A horrific, catastrophic, and deadly event does not seem to suggest great job performance; yet whenever a challenging event or crisis faced the nation, the American public typically responds by signaling support the only way it can, via the approval rating. Media coverage also significantly influences the public’s response to the president. Richard A. Brody considered public opinion a two-step process: opinion elites classify and categorize events and then the media transmit those interpretations to the mass public.9 The approval rating, as an evaluation of the president, stems from events but is also driven by elite interpretation of those events. For Obama, the media influence on approval ratings is not good news. The relationship between the media and presidents used to be one of mutual dependency: Presidents needed to disseminate information and media organizations needed information to disseminate. In the twenty-first century, media organizations are no longer friendly, nor are they dependent. Instead, media coverage reflects increased negativity and cynicism.10 External events and intermediating institutions are not the only factors affecting the public’s appraisal of the president. An individual’s own attitudes also help determine presidential approval. Partisanship, gender, race, and all manner of socioeconomic factors influence performance evaluations of the president. Differences in evaluation by individuals stem from two different sources: experience and the importance of the experience. Blacks and whites may experience a down economy differently, while men and women might weigh the importance of having a family leave policy differently. In elections, individual factors produce effects like the gender gap. Since 1980, women have voted more frequently and differently than have men. A gendered vote emerged in response to Ronald Reagan’s presidential campaign and the distinction of voting for “guns” versus “butter.” Since 1980, both scholars and candidates noted that women are more likely to vote Democratic. The gap traditionally hovers between 4 and 8 percent.11 It reached a high of 11 percent in 2000, falling to 7 percent in 2004. In 2008, President Obama received eight million more votes from women than men, a 6 percent difference.12 In office, his approval rating reflects a similar gap. Gallup finds a “6-point average weekly gender gap” with a high of an eleven-point difference between the genders.13 President Obama’s approval rating most clearly reflects the hyper-partisanship of the last twenty years. In March 2010, Obama received a 12 percent approval rating by Republicans. Eighty-eight percent of Democrats in the same poll approved of the president’s performance while 44 percent of Independents approved of Obama. The Democratic National Committee tried to mitigate this enormous

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difference in political evaluation by suggesting, “Only 20 percent of Americans admit to being Republicans any more, claimed the Democratic National Committee in an e-mail to reporters.”14 In March 2002, his second year in office and still buoyed by the unifying effect of September 11, George W. Bush had an approval rating of 80 percent. Within that 80 percent, the differential stemming from partisanship was muted: Bush’s popularity was 31 percent lower from Democrats and 17 percent lower from Independents than from Republicans. However, in September 2008, partisan differences sharpened, producing an overall approval rating of 27 percent for Bush. Amongst Democrats, Bush’s approval rating was 3 percent, sixty-one points lower than Republican views. The Independents were slightly more approving, at 22 percent, but still 42 percent less than Republicans.15

Presidential Power and Job Approval After the landmark passage of the health care reform bill, President Obama’s approval rating inched up to 51 percent, still significantly lower than the 67 percent he received on Inauguration Day. The approval rating provides an explicit weekly critique of presidential performance based on the public’s view of events, experienced through the media and an individual’s own attitudes. The questions for students of the presidency are, does it matter that this evaluation is out there? Is it significant that by asking questions of 1,500 to 3,000 individuals that there exists a measure of the president? And, what meaning does the measurement have within the political system? There are two distinct views of the public as a source of presidential power. The first originates with Richard Neustadt’s view of presidential power.16 Neustadt considers the public a secondary source of power, a means to soften up the true avenues to presidential power. He argues that mass opinion is important only because elites pay attention to it; the public’s view of the president matters because elites anticipate public reaction to the president. It is this anticipation that factors into presidential efforts to persuade elites, and for Neustadt, persuasion is presidential power. The second avenue is the dominant view; it begins with the work of Elmer Cornwell, and culminates in Samuel Kernell’s view of leadership as discussed in his book Going Public, with other important works on this topic as well. In Presidential Leadership of Public Opinion, Cornwell argues that with few constitutional tools to influence the course of policy and events, “the President can and does and probably should shape popular attitudes, and not just respond to them passively.”17 For Neustadt, public evaluations of the president simply exist and therefore influence the mood surrounding institutional bargaining. Cornwell implicitly rejects the idea that approval of the president is an independent evaluation of the president, tangentially related to the system. Paul Brace and Barbara Hinckley contend that presidents, as strategic actors, do not accept a passive role in public evaluations of their efforts. In fact, they argue that the ability to measure approval ratings produced a dependence on the polls.18 Brace and Hinckley term this dependence a follower presidency, in which

The Presidency and Public Opinion 75 presidents respond with action to the fluctuations in their ratings. The preeminent presidential goal then is not re-election, a legacy, or good public policy, but rather the achievement of high approval ratings, because the ratings influence everything else.19 The response to these external cues (approval ratings) drives presidential behavior. Presidents universally reject followership as the principle factor guiding their behavior. In an interview with Martha Raddatz on ABC News on March 19, 2008, Vice President Dick Cheney summed up what most presidents and their staffs believe: RADDATZ: Two thirds of Americans say it’s [the War in Iraq’s] not worth fighting. CHENEY: So? RADDATZ: So? You don’t care what the American people think? CHENEY: No. I think you cannot be blown off course by the fluctuations in the

public opinion polls. There has, in fact, been fundamental change and transformation and improvement for the better. That’s a huge accomplishment.20 The press and blogosphere universally mimicked Raddatz’s reaction, implicitly arguing that in a representative democracy, the White House should care what the public thinks. Cheney’s comment, while politically insensitive, reflects the constitutional design that allows elected officials to ignore public opinion between election cycles. Yet, Brace and Hinckley insist, all presidents must accept tradeoffs, since acting without regard for public opinion can make the approval rating suffer.21 In particular, Brandice Canes-Wrone argues that presidents chose their policy positions and strategies focused on policies already consistent with mass opinion.22 The approval rating appeared most significant as a resource or source of power for the president to achieve his legislative program—what Kernell termed “going public.” When going public, presidents present their policy desires to the public in order to influence Congress.23 Neustadt claimed public opinion influenced the environment for bargaining; a popular president will have more leverage to bargain with members of Congress. In contrast, Kernell argues that public support preempts bargaining and forces congressional compliance.24 Kernell contends that the need for members of Congress to be re-elected forces acceptance of a popular president’s desires. Thus, the popularity rating is a source of significant power, or pressure, to achieve legislative success. A popular president, in Kernell’s theory, will more likely be a successful president. Analysis of going public as a strategic mechanism for achieving legislative success challenges the idea of the approval rating as a source of presidential power. For the presidential approval rating to reflect a source of power, the president needs to be able to influence the rating. In order to influence presidential approval, the president needs to communicate his desires directly or indirectly. The public then needs to be receptive or at least attentive to the president. George C. Edwards III argued that the president may have been speaking to the nation, but the nation was not listening to the president and was certainly not acting on any presidential requests.25

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For the first year and a half of his tenure, Obama’s approval ratings averaged around 50 percent. A 50 percent approval rating appears to be a weak tool to provide pressure. If 50 percent approve, then 50 percent disapprove, and neither side represents a ringing endorsement for a member of Congress to support a presidential policy. However, the public approves of Obama by a much wider margin than they do Congress. In fact, President Obama’s ratings look extraordinary in comparison to those of Congress, which hit a low of 16 percent approval in March 2010. Thus, if presidential popularity is a predictor of retrospective voting, then the popularity ratings suggest a mild amount of protection for beleaguered members of Congress, at least from the 30 percent who approve of Obama but do not approve of Congress. But even above 50 percent, if presidential approval is the key weapon in a president’s arsenal to pressure Congress, then the president is in trouble. Congress is only mildly responsive to these ratings.26 Edwards finds that presidential popularity influences congressional voting only “at the margins,” meaning more traditional congressional explanations for voting behavior dominate decisions (e.g. constituency demands, leadership demands, party demands). Mark Peterson evens finds that very high levels of approval reduces the likelihood of a president achieving a particular policy item.27 Congress is attentive to the president’s agenda as a list of priorities but not as specific calls to action.28 The president’s approval rating does have an effect on congressional elections; low ratings of the president generally signal poor re-election rates for members of his party. However, for voting decisions, the threat from the presidential approval rating appears to dissipate. The approval rating is a national measure and, as a result, is of lesser meaning to an individual member of Congress, particularly while voting on policy.29 Party line voting on the bulk of the presidential agenda in the first year and a half of Obama’s tenure suggests that partisanship matters equally as much, if not more, to members of Congress.

Presidential Power and Public Opinion Up to this point, the public’s voice has appeared represented only by the approval rating. Although the approval rating is a virtually continuous measure of the public’s opinion, the question itself is an extremely flawed and limited picture of what the public thinks. The rating question asks the public, “Do you approve of the job the president is doing?” The answer to that question is along a three- or fivepoint scale: approve, disapprove, don’t know; or strongly approve, approve, disapprove, strongly disapprove, or don’t know. Moreover, the question is relatively ambiguous as it means different things to different people and different things across presidencies. Does approving of the president refer to personal approval or job approval? Bill Clinton received relatively positive approval ratings, including a rating of 63 percent during the height of the Monica Lewinsky scandal in 1998. The public approved of the job the president was doing, despite rejecting his personal behavior. For a respondent who answers “don’t know,” what exactly does the individual not know: whether he/she approves or disapproves, or enough to

The Presidency and Public Opinion 77 answer the question? The answer to that single question does not explicitly explain for the president or anyone else why the respondent approves or disapproves. For presidents to use public opinion strategically and to gain an advantage from public opinion, they need to know something about it that no one else knows, or they need to know how to benefit from the information. For this reason, presidents created a White House polling operation.30 Presidents, through their party organizations, paid significant sums of money in order to design the questions asked of the public.31 Prior to the presidency of Franklin D. Roosevelt (FDR; 1933–1945), the parties controlled political information, particularly what voters wanted from government. The party organizations coordinated attitudes and funneled wants and needs from the local ward to Congress and the president. Robert Eisinger and Jeremy Brown argue that the interest in and attention to public opinion polling stemmed from a desire to achieve political autonomy from the party.32 “Emil Hurja’s polls for the [Democratic National Committee] and Hadley Cantril’s polling for FDR signified the birth of presidential polling.”33 Initially, it was too expensive and polling was too difficult to provide more than infrequent glimpses into public attitudes. Moreover, the fear of perception shrouded the Roosevelt White House’s efforts to gather opinions from the public and the media; a president who polled might have looked lacking in leadership. Polling did not become an institutional feature of the presidency until the Richard Nixon administration.34 The Harry Truman and Dwight Eisenhower administrations polled the public rarely. The John F. Kennedy and Lyndon Johnson administrations polled more frequently, primarily for elections, but also for governing.35 In stark contrast, the administrations that followed, from Nixon through Obama, have all devoted substantial time, money, and attention to a White House public opinion apparatus.36 The rise of the presidential polling operation mirrored the change in approach to presidential campaigning, from party centered to candidate centered. Candidatecentered behavior reflected an individual focus rather than a party focus—“Vote for me because I am me,” rather than “Vote for me as the party’s choice.” The domination of an individually centered approach requires the candidate’s campaign to employ a means to ascertain “why me” over other candidates. As candidate-centered behavior led to victory, individually centered rather than party-centered governing emerged at the White House. Scholars and pundits tracked the shift from party to individual and termed the change “campaigning to govern” or “the permanent campaign.”37 Party-centered governing employs the party’s agenda as the focal point of legislative efforts; president-centered governing places the individual president’s needs at the fore. An individual president seeks re-election and a legacy, both of which are separate from party goals and needs. However, it was not simply the change in attitude that suggested to presidency watchers that a new approach to leadership existed; it was the change in behavior. Since 1968, presidents no longer abandon their campaign staff and campaign tools when they take the oath of office. Campaign staff, particularly pollsters and

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consultants, began working for the president as part of the White House staff in large numbers. Moreover, these former campaign staffers direct their campaign expertise to White House decision-making. All presidents since 1968, including Nixon, Gerald Ford, Jimmy Carter, Reagan, George H.W. Bush, Clinton, and George W. Bush, directed their top staff to be attentive to public opinion.38 Interestingly, the staffers who did not straddle the political and policy line, like the cabinet secretaries and other purely policy-driven offices, like the Council of Economic Advisors, did not employ public opinion data.39 The perception problem regarding the exercise of leadership, which presidents as early as FDR were aware of, makes determining the use of polls by a sitting president difficult to specify. However, it is possible to compare what is known about the Obama White House employment of polls with the patterns of past White Houses. Previous presidents were reluctant to admit to poll usage, fearing the appearance of followership.40 President Obama’s rhetoric is interestingly illustrative of poll usage and simultaneously dismissive of it. In the first year and a half of his administration, Obama mentioned public opinion polls thirty-five times. Mentioning polling twice a month seems very open, particularly in comparison to the previous presidential views. However, Obama spoke and/or issued a statement more than 887 times. He mentions polling in .03 percent of his public utterances.41 Despite the infrequency, the mentions of public opinion polling are significant and reflective of the employment of polls at the White House. Obama specifically, albeit humorously, acknowledges the presence of the polling apparatus. For example, this is what Obama said during remarks at a Democratic National Committee fundraiser and question-and-answer session on February 4, 2010: Now, I—you heard me at the State of the Union—I didn’t take this on because it was good politics. I love how the pundits on these cable shows, they all announce, “Oh, boy, this was really tough politically for the president.” Well, I’ve got my own pollsters; I know—[laughter]—I knew this was hard. I knew seven presidents had failed. I knew seven Congresses hadn’t gotten it done. You don’t think I got warnings, “Don’t try to take this on”? [laughter] I got those back in December of last year. The Obama White House polling operation looks very much like the Obama campaign operation, as is typical of most White Houses.42 Moreover, the Obama polling operation maintained the same political relationship as the previous White Houses, controlled by the administration but staffed and paid for by the national party committee of the president.43 According to Ben Smith of Politico, Obama’s polling operation “combines elements of the Clinton and Bush models. He is polling more than Bush—a bit less than once a week.”44 The frequency of polling and the money spent on polling has long been of interest to scholars,45 but the findings reveal little about usage. Comparatively speaking, determining that one president purchased more polling data than another and determining when polls are employed reveals White House intent and belief about the role of public opinion. However, to determine how

The Presidency and Public Opinion 79 and, more importantly, if public opinion influences presidential decision-making requires a means to get inside the “black box” of White House decision-making. Investigations into that “black box” reveal that the White House uses public opinion polls to track and monitor their constituency support between election and re-election, to design rhetorical outreach and “craft” appeals to the public, and to focus the agenda but not to make specific policy choices.46 While it is currently impossible to use the same scholarly techniques (coding of internal White House documents) to determine Obama White House polling usage, there have been media discussions of the employment of White House polling. The press consideration of the polling operation, plus the President’s own references to the polls, provide a clear if not complete picture of the apparatus. As an outgrowth of political campaigns, the White House primarily employs polls in relation to constituency and re-election. In January 2010, Obama’s former campaign manager, David Plouffe, one of the few top campaign staffers not employed in the White House, returned to work for Obama. Plouffe’s new responsibilities include management of the political message, management of the 2010 midterm elections, and the White House polling operation.47 Plouffe returned to the Obama fold in the wake of the loss of Independents in the 2009 New Jersey, Virginia, and Massachusetts special elections. In addition, Obama himself talked about the constituency monitoring that the polling operations perform in a daylong meeting on health care reform with Democrats and Republicans at the White House on February 25, 2010: And as I said, I hear from constituents in every one of your districts and every one of your states. And what’s interesting is, actually, when you poll people about the individual elements in each of these bills, they’re all for them. So you ask them, do you want to prohibit pre-existing conditions? Yes, I’m for that. Do you want to make sure that everybody can get basic coverage that’s affordable? Yes, I’m for that. Do you want to make sure that insurance companies can’t take advantage of you and that you’ve got the ability [. . .] to fire an insurance company that’s not doing a good job and hire one that is—but also, that you’ve got some basic consumer protections? Yes, we like that. The more significant and potentially concerning use of public opinion by the president is the use of polls to determine how to get the public behind the president’s preferred policy positions. If, as Kernell argues, the public’s pressure on Congress for the president’s choice is the exertion of presidential leadership, then the president needs to get the public on board. However, in contrast to Kernell’s argument, presidents do not rely on the approval rating as the source of pressure; presidents want support for the specific policy choice and they use the polls to attempt to achieve it.48 The Reagan White House famously changed the name of its satellite weapons protection system from the Strategic Defense Initiative (SDI) to Star Wars after the polling apparatus demonstrated quite clearly that the public did not support

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the project when termed SDI but did support it when termed Star Wars.49 The lesson learned for all subsequent White Houses: Terminology matters. Ben Smith, in his Politico article, noted that press reports found evidence of similar behavior from the Obama administration: Elements of Obama’s approach bear the hallmarks of message testing, like the introduction of the words “recovery” and “reinvestment” to rebrand the “stimulus” package, and aides said the polling has focused almost entirely on selling policy, not on measuring the president’s personal appeal. A source familiar with the data said a central insight of more recent polling had been that Americans see no distinction between the budget and the popular spending measures that preceded it, and that the key to selling the budget has been to portray it as part of the “recovery” measures.50 However, in language eerily similar to previous White House officials, Press Secretary Robert Gibbs argued, “Not unlike news organizations, we poll public attitudes about where the economy is…. We’re not polling to see what should be in an economic-recovery plan.”51

Conclusion The U.S. Constitution provides a limited mandate for public involvement in the presidency. The public only indirectly votes for the president via the Electoral College. The modern creation of the means to measure public attitudes of all players and processes in American politics seemingly provides a more direct role for the public in the political sphere. On the surface, the presidential approval ratings provide a meaningful measure of public support for the presidency and his policy; in other words, it is a temperature rating of the president: Is he hot or not? A president with high approval seemingly owns the political process; he will be re-elected, and he will get what he wants from Congress. Unfortunately for the president, the public is often harshly judgmental, moved by factors outside the president’s control and determinedly resistant to persuasion. The public represents potential power to be harnessed as well as a dangerous threat to be feared. A popular president is not always legislatively successful and an unpopular president not always doomed to legislative failure. After all, as President Obama watched his approval rating plummet from an all-time high of 69 percent to a low of 45 percent, he managed to achieve arguably the single most significant piece of domestic legislation in 75 years: health care reform.

Notes 1 Only President Ford had a higher popularity rating, 71 percent, as the nation responded positively to Richard Nixon’s resignation at the end of the Watergate affair. 2 “Obama Starts 2010 With 50% Approval,” http://www.gallup.com/poll/124949/ Approval-Obama-Starts-2010-Shaky-Spot.aspx, April 25, 2010. 3 See John Mueller, “Presidential Popularity from Truman to Johnson,” American Politi-

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4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

27 28

cal Science Review 64.1 (1970):18–34; and War, Presidents and Public Opinion (Baltimore: Lanham, 1973). “Approval Typically Falls 5 Points in a President’s Second Year,” http://www. gallup.com/poll/125294/Approval-Typically-Falls-Points-President-Second-Year. aspx, April 15, 2010. See Samuel Kernell, “Explaining Presidential Popularity,” American Political Science Review 72.2 (1978):506–522. Mueller, War, Presidents and Public Opinion, 215. See Paul Gronke and Brian Newman, “FDR to Clinton: Mueller to ?: A Field Essay on Presidential Approval,” Political Research Quarterly 56.4 (2003):501–512. Mueller first used the term in 1973, now it is conventional wisdom. See Richard Brody, Assessing the President: The Media, Elite Opinion and Public Support (Palo Alto, CA: Stanford University Press, 1991). See Jeffrey E. Cohen, The Presidency in the Era of 24-Hour News (Princeton, NJ: Princeton University Press, 2008). See Lori Cox Han, Women and American Politics: The Challenges of Political Leadership (Boston: McGraw Hill, 2007), 48. “Obama and the Women’s Vote,” http://us-elections.suite101.com/article.cfm/ obama_and_the_gender_gap, April 17, 2010. “Obama Weekly Job Approval Average at 48%, Tied for Lowest,” http://www.gallup. com/poll/126701/Obama-Weekly-Job-Approval-Average-Tied-Lowest.aspx, April 25, 2010. “Democrats Claim Only 20 Percent of Americans Call Themselves Republicans,” http:// www.politifact.com/truth-o-meter/statements/2009/oct/16/democratic-nationalcommittee/democrats-claim-only-20-percent-americans-call-the/, April 25, 2010. “Presidential Job Approval Center,” http://www.gallup.com/poll/124922/Presidential-Job-Approval-Center.aspx, April 25, 2010. See Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan, rev. ed. (New York: Free Press, 1990). See Elmer E. Cornwell, Jr., Presidential Leadership of Public Opinion (Bloomington: Indiana University Press, 1965), 6. See Paul Brace and Barbara Hinckley, Follow the Leader: Opinion Polls and Modern Presidents (New York: Basic Books, 1992). Ibid. “ABC News Full Interview: Vice President Dick Cheney,” http://abcnews.go.com/ WN/Vote2008/story?id=4481568&page=1, August 26, 2010. Ibid. See Brandice Canes-Wrone, Who Leads Whom? Presidents, Policy, and the Public (Chicago: University of Chicago Press, 2006). See Samuel Kernell, Going Public: New Strategies of Presidential Leadership, 4th ed. (Washington, DC: CQ Press, 2007). Ibid. See George C. Edwards III, On Deaf Ears: The Limits of the Bully Pulpit (New Haven, CT: Yale Univesity Press, 2003). See Jon R. Bond and Richard Fleisher, The President in the Legislative Arena (Chicago: University of Chicago Press, 1990); George C. Edwards III, At The Margins: Presidential Leadership of Congress (New Haven, CT: Yale University Press, 1989); and George C. Edwards III, “Aligning Tests with Theory: Presidential Influence as a Source of Influence in Congress,” Congress and the Presidency 24 (1997):113–130. See Mark Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (Cambridge, MA: Harvard University Press, 1990). See Jeffrey E. Cohen, Presidential Responsiveness and Public-Policy Making (Ann Arbor: University of Michigan Press, 1997); and “Presidential Rhetoric and the Public Agenda,” American Journal of Political Science 39:1 (1995):87–107.

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29 See Stephen A. Borrelli and Grace L. Simmons, “Congressional Responsiveness to Presidential Popularity: The Electoral Context,” Political Behavior 15:2 (June 1993): 93–112. 30 See Lawrence R. Jacobs and Robert Y. Shapiro, “The Rise of Presidential Polling: The Nixon White House in Historical Perspective,” Public Opinion Quarterly 59:2 (Summer 1995):163–195; Lawrence R. Jacobs and Robert Y. Shapiro, Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness (Chicago: University of Chicago Press, 2000); Robert Eisinger, The Evolution of Presidential Polling (New York: Cambridge University, 2003); Diane J. Heith, Polling to Govern: Public Opinion and Presidential Leadership (Palo Alto, CA: Stanford University Press, 2004); and Kathryn Dunn Tenpas, Presidents as Candidates: Inside the White House for the Presidential Campaign (New York: Garland, 1997). 31 See Heith. 32 See Robert Eisinger and Jeremy Brown, “Polling as a Means Toward Presidential Autonomy: Emil Hurja, Hadley Cantril and the Roosevelt Administration,” International Journal of Public Opinion Research 10:3 (1998):237–256. 33 Ibid., 253. 34 See Heith. 35 See Jacobs and Shapiro, “The Rise of Presidential Polling,” 163–195. 36 See Heith and Eisinger, for a discussion of the evolution of the polling apparatus. 37 See Hugh Heclo, “Campaigning and Governing: A Conspectus,” in The Permanent Campaign and Its Future, eds. Norman Ornstein and Thomas Mann (Washington DC: Brookings Institution Press, 2000); and Sidney Blumenthal, The Permanent Campaign: Inside the World of Elite Political Operatives (Boston, Beacon Press, 1980). 38 See Heith and Kathryn Dunn Tenpas and Jay McCann, “Testing the Permanence of the Permanent Campaign: An Analysis of Presidential Polling Expenditures, 1977–2002,” Public Opinion Quarterly 71:3 (2007). 39 See Heith. 40 Ibid.; see also Eisinger. 41 “The Public Papers of the President,” http://www.presidency.ucsb.edu/ws/index. php, accessed May 1, 2010. 42 The George H.W. Bush White House is an exception; they spent less money and employed fewer consultants and staffers than other administrations. See Heith, Polling to Govern. 43 See Heith and Kathryn Dunn Tenpas, “Campaigning to Govern: Presidents Seeking Reelection,” PS: Political Science and Politics (April 2003), 199–202. 44 See Ben Smith, “Meet Obama’s Pollsters,” Politico, accessed at http://www.politico. com/news/stories/0409/20852.html, August 26, 2010. 45 See Kathleen Shoon Murray and Peter Howard, “Variation in White House Polling Operations: Carter to Clinton,” Public Opinion Quarterly 66:4 (2000):527–558. 46 See Heith and Jacobs and Shapiro. 47 Chris Cillizza, “Former Obama Campaign Manager to be White House Adviser,” The Washington Post, January 24, 2010, p. A8. 48 See Heith and Jacobs and Shapiro. 49 See Heith. 50 Smith, “Meet Obama’s Pollsters.” 51 Mark Blumenthal, “New Flash: Obama Using Polling Data,” http://www.pollster. com/blogs/news_flash_obama_using_polling.php, May 1, 2010.

6

The Presidency and Congress Brandon Rottinghaus

Many scholars studying the policy-making institutions in the United States have commented on Edward S. Corwin’s infamous explanation of shared Constitutional powers as “an invitation to struggle.”1 In perhaps no other venue is the interconnectedness of the Constitution on display than in matters involving joint executive-legislative policy making. The shared power to create and implement policy is at the center of the relationship between the authorities vested in Articles I and II of the Constitution. Article I (governing legislative actions) gives the legislature specific powers to regulate finances, provide for defense, and, generally, “make all laws” necessary for carrying out the execution of their powers. Article II (governing executive actions) is vaguer but provides that “executive powers” are “vested” in the president, and allows control of executive departments, the ability to make recess appointments, and, with the advice and consent of the Senate, make appointments. Similarly, on foreign affairs, Article I provides that Congress has the ability to regulate commerce with foreign nations while Article II provides the executive branch with the ability to negotiate treaties (concurrent with Senate approval) and the sole power to be “commander-in-chief.” This focus on the formal aspects of the congressional-executive relationship has been fruitful. However, several works have treated the president as the geometric center of the legislative system. Recent theoretical research on the presidency has suggested that scholars should move away from thinking of the president as an “input” in the system, and should instead develop the idea that lawmaking is a “two-way street”;2 that is, the president is influenced by Congress in pursuing his agenda in a range of situations. In particular, Charles Jones views the relationship between the president and Congress as “diffused responsibility” with the policy success and failure of the American political system inextricably linked.3 Mark Peterson also argues “treating the president and Congress as a decision-making “system,” furthermore, opens up new opportunities for understanding their collective decisions.4 Such an analysis could more fully develop Richard Neustadt’s concept of the president and the legislature as “separated institutions sharing powers.”5 The shared powers drawn in the Constitution build in elements of intentional friction as a means to invigorate debate, ensure careful deliberation, and check institutional powers. This relationship is re-examined in this chapter with an eye

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toward understanding contemporary trends in executive-legislative relations as a shared “struggle.” In particular, general trends in executive-legislative relations, the shared power of making political appointments, the joint powers to create and carry out foreign policy and national security, and “shared” presidential unilateral powers (executive orders, proclamations, and executive memoranda) are explored. Yet, consistent with the scope of this volume, this chapter will draw heavily on more recent academic literature to summarize “what we know” in the context of recent debates and will draw on examples from the Obama administration to illustrate key points.

Presidential Relations with Congress Generally, the farther apart the president and Congress (or the president’s and Congress’s parties) are, we are less likely to see political agreement. Certain congressional political variables, such as a partisan majority in one or both branches of Congress or more members of the president’s party in Congress, are generally associated with greater fluidity in the president’s agenda passing.6 Presidential support from party loyalists in both chambers is often the determining factor predicting presidential success in Congress, even considering other potentially important factors like leadership skills and presidential popularity.7 Similarly, the margin of the president’s party in Congress is shown to be a factor in predicting the (usually fewer) number of veto challenges issued by the president.8 Even in instances where separate parties control the executive and legislative branches (“divided government”), greater unity of party is associated with a more easy translation of bills into law, while less party unity is associated with a more cumbersome process.9 Presidents are likely to veto legislation not necessarily simply because of divided government but rather pursuant to objectionable legislation from Congress.10 Ironically, presidential attempts to lead the public or Congress may itself exacerbate political polarization.11 Related to this point, divided government could cause more friction in policy making. Many analysts have commonly associated this relationship with legislative gridlock. The growth of political partisanship has made legislating in modern times more difficult.12 The impact of divided government has recently been challenged, however, in that some scholars argue that divided government is commonly associated with inefficient and irresponsible government, while others argue that this institutional phenomenon has no effect on legislative outcomes.13 George C. Edwards III et al. found that presidents oppose significant legislation more often under divided government and that much more important legislation fails to pass under divided government than under unified government. Thus, there is at least evidence that conflict reigns in legislative-executive battles where the parties are split.14 Yet conflict resulting from divided government may be overstated. Other evidence contradicts the hypothesis that gridlock results from divided government. For example, Mark Peterson looks more closely at how Congress responds to presidential initiatives (with conflict, cooperation, or compromise) and argues

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that outright conflict over the president’s programs is found to be less prevalent than previous case studies have suggested, occurring on about one third of the president’s initiatives. Consensus and compromise were more frequent outcomes. Peterson reports that over 54 percent of presidents’ domestic policy proposals received positive treatment.15 Yet, congruent with other studies, the more negative “contexts” challenges the president’s ability to work with Congress (such as decentralization of committees or the state of the economy). And, not surprisingly, if the president’s party has a majority in a chamber, the amount of conflict is reduced. Similarly, when policies are passed, they are usually passed as a result of a large and bipartisan coalition.16 As noted, recent scholarship has argued researchers should include additional variables when studying this relationship, including, “the importance of reciprocity between the president and members of Congress, the dynamic nature of political trade-offs between the two branches, and the impact of the kind of policy being considered in the strategy used by the White House and the Hill.”17 Recent evidence suggests that presidents adapt their strategies to accommodate concerns over congressional makeup. Presidents are able to use their executive policy expertise to influence committee stages, but only for issues that are technical or relatively noncontroversial.18 Presidents are also shown to develop their yearly domestic policy agenda in anticipation of the policy’s success or failure in Congress, specifically congressional political makeup and the federal budget deficit.19 Other research has suggested that the formal powers of the president, such as veto power, may be influenced by anticipating the actions of Congress.20 These results show that understanding how the branches work together is more useful than understanding how they battle each other. Barack Obama came into office with favorable majorities in both Houses of Congress. Table 6.1 shows the percentages of majority party control of each chamber for a president’s first year in office (shaded regions indicate when the president’s party controls the chamber)—this shows that his party holds almost 60 percent of the seats in both houses (59 percent in the House and 60 percent in the Senate). These majorities did not arrive in Washington with him; rather, Democratic majorities in Congress emerged in 2006 for the first time since Bill Clinton’s first year in office. However, although more co-partisans in Congress (ostensibly) support a president’s research agenda, Jimmy Carter and Clinton, both with unified government, found out that keeping a fragile coalition together is as challenging as battling the opposing party. Both Carter and Clinton had dissension within their own party on their economic and energy policies, causing consternation for their first years in office and their key legislative programs. Clearly, majorities in both houses of Congress give Obama a general advantage in pursuing his agenda. But, although beneficial to pursuing his legislative agenda, united opposition by the Republicans and threats of dissension by conservative Democrats make the White House’s job challenging. First on Obama’s agenda was a push for a multibillion-dollar economic stimulus package designed to jumpstart the sluggish U.S. economy. Among other items, the stimulus package included targeted tax cuts (rebates, an education tax credit, and homebuyers tax credits); additional spending on public roads, bridges, and schools; funding to modernize

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Brandon Rottinghaus Table 6.1 Percentage of Majority Party Seats in Congress in Presidents’ First Year in Office, 1969–2009 Seats President

House

Senate

Nixon Ford Carter Reagan G.H.W. Bush Clinton G.W. Bush Obama

58% 56% 67% 56% 55% 59% 50% 59%

58% 56% 61% 53% 60% 57% 51% 60%

Note: Data compiled by the author. Shaded boxes indicate when president’s party had a majority. Two Independents caucused with the Democrats (Senators Lieberman and Sanders) thus being counted in the majority.

health care records; and investment in alternative energy—a total spending package of almost $800 billion.21 And, although the president has shown himself to be a strong party leader, he must avoid “forms of administrative aggrandizement that alienate citizens from government; and . . . leadership strategies that threaten the independence and integrity of the party apparatus.”22 The president and the Democratic Party have yet to realize they are judged “on the pace of economic recovery and whether they pass significant health care reform.”23 In short, the president has a thin margin of success with which to campaign on in the 2010 midterms and 2012 presidential election. Yet even with the president’s calls for bipartisanship, selling his policies to Republicans would be a challenge. For example, even after attempts to sway particular members in the House, no Republican House member voted for the stimulus legislation. However, the White House was able to secure three critical Republican votes (Olympia Snowe, Susan Collins, and Arlen Specter, the latter of whom switched parties months later), which allowed the threat of a Republican filibuster to be limited. The continuing lack of bipartisanship is also an issue, especially when it comes to crafting large and complex legislation. President Obama’s supporters urged him “to stop seeking compromise with the Republicans, which seems wasted effort, and use Democratic votes alone to ram his flagship domestic project through Congress. It is not just the ‘netroots’ that are up in arms: On August 30 an editorial in The New York Times concluded ‘with considerable regret’ that the ideological split between the parties was too wide to bridge.”24 Comments from senators like Jim DeMint (Republican of South Carolina)—who said “If we’re able to stop Obama on this [health care reform], it will be his Waterloo; it will break him”—do not portend friendly relations for Obama in the 110th Congress. Indeed, the “postpartisan” approach favored by the president upon entering office gave way to partisan politics, especially on controversial policies such as the passage of the president’s health care reform legislation in March 2010, legislation that most Republicans (and many Democrats) voted against.25

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Appointment Process Most scholars argue that the White House largely controls the appointment process. These arguments are in line with a “presidency-centered” model of presidentiallegislative power sharing. As described above, this presidency-centered viewpoint emphasizes the president’s primary (and often determinative) role in the legislative process. Although the Federalist Papers describe the value of Senate compliance in appointments, Federalist No. 76 notes: “The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.” Indeed, the Constitution provides the president a “presumption of confirmation” that allows him to have an advantage in the nomination process.26 In extending this normative argument to the “administrative presidency,” Richard Nathan argues, “it is appropriate—in fact, desirable—for political chief executives to exert greater managerial influence over the bureaucracy.”27 Juxtaposed with the other branches of government, “the chief executive is in a much better position than a large group of people in a legislative body or the courts to give cohesive policy direction and guidance to the work of large public bureaucracies.”28 Empirically, as a result of these trends, scholars have found support for this presidency-centered theory, especially as it relates to presidential success in getting their nominees confirmed. G. Calvin Mackenzie finds that “nominations to federal offices are almost always approved. In an average year, approximately 97 percent of all nominations will be confirmed,” and incidents of rejection of “major nominations are exceedingly rare.”29 Others find that the higher up the position (labeled “first tier” for cabinet positions and agency heads), the more quickly the president’s nominee is confirmed, suggesting congressional deference. The Senate is found to consistently defer to the president on most types of confirmation decisions, adding weight to the idea that presidents prevail in appointments.30 The same scenario is largely accurate for judicial nominees, especially to the Supreme Court, where a vast majority of the president’s appointments are confirmed.31 This pattern of deference suggests considerable presidential autonomy in getting his nominees confirmed. This theory has been tested extensively in relation to presidential appointment and Senate confirmation of District, Circuit, and Supreme Court nominations. Much of this literature assumes that the president’s nominees are of his own design, often by ideology or personal connection to the president.32 Other works utilize data concerning the length of time nominee-designates wait to be confirmed by the Senate, with the presumption that these individuals are largely picked by the president.33 The focus in the literature on the Senate’s right to first refusal (“senatorial courtesy”) further presumes that they play a reactive role as a veto player rather than an agenda setter.34 Christine Nemacheck conducts an interesting analysis of congressional endorsements of Supreme Court nominees from President Hoover to Bush, although she only focuses on judicial offices at

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the highest level.35 Still other works anecdotally argue that members of Congress submit their own pressure for patronage after a transition to a new president, but they do not empirically test these claims.36 But, on the other hand, the legislature has a clear interest in and resources to assist the White House in making political appointments. Michaels argues “from the beginning of the Republic, presidents, having few alternate sources and limited time and staff resources, relied on political allies close to them, such as members of Congress, personal acquaintances, or party leaders for suggestions for appointments.”37 In addition, members of Congress (especially the Senate, who are to confirm many nominees) have particular political preferences that presidents take into account when evaluating whether or not to confirm an individual to an agency.38 This phenomenon is not only relegated to the members of the Senate, however; those in the House of Representatives also have “a direct interest in appointments to individual offices.”39 Indeed, the White House may also find the process of staffing so many positions daunting and may rely on help from Congress. Richard Waterman notes that, with a large number of positions to fill, “presidents may rely on members of Congress to help them select individuals for important positions.”40 The sheer volume of presidential commissions, executive committees, boards of directors, advisory councils, and hundreds of other smaller offices makes it difficult for the White House to staff all of these offices without help from Congress. This is especially true during the presidential transition and when Congress creates new boards, councils, or commissions during the legislative term.41 Congress’s role (especially the Senate’s) in the appointment and confirmation process has been growing as a result of the centralization attempted by presidents and political factors that engender political polarization.42 Christopher Deering argues that the Senate’s attention to presidential nominations has been rising and the time spent evaluating nominees has increased because “a period of divided party government, political scandals, increases in committee and personal staff, and evolutionary changes in the Senate’s mode of operation have combined to foster greater concern for its confirmation responsibility.”43 Congress has also been shown to have a significant influence in the appointment-nomination process.44 This comports with recent scholarship that suggests that Congress and the president work together on nominations so as to not test the public’s patience for delay.45 Therefore, to avoid complications, the president must work with Congress in this process. Indeed, when the process has been politicized, it has produced somewhat routine (but primarily high-profile) delays in the process, causing consternation to several scholars.46 It is clear that Congress shares the political power of appointment and confirmation, yet we still know little about the role that members of Congress play in shaping the pre-appointment phase of the appointment process. For instance, when presidents pay heed to those appointment or nomination requests from members of Congress, do they do so based upon party affiliation (which signals efforts to appease the president’s allies), ideology (which signals proximity to presidential preferences), or other factors, such as electoral connections or

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legislator resources? Or do presidents ignore Congress and their party to staff according to their own agenda? In two recent works the important role that members of Congress play in the appointment process is examined. Several factors related to the number of successful requests by members of Congress during the Eisenhower and Ford administrations, including legislator resources, Senate membership, and those closer ideologically to the president.47 In explaining who was nominated to federal courts, the characteristics of the nominee matter more than the characteristics of the nominator, with the party affiliation of a nominee being the strongest predictive factor. Institutional characteristics are more prevalent at the confirmation stage, where the Senate relied more heavily on its members and the judicial experience of nominees than did presidents in nominating them.48 These results imply that presidents tend to pursue their own interests when staffing the executive branch, except for judicial posts, for which they tend to heed Congress’s will. Where is the balance of executive-legislative power with regards to nominations likely to fall during the Obama administration? Perhaps no better evidence is found that Congress, and the media, have an important say in the appointment and confirmation process as in President Obama’s first 100 days in office. Seven months into his presidency, fewer than half of his top appointees were in place: 43 percent of 500 senior policy-making positions requiring Senate confirmation were filled.49 The length of the vetting process and the growing delays in Congress reflecting political battles have increased the length of vacancies. Part of the delay is also the political process—after several failed nominations, including high-profile positions for Secretary of Commerce, Secretary of Health and Human Services, and Chief Performance Officer of the Office of Management and Budget, the White House tightened the vetting process and created more strict criteria that would let its nominees pass congressional muster. Although a minority in the House and Senate, Republican lawmakers have attempted to retain some say in the appointment-nomination-confirmation process.50 For example, early in President Obama’s term, all 41 Republican senators signed a letter urging him to consult with them about whom to nominate, and to renominate certain individuals nominated by George W. Bush who were not given the chance for confirmation.51 The Obama administration was criticized by Republicans in Congress for its use of “policy czars” to advance his agenda. These individuals are “special advisers”—technically, chairs of White House advisory boards, special envoys, and Cabinet agency deputies who are asked by the president to guide high-priority initiatives.52 For instance, on domestic policy, the “faith-based czar” heads the White House’s Office of Faith-Based and Neighborhood Partnerships, and, on foreign policy, Richard Holbrooke serves as the special envoy for Afghanistan and Pakistan (and is called the “intelligence czar”). Critics claim that the White House uses these appointments to circumvent the normal appointment process, while the White House argues that these positions have existed for (in some cases) decades, and that the president has the power to appoint individuals who are tasked with helping him govern the executive branch.53

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Such interbranch skirmishes led the administration in March of 2010 to use its recess appointment power, over the objections of Republicans in the Senate, to temporarily appoint individuals whom the Senate failed or refused to confirm.54 Presidents also leave a considerable policy mark on the office by nominating federal judges. Sheldon Goldman speculates that Obama, given historical trends, will seek to craft a judiciary that is more diverse in terms of race, gender, and ideology, but that “confirmation may well prove to be a challenge in a Senate that is not filibuster-proof.”55 Even with a majority in the Senate, the role of Congress (and the opposition party) is critical. Indeed, under the present process, the Senate Judiciary Committee and the White House (the president personally) jointly decide whether or not the vetting process of an individual considered for the federal bench will go forward.56 Of course, as noted above, an area where the president has less resistance from Congress is in the nomination and confirmation of Supreme Court justices. Although Congress may have some say in the nomination and confirmation of lower court judges, nominations to the “highest court in the land” are generally the exclusive province of the White House. The relatively smooth nomination, vetting, and confirmation of Obama’s choice for the Supreme Court to replace Justice David Souter, Sonia Sotomayor, validates this.

Shared Foreign Policy Powers There has been qualified support for the “two presidencies” thesis first proffered by Aaron Wildavsky in 1961, whereby presidents are suggested to succeed more on congressional votes on foreign policy than domestic policy.57 This concept is predicated on the assumption that the president is primarily in charge of decision making on foreign policy. Less public attention to most matters of foreign policy may also allow presidents to be less responsive to public opinion in that area.58 Foreign policy, international crises, or military events may often seem removed, complicated, or arcane to the public, causing people to trust the president on foreign or military matters more than on domestic policy matters (when policies are generally more contested). Further, political participants understand the White House has more institutional power and knowledge on matters of foreign policy, allowing it to appear authoritative publicly.59 Yet, as noted above, scholars have begun to view the relationship between the executive and legislative branches as cooperation rather than conflict. This approach has proven fruitful for understanding the interbranch relationship even in areas generally presidency-dominated, such as foreign policy60, and these theories can help us to explain the political changes after a dramatic event like 9/11. Indeed, several prominent policy studies in the aftermath of the tragedies of 9/11 requested additional congressional oversight in matters of domestic surveillance, the conduct of international conflicts, and the trajectory of foreign policy.61 Others have shown that, although Congress generally leaves military policy to the executive branch, it injects itself into the policy-making process when political incentives are greater (divided government, protracted conflicts, or souring public opinion).62 Congress also recently has played a more significant role in

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financing international commitments and resisting presidential nominees.63 In practice, consultation between the branches also produces the best political outcomes.64 Indeed, recent scholarship has documented the essential contribution of the role of the legislative branch in the making of foreign policy throughout time. Not surprisingly, this relationship is reshaped during moments of foreign conflict or challenges to the sovereignty of the United States. When present, the resurgent power of Congress historically appears to be driven by a retrenchment of an unfavorable policy and the will of individual members of Congress to challenge the status quo. In particular, three historical peaks in the twentieth century characterize the ebb and flow of the dynamic relationship, including the “isolationists” in the aftermath of World War I, the “revisionists” during the height of the Cold War, and the “new institutionalists” during the Vietnam War.65 The isolationists in Congress were powerful (and savvy) enough to block Woodrow Wilson’s proposed League of Nations and force the administration to withdraw troops from revolutionary Russia.66 During the origin of the Cold War, congressional power again enlarged, with congressional revisionists as “players on virtually every key issue of the day, in a bipartisan foreign policy where formal and informal powers seamlessly intersected.”67 Because of strong sentiments from the Republican leadership (and a relatively ineffectual Democratic leadership) several factions of the Republican Party were permitted to continue their ideological goals to limit the spread of Communism, both at home and abroad. Riding in the wake of the “imperial presidency,” Congress sought to significantly reassert itself again in the mid-1970s.68 The “new institutionalists” challenged presidential supremacy during the Vietnam War, coalescing years earlier as critics of foreign aid policies that supported anti-Communist regimes in the 1960s.69 Stalwart senators, including Stuart Symington, Edward Kennedy, John Tunney, Dick Clark, Frank Church, and members of the “Watergate class of 1974” led the charge with legislation limiting covert assistance, convening hearings on human rights abuses, and cutting off aid to governments deemed reckless with power.70 These idealistic changes prompted many to argue for more transparency in national security affairs and the justification of American international actions to the public, culminating in the War Powers Act of 1973 that ostensibly limited formal presidential war-making power.71 The most dramatic of these post-Watergate moments was Senator Frank Church’s investigation of the United States’s intelligence community (including the FBI, the CIA, and other intelligence agencies) from 1975 to 1976 through the Senate Select Committee to Investigate the Intelligence Agencies of the United States. The “Church Committee” (as it came to be known) investigated some of the many abuses of the United States during this time, including assassination plots against foreign leaders and the overthrow of democratically elected governments in Latin America.72 Out of these proceedings emerged significant legislation restricting presidential power in covert operations by requiring court-granted warrants for international surveillance (called the Foreign Intelligence Surveillance Act).73 The Ford White House largely viewed the committee as resulting from the

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power shift during Watergate, suggesting emerging political energy (even if temporary) in the legislative branch on foreign policy.74 As is clear from these examples, this power-sharing relationship between the branches is not static. And, as we have seen in the past, this dynamic relationship bends and reforms as function of the political will expended by the political actors involved and as international events unfold. Even in recent events, the pendulum of power sharing continues to sway back and forth on contemporary issues, primarily the “war on terror.” In advance of the 2006 elections, after key congressional Republicans questioned the White House’s blanket authority to detain prisoners, the White House and Congress negotiated a compromise on rules for trials for “enemy combatants.” Under the new rules, detainees have some expanded rights to fair trials in which the president is able establish military tribunals without potential review from federal courts.75 While these legislative determinations give the executive more power to classify military detainees, Congress, even members of the president’s party, has been periodically willing to challenge this executive authority. Senator Arlen Specter (a Republican at the time) went so far as to initiate Judiciary Committee hearings to investigate George W. Bush’s use of signing statements to interpret laws or statutes as he signs them into law, particularly the president’s ability to interpret Article 3 (regarding “cruel treatment and torture”) of the Geneva Convention.76 These power-sharing themes are continuous and integral to the discussion of the American political system in the post-9/11 world. Indeed, these are the lasting lessons of the Church Committee: balancing executive authority with legislative oversight and public disclosure. Congress has played a big role in national security and foreign policy issues, with minimal politics injected into the process (to date). This has come from both parties. Congress, led by Democrats, promoted a compromise package of additional resources for the conflict in Afghanistan that would emphasize training for Afghan security forces but deny additional combat troops requested by the White House to regain the initiative against the Taliban insurgency.77 Congress has also played an active role in shaping presidential policy. For instance, in May of 2009, after Obama requested $80 million for the closing of Guantanamo Bay, the Senate rejected his request for funding and “vowed to withhold federal dollars until the president decides the fate of the facility’s 240 detainees.”78 Although the president signed an executive order ordering the closing (see below), Congress’s position as organizer and funder of national security and military issues gives its members a potent say in the fate of the controversial facility. Democrats especially have attempted to make their voices heard on foreign policy matters. Frustration with the wars in Afghanistan and Iraq were significant factors in the substantial Democratic gains, and, as a result, party activists and leaders have sought to make their positions known to the White House. For instance, in May of 2009, the House passed legislation approving an additional $96 million in funding for the wars in Afghanistan and Iraq through September 30, as requested by Obama. But 51 Democrats opposed it, claiming that, like George W. Bush before him, Obama was escalating a conflict with no exit strategy.79 The

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bill passed 368 to 60, with 200 Democrats and all but nine Republicans supporting it, but cracks in the Democratic Party began to widen. The same legislation in the Senate required Obama “to intervene repeatedly to lobby members of his own party for his foreign policy vision.”80 Part of the hang-up was that this legislation was labeled “emergency spending,” allowing it to be considered independent of the budget (and with less scrutiny). The “Out of Iraq” Caucus (70 members of Congress opposed to United States troop presence in Iraq) also continues to hound the Obama White House.81 Although Republicans have been largely supportive of the Obama administration’s foreign policy objectives and actions, fissures are beginning to develop in advance of the 2010 midterm elections. One reporter noted, “As he embraces direct talks with Iran and weighs his strategy in Afghanistan, President Obama is facing a new political threat from Republicans: Be hawkish on foreign policy or risk letting your party be painted as weak in next year’s midterm elections.”82 Similarly, “GOP strategists are honing in on Obama’s recent policy shift on missile defense, in which the administration decided to cancel a radar installation in the Czech Republic and ground-based interceptors in Poland that had been proposed by Bush to protect Europe from Iranian long-range missiles.”83 The ongoing conflicts in Iraq and Afghanistan, as well as other potentially troubling relations, require the White House and opposition in Congress to work together to fund present and future conflicts, even at a time where there are differences of opinion about the future of international relations.

Unilateral Presidential Powers Recent academic discussion on the importance of the unilateral presidency has expanded Neustadt’s edict that presidential power is partly “command-based.”84 These unilateral powers come in a variety of forms. Executive orders are “directives issued by the president to officers of the executive branch, requiring them to take an action, stop a certain type of activity, alter policy, change management practices, or accept a delegation of authority under which they will henceforth be responsible for the implementation of law.”85 Presidential proclamations allow the president to make a political determination about a particular fact and are usually directed (unlike executive orders) at someone outside of government.86 Presidential memoranda, similar to executive orders, are pronouncements by the chief executive directed at executive branch officials and often the White House staff “without fitting into” legal requirements.87 These edicts typically rely on statutory authority, presumed statutory authority, or presidential constitutional prerogatives. Interestingly, many of these directives grew out of the president’s ambiguous powers as outlined in Article II. Although each has been sanctioned by the Supreme Court in various ways, there is still potential for abuse of power or the overcoming of the separation of powers because presidents have the authority to make policy-based decisions without input from Congress.88 Recent works provide evidence that a president’s ability to shape and act without the consent of Congress, the courts, and (often) the public is largely unchecked

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by traditional institutional arrangements.89 These works have also examined executive orders in relation to the development of the institutional presidency,90 in detaining “enemy combatants,”91 and in examining the shifting balance of powers between the executive and legislative branches.92 Politics does play a role in these unilateral policy actions, as many scholars have found that political circumstances enhance or limit the ability of presidents to act. The relative ambiguity of constitutionally granted powers provides incentives for presidents to attempt to use unilateral action to send policy signals to other political actors93 and to expand their own formal powers.94 Presidents are found to use these tactics (especially executive orders) at the end of their terms, when running for re-election, when Congress is weak or of the same party, and when lagging in public opinion polls.95 These powers are also more prevalent during moments when presidential power is at its highest.96 The actions are often covert presidential actions that receive little or no support from Congress and may be done to actively circumvent Congress.97 Yet, even while these actions are unilateral, others have found that presidents often only use these actions when the action is not likely to be overturned in Congress98 or where there is already some prior agreement between the executive and legislative branches.99 The authority cited in most executive orders is statutory, indicating some coordination between the executive and legislative branches.100 In fact, specifically related to presidential proclamations, in policy issues related to the establishment of national monuments or on trade policy (increasing or decreasing the Generalized System of Preferences, which governs tariff rates between the United States and other nations), Congress provides the president the statutory authority to operate within a specific boundary.101 Attempts by the president to conduct unilateral authority outside these prearranged boundaries would be illegal. Likewise, executive orders are rarely overturned but, if these presidential directives run afoul of the Constitution, the courts can step in to halt the action. This minimizes (but does not erase) the potential for presidents to overstep the constitutionally proscribed separation of powers. The use of these powers is not new. As shown in Figure 6.1, in their first 100 days in office, presidents have routinely issued dozens of executive orders, proclamations, and executive memoranda. Although the number of executive orders issued in the first 100 days of an administration has been declining since the Carter administration, the number of proclamations is consistently high for recent presidents (Clinton to Obama) and the number of executive memoranda has been growing steadily from the Clinton administration (12) to the Bush administration (25) to the Obama administration (41). The growth in interest groups and political organizations covetous of an official proclamation from the White House has contributed to historic highs in presidential proclamations in the recent few decades. Likewise, the growth of government, especially executive agencies, boards, and commissions, hastens the increase in the number of executive memoranda allowing the president to exercise more control over his own bureaucracy. Interestingly, all three recent presidents listed in Figure 6.1 entered office with unified government, suggesting presidents are using their unilateral powers when Congress is potentially most acceptant of their leadership.

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Obama has used these unilateral powers like other presidents: to advance his policy agenda. For instance, Obama issued a ban for federal workers (including contractors) from using the text-message function of their phones while driving: “A Federal Government-wide prohibition on the use of text messaging while driving on official business or while using Government-supplied equipment will help save lives, reduce injuries, and set an example for State and local governments, private employers, and individual drivers.”102 Obama issued a proclamation on “Pay Equity Day” and shortly thereafter signed legislation making it easier for individuals to sue employers for pay discrimination.103 Such executive actions are also used by presidents to manage emerging conflicts. In response to air bombings by Israel in Gaza, Obama issued a memoranda offering monetary aid to refugees because “it is important to the national interest to furnish assistance under the Act in an amount not to exceed $20.3 million from the United States Emergency Refugee and Migration Assistance Fund for the purpose of meeting unexpected and urgent refugee and migration needs.”104 This again implies a coordination of interbranch efforts. Even with some coordination, several executive orders were designed to overturn or amend executive orders from prior administrations, concurrent with the will of the president’s party. For example, executive orders facilitated the closing of the military prison at Guantanamo Bay (Executive Order 13491, “Ensuring Lawful Interrogations,” which revoked Executive Order 13440) and amended Bush’s White House Office of Faith-Based Initiatives to be the White House Office of Faith-Based and Neighborhood Partnerships. Likewise, because of the controversy created during the Bush administration surrounding the use of presidential signing statements (statements of interpretation of legislation upon signing it into

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law), Obama issued an executive memorandum outlining the criteria he would use to issue a signing statement: “to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities.”105 In another memoranda, reacting to the presumed secrecy that reigned during the Bush administration, Obama directed “that agencies should take affirmative steps to make information public” in a timely manner.106

Conclusion: “Rubber Band” Relations Alexander Hamilton’s edict for “energy” in the executive can creatively contradict the constitutional authority given to the legislative branch. A visible and powerful president necessarily detracts from a legislature whose job it is (at least on paper) to be the engine of legislative ingenuity. The Constitution sought to “buttress ‘parchment barriers’ by pitting ambition against ambition; and the principle means of doing that was the election of public officials at different times, by different people and for somewhat different reasons.”107 Although the powers of the president have grown immeasurably beyond what the framers envisioned and have surpassed Congress in terms of the ability to lead in the American system, the function of shared powers continues to shape the political process in America. To consider this relationship a pendulum (an analogy some have used108 to suggest the power balance swings from one branch to another) may overstate the zero-sum game of Washington politics—the truth is that legislative powers are shared, even if certain powers are exercised at certain times by specific institutions that perhaps encroach on the power of another branch. A pendulum analogy implies that the power shifts between the branches (potentially at regular, predictable intervals). This arrangement is false since, even during times when one branch appears to have more power than another, the truth is that the branches still rely on one another for shared policy-making power. In reality, the executive-legislative relationship is more like a rubber band, where it retains a fundamental shape but can be stretched to change as legislative and executive tools change and political events occur. So, for instance, in utilizing unilateral powers, presidents can stretch that part of the rubber band, even while members of Congress assert themselves on matters of foreign policy or the appointments process. Indeed, perpetuating the rubber band analogy, jointly understanding presidency-centered and Congress-centered variables is also shown to better account for variations in policy making.109 For instance, recent evidence suggests a resurgent Congress in the creation of foreign policy, a fact that seems at odds with the “two presidencies” thesis110 or other literature that claims that Congress always defers to the president in foreign policy matters.111 This supports the literature that Congress may not be involved in the formal aspects of foreign policy making but does play a role in the informal aspects.112 The evidence presented here also reveals that Congress has more say on when and how the president uses his unilateral powers and whom the president recommends for nomination and confirmation than was previously assumed.

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Of course, this does not suggest that presidents are not critical to the process—in fact, in the case of foreign policy, presidents intent on using their powers are rarely stopped by Congress.113 Presidents, as “first movers” in foreign policy, can set a stable agenda and chart a course for policy action that is difficult to undo. As a result, because Congress often has less information than the White House, Congress has an incentive to delegate foreign policy powers to the president.114 Similarly, on issues like agency design, where the executive and legislative branches jointly construct a regulatory agency like the National Biological Service or the National Nuclear Security Agency, the executive often has the upper hand since the legislature may have a short-term view of the bureaucracy and the president can create agencies by executive order.115 But, on the other hand, to claim that Congress’s lawmaking powers have been co-opted by the executive would also be overstating the case. Yet, as recent evidence reveals, Congress’s role in the political process remains important. Louis Fisher argues that “very few operations of Congress and the presidency are genuinely independent and autonomous.”116 Even presidential “unilateral” actions which can be undertaken by the president often without prior consent of Congress are often done on behalf of Congress or with Congress’s implicit consent. The fact that such concurrent powers and the politics guiding them exist cannot be overlooked. All told, a rubber band analogy seems most appropriate to demonstrate the executive-legislative political arrangement. A pendulum swings on a plane and rarely deviates, while a rubber band can be stretched in many directions at once. The evidence from this chapter shows that power sharing is conducted in different patterns, with different branches holding an advantage at different times and in unique tools. The primary aspiration of the actors in this interbranch relationship should be to stretch the rubber band without breaking it.

Notes 1 See Edward S. Corwin, The President: Office and Powers, 1787–1957, 4th rev. ed. (New York: New York University Press, 1957). 2 See Gary Andres and Patrick J. Griffin, “Successful Influence: Managing Legislative Affairs in the Twenty-First Century,” in James A. Thurber, trans., Rivals for Power: Presidential-Congressional Relations (New York: Rowman & Littlefield, 2002); Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (Cambridge, MA: Harvard University Press, 1990); and Brad Lockerbie, Stephen Borrelli, and Scott Hedger, “An Integrative Approach to Modeling Presidential Success in Congress,” Political Research Quarterly 51 (1998):155–172. 3 Charles A. Jones, The Presidency in a Separated System (Washington, DC: Brookings Institution Press, 1994), 24. 4 Peterson, 79. 5 Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990), 372. 6 Barbara Sinclair, “Legislative Cohesion and Presidential Policy Success,” Journal of Legislative Studies 9 (2003):41–56. 7 See Jon R. Bond and Richard Fleisher, The President in the Legislative Arena (Chicago: University of Chicago Press, 1990); and Jon R. Bond, Richard Fleisher, and B. Dan Wood, “The Marginal and Time-Varying Effect of Public Approval on Presidential Success in Congress,” Journal of Politics 65 (2003):92–110. However, public approval of

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Brandon Rottinghaus the president has been shown to be effective when the issue is salient or when the issue is complex; see Brandice Canes-Wrone and Scott de Marchi, “Presidential Approval and Legislative Success,” Journal of Politics 64 (2002):491–509. Manabu Saeki, “Override Propensity in the US Congress: Veto Challenge and Override Vote by the Two Chambers,” Journal of Legislative Studies 10 (2004):70–83. Richard S. Conley, “Divided Government and Democratic Presidents: Truman and Clinton Compared,” Presidential Studies Quarterly 30 (2000):222–244. John B. Gilmour, “Institutional and Individual Influences on the President’s Veto,” The Journal of Politics 64 (2002):198–218. Frances E. Lee, “Dividers Not Uniters: Presidential Leadership and Senate Partisanship 1981–2004,” The Journal of Politics 70 (2008):914–928. Barbra Sinclair, “Hostile Partners: The President, Congress and Lawmaking in the Partisan 1990s,” in Jon R. Bond and Richard Fleisher, trans., Polarized Politics (Washington, DC: CQ Press, 2000). On the former point, see Morris Fiorina, Divided Government (New York: MacMillian, 1992); and James L. Sundquist, Constitutional Reform and Effective Government (Washington, DC: Brookings Institution Press, 1986); on the latter point, see David R. Mayhew, “Divided Party Control: Does It Make a Difference?” PS: Political Science and Politics 24 (1991):637–640. George C. Edwards III, Andrew Barrett, and Jeffrey Peake, “The Legislative Impact of Divided Government,” American Journal of Political Science 41 (1997):545–563. See Peterson. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking (Chicago: University of Chicago Press, 1998). Gary Andres, Patrick Griffin, and James Thurber, “The Contemporary Presidency: Managing White House-Congressional Relations: Observations from Inside the Process,” Presidential Studies Quarterly 30 (2004):553–563. Roger T. LaRocca, The Presidential Agenda: Sources of Executive Influence in Congress (Columbus: Ohio State University Press, 2002). Matthew Eshbaugh-Soha, “The Politics of Presidential Agendas,” Political Research Quarterly 58 (2005):257–268. Charles M. Cameron, Veto Bargaining: Presidents and the Politics of Negative Power (New York: Cambridge University Press, 2000). William Branigin and Michael D. Shear, “Senate Passes Economic Stimulus Bill,” The Washington Post, February 10, 2009, A1. Sidney M. Milkis and Jesse H. Rhodes, “Barack Obama, the Democratic Party, and the Future of the ‘New American Party System,’” The Forum 7 (2009): Article 7. Gregory Koger, “Making Change: A Six-Month Review,” The Forum 7 (2009): Article 8. The Economist, “Why Can’t They Just Get On? Republicans and Democrats in Congress,” September 2009. David E. Sanger, “Big Win for Obama, but at What Cost?” The New York Times, March 21, 2010, A1. Michael J. Gerhardt, The Federal Appointment Process: A Constitutional and Historical Analysis (Durham, NC: Duke University Press, 2003). Richard P. Nathan, The Administrative Presidency, 2nd ed. (New York: John Wiley, 1983), 1. Ibid., 10. G. Calvin Mackenzie, The Politics of Presidential Appointments (New York: The Free Press, 1980). Judith E. Michaels, The President’s Call: Executive Leadership from FDR to George Bush (Pittsburgh: University of Pittsburgh Press, 1997); Nolan McCarty and Rose Razaghian, “Advice and Consent: Senate Responses to Executive Branch Nominations, 1885–1996,” American Journal of Political Science 43 (1999):1122–1143; Timmoty P. Nokken and Brian R. Sala, “Confirmation Dynamics: A Model of Presidential Appointments to Independent Agencies,” Journal of Theoretical Politics 12 (2000):91–112.

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31 Christine L. Nemacheck, Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover Through George W. Bush (Charlottesville: University of Virginia Press, 2007). 32 Glendon Schubert, The Judicial Mind (New York: Free Press, 1965); David W. Rhode and Harold J. Spaeth, Supreme Court Decision Making (San Francisco: Freeman, 1976); Jeffery A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revised (New York: Cambridge University Press, 2002); David M. O’Brien, Storm Center: The Supreme Court in American Politics (New York: W.W. Norton, 2003). 33 McCarty and Razaghian, 1122–1143. 34 Sarah A. Binder, “The Senate as a Black Hole? Lessons Learned from the Judicial Appointments Experience,” in Innocent Until Nominated: The Breakdown of the Presidential Appointments Process, G. Calvin MacKenzie, ed., (Washington, DC: Brookings Institution Press, 2001). 35 See Nemacheck. 36 James P. Pfiffner, The Strategic Presidency: Hitting the Ground Running (Lawrence: University Press of Kansas, 1996), 70. 37 See Michaels. 38 Thomas H. Hammond and Jeffery S. Hill, “Deference of Preference? Explaining Senate Confirmation of Presidential Nominees to Administrative Agencies,” Journal of Theoretical Politics 5 (1993):23–59. 39 G. Calvin Mackenzie, “The State of Presidential Appointments,” in Innocent Until Nominated: The Breakdown of the Presidential Appointments Process, ed. G. Calvin Mackenzie (Washington DC: Brookings Institution Press, 2001). 40 Richard Waterman, Presidential Influence and the Administrative State (Knoxville: University of Tennessee Press, 1989), 29. 41 See Pfiffner. 42 Mackenzie, Innocent Until Nominated, xvii. 43 Christopher J. Deering, “Damned if You Do and Damned if You Don’t,” in The Inand-Outers: Presidential Appointees and Transient Government in Washington, ed. G. Calvin Mackenzie (Baltimore: The Johns Hopkins University Press, 1987), 100. 44 Susan K. Snyder and Berry R. Weingast, “The American System of Shared Powers: The President, Congress and the NLRB,” Journal of Law Economics & Organization 16 (2000):269–305; Nolan McCarty, “The Appointments Dilemma,” American Journal of Political Science 48 (2004):413–428; Berry R. Weingast, “Caught in the Middle: The President, Congress, and the Political-Bureaucratic System,” in The Executive Branch, eds. Joel D. Aberbach and Mark A. Peterson (Oxford: Oxford University Press, 2006). 45 Michael Sollenberger, The President Shall Nominate: How Congress Trumps Executive Power (Lawrence: University Press of Kansas, 2008). 46 Norman Vieira and Leonard Gross, Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations (Carbondale: Southern Illinois University Press, 1998); Burdett Loomis, “The Senate: An ‘Obstacle Course’ for Executive Appointments?” in Innocent Until Nominated: The Breakdown of the Presidential Appointments Process, ed. G. Calvin Mackenzie (Washington, DC: Brookings Institution Press, 2001). 47 Brandon Rottinghaus and Daniel E. Bergan (forthcoming), “The Politics of Requesting Appointments: Congressional Requests in the Appointment and Nomination Process,” Political Research Quarterly. 48 Brandon Rottinghaus and Chris Nicholson, “Counting Congress In: Patterns of Success in Judicial Nomination Requests by Members of Congress to the President,” American Politics Research 38 (July 2010):691–717. 49 Peter Baker, “Obama’s Team Is Lacking Most of Its Top Players,” The New York Times, August 24, 2009. 50 Jonathan Weisman, “Delays in Cabinet Nominations Demonstrate GOP Resolve,” The Wall Street Journal, January 24, 2009.

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51 Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency (Washington DC: CQ Press, 2010). 52 Michael A. Fletcher and Brady Dennis, “Obama’s Many Policy ‘Czars’ Draw Ire from Conservatives,” The Washington Post, September 16, 2009. 53 David B. Rivkin Jr. and Lee A. Casey, “Misplaced Fears About the ‘Czars,’” The Washington Post, September 19, 2009. 54 Sheryl Gay Stolberg, “Obama Bypasses Senate Process, Filling 15 Posts,” The New York Times, March 28, 2010. 55 Sheldon Goldman, “Obama and the Federal Judiciary: Great Expectations but Will He Have a Dickens of a Time Living up to Them?,” The Forum 7 (2009):Article 9. 56 Ibid. 57 Aaron Wildavsky, “The Two Presidencies,” Trans-Action 4 (1961):7–14; see also Bond and Fleisher (1990). 58 Benjamin I. Page and Jason Barabas, “Foreign Policy Gaps Between Citizens and Leaders,” International Studies Quarterly 44 (2000):339–364; Richard Sobel, The Impact of Public Opinion on U.S. Foreign Policy Since Vietnam (New York: Oxford University Press, 2001). 59 Graham Allison and Philip Zelikow, Essence of Decision: Explaining the Cuban Missile Crisis (New York: Addison-Wesley, 1999); Robert Sigliano, “The War Powers Resolution and the War Powers Act,” in The Presidency and the Constitutional Order, eds. Joseph M. Bessette and Jeffrey K. Tulis (Baton Rouge: Louisiana State University Press, 1981). 60 D. Roderick Kiewiet and Matthew D. McCubbins, “Appropriations Decisions as a Bilateral Bargaining Game Between President and Congress,” Legislative Studies Quarterly 10 (1985): 181–210; Bert A. Rockman, “Reinventing What for Whom? President and Congress in the Making of Foreign Policy,” Presidential Studies Quarterly 30 (2000): 133–156; Lee H. Hamilton and Jordan Tama, A Creative Tension: The Foreign Policy Roles of the President and Congress (Princeton, NJ: Princeton University Press, 2002). 61 The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (Washington, DC: Government Printing Office, 2002), 419–423. 62 James Meernik, “Congress, the President and the Commitment of the U.S. Military,” Legislative Studies Quarterly 20 (1995):377–392. 63 See Rockman, 133–156; and Randall B. Ripley and James M. Lindsay, Congress Resurgent: Foreign and Defense Policy on Capitol Hill (Ann Arbor: University of Michigan Press, 1993). 64 See Hamilton and Tama. 65 Robert David Johnson, Congress and the Cold War (Cambridge: Cambridge University Press, 2006), XIV. 66 Lloyd Ambrosius, Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspective (Cambridge: Cambridge University Press, 1987). The Congress was able to use the “power of the purse” to threaten to not fund the presence of military personnel in Russia, thereby forcing the White House to suspend troop allocations to Russia. 67 Johnson, Congress and the Cold War, XVI. 68 Arthur M. Schlesinger, Jr., The Imperial Presidency (New York: Houghton Mifflin Company, 1973), 252. 69 Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995). 70 Johnson, Congress and the Cold War, XX-XXI. Others have deemed this period of congressional presidential relations (from 1974 to 1976) as the “era of skepticism.” See Loch K. Johnson, A Season of Inquiry: Congress and Intelligence (Chicago: Dorsey Press, 1988), 253. 71 Gary Hart, The Shield and the Cloak (Oxford: Oxford University Press, 2006); Senator Hart was an original member of the Church Committee that investigated these themes. 72 Johnson, A Season of Inquiry.

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73 David B. Cohen and John W. Wells, American National Security and Civil Liberties in an Era of Terrorism (New York: Palgrave MacMillan, 2004), 24. 74 Leroy Ashby and Rod Gramer, Fighting the Odds: The Life of Senator Frank Church (Pullman: Washington State University Press, 1994), 472. 75 Charles Babington, “House OKs Bush-Backed Bill on Detainees,” The Washington Post, September 28, 2006, A1; Charles Babington and Jonathan Weisman, “Senate Passes Detainee Bill,” The Washington Post, September 29, 2006, A1. By a 51 to 48 vote in the Senate, the body rejected legislation that would allow for review of these decisions by federal courts. See David G. Savage and Richard Simon, “Legal Battle over Detainee Bill Is Likely,” Los Angeles Times, September 29, 2006, A1. 76 Charlie Savage, “Senators Renew Calls for Hearings on Signing Statements,” The Boston Globe, June 16, 2006, A4. Senator Specter also challenged the Bush administration’s interference with the hearings on domestic wiretapping, accusing the administration (and Vice President Cheney, in particular) of persuading other Republican members of the Judiciary Committee to not issue subpoenas requiring phone company executives to testify about the sharing of phone records. See Michael A. Fletcher, “Cheney Downplays Dispute with Specter,” The Washington Post, June 9, 2006, A4. 77 Scott Wilson, “On War, Obama Could Turn to GOP,” The Washington Post, October 1, 2009. 78 Shailagh Murray, “Senate Demands Plan for Detainees; Democrats Scrap Funding to Close Guantanamo Bay,” The Washington Post, May 20, 2009. 79 Perry Bacon Jr., “House Passes War Funds As 51 Democrats Dissent,” The Washington Post, May 15, 2009, A3. 80 Perry Bacon Jr., “Senate Approves War Funding Bill After Obama Presses Democrats,” The Washington Post, June 19, 2009. 81 Ross K. Baker, “Obama’s Left Flank; Anti-war Democrats Make President Vulnerable on National Security,” USA Today, July 1, 2009. 82 Peter Wallsten, “GOP Targets Obama’s Foreign Policy,” Los Angeles Times, October 2, 2009. 83 Ibid. 84 See Neustadt. 85 Philip J. Cooper, By Order of the President: The Use and Abuse of Executive Direction Action (Lawrence: University Press of Kansas, 2002), 16. 86 Brandon Rottinghaus and Jason Meier, “The Power of Decree: Recent Presidential Use of Executive Proclamations,” Political Research Quarterly 60 (2007):338–343. 87 Philip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements,” Presidential Studies Quarterly 35 (2005):515–532. 88 Louis Fisher, The Politics of Shared Power: Congress and the Executive (College Station: Texas A&M University Press, 1998). 89 William D. Howell, “Unilateral Powers: A Brief Overview,” Presidential Studies Quarterly 35 (2005):417–439; Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power (Princeton, NJ: Princeton University Press, 2001); Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (Lawrence: University Press of Kansas, 2002); William D. Howell, Power Without Persuasion: The Politics of Direct Presidential Action (Princeton, NJ: Princeton University Press, 2003). 90 George A. Krause and Jeffrey E. Cohen, “Opportunity, Constraints and the Development of the Institutional Presidency: The Issuance of Executive Orders, 1939–1996,” Journal of Politics 62 (2000):88–114. 91 Jennifer K. Elsea, “Presidential Authority to Detain ‘Enemy Combatants,’” Presidential Studies Quarterly 33 (2003):568–601. 92 Christopher J. Deering and Forrest Maltzman, “The Politics of Executive Orders: Legislative Constraints on Presidential Power,” Political Research Quarterly 52 (1999):767–783. 93 See Kenneth R. Mayer and Kevin Price, “Unilateral Presidential Powers: Significant Executive Orders, 1949–99,” Presidential Studies Quarterly 32 (2002):367–386.

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94 See Terry M. Moe and William D. Howell, “Unilateral Action and Presidential Power: A Theory,” Presidential Studies Quarterly 29 (1999):850–873. 95 See Kenneth R. Mayer, “Executive Orders and Presidential Power,” Journal of Politics 61 (1999):445–466; and William D. Howell, Power Without Persuasion: The Politics of Direct Presidential Action (Princeton, NJ: Princeton University Press, 2003). 96 William D. Howell and Jon Pevehouse, “Presidents, Congress and the Use of Force,” International Organization 59 (2003):209–232. 97 Philip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements,” Presidential Studies Quarterly 35 (2005):515–532. 98 See Deering and Maltzman, “The Politics of Executive Orders: Legislative Constrains on Presidential Power,” 767–783. 99 Brandon Rottinghaus and Elvin Lim, “Proclaiming Trade Policy: Presidential Unilateral Enactment of Trade Policy,” American Politics Research 37 (2009):1003–1023. 100 Adam L. Warber, Executive Orders and the Modern Presidency: Legislating from the Oval Office (Boulder, CO: Lynne Rienner Publishers, 2006). 101 Michelle Belco and Brandon Rottinghaus, “Proclamation 6920: Using Executive Power to Set a New Direction for the Management of National Monuments,” Presidential Studies Quarterly 39 (2009):605–618. 102 Executive Order #13513. October 1, 2009. 103 David Jackson, “President Touts Equal-Pay Bill at First Signing,” USA Today, January 30, 2009. 104 Executive Memorandum, “Unexpected Urgent Refugee and Migration Needs Related to Gaza,” January 27, 2009. 105 Executive Memorandum, “Memorandum for the Heads of Executive Departments and Agencies,” March 9, 2009. 106 Executive Memorandum, “Memorandum for the Heads of Executive Departments and Agencies: Freedom of Information Act,” January 21, 2009. 107 Fiorina, 410. 108 See Schlesinger. 109 Cary R. Covington, J. Mark Wrighton, and Rhonda Kinney, “A ‘Presidency-Augmented’ Model of Presidential Success on House Roll Call Votes,” American Journal of Political Science 39 (1995):1001–1024. 110 Wildavsky, 7–14. 111 Barbara Hinckley, Less Than Meets the Eye: Foreign Policy Making and the Myth of the Assertive Congress (Chicago: University of Chicago Press, 1994). 112 Rebecca K.C. Hersman, Friends and Foes: How Congress and the President Really Make Foreign Policy (Washington, DC: Brookings Institution Press, 2000). 113 Rockman, 133–156. 114 Brandice Canes-Wrone, William G. Howell, and David E. Lewis, “Toward a Broader Understanding of Presidential Power: A Reevaluation of the Two Presidencies Thesis,” The Journal of Politics 70 (January 2008):1–16. 115 David E. Lewis, Presidents and the Politics of Agency Design (Palo Alto, CA: Stanford University Press, 2003). 116 Fisher, The Politics of Shared Power, xi.

7

The Presidency and the Courts Nancy Kassop

Ask anyone to name episodes in history that illustrate the far-reaching significance of the relationship between the presidency and the courts, and most likely the answer will be 1) Franklin D. Roosevelt’s (FDR’s) unsuccessful effort in 1936 to persuade Congress to pass legislation that would allow him to “pack” the Supreme Court by increasing the number of justices relative to those over 70 years of age, and 2) the 5–4 Supreme Court decision in Bush v. Gore in December 2000 that halted the recount in Florida of that state’s popular vote in the 2000 presidential election. Both of these were spectacular historical events that marked the outer limits of that inter-branch relationship. If Congress had granted Roosevelt’s request to provide him with authority to nominate additional justices beyond the existing nine-member court under the specific circumstances at that time, it would have collaborated in a blatant presidential attempt to change the direction of Supreme Court decisions on the fate of Roosevelt’s New Deal legislation, and, thus, undermined the independence of the federal judiciary.1 Similarly, permitting the outcome of a presidential election to rest solely in the hands of nine Supreme Court justices is an extraordinary leap of faith for a nation, straining the democratic, self-governing principles upon which our system was founded.2 These examples are, perhaps, the most extreme incidents of what scholars describe as “politicizing” the Supreme Court, when a president uses the courts to try to gain political advantage, rather than take his chances in the more routine political processes. Between 1934 and 1936, the court invalidated, by either 5–4 or 6–3 votes, thirteen laws that formed the basis of Roosevelt’s New Deal to promote economic recovery from the Great Depression; thus, he proposed a plan that would maximize his chances to replace or counteract those justices who opposed this legislation with court appointees who would be more supportive of his legislative agenda.3 In November 2000, candidate George W. Bush asked the Supreme Court to hear an appeal from a decision of the Florida Supreme Court that, if left uncontested, would have permitted the manual vote recount in that state to continue until a final election result was reached. Bush’s lawyers challenged the Florida court decision, and asked the U.S. Supreme Court to halt the Florida recount at the point when Bush was leading Al Gore by 537 votes. Thus, in both cases, a president turned to the Supreme Court in what were nothing less than transparent efforts to manipulate it for specific political

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advantage. FDR “lost” the battle but “won” the war, in the larger sense, in that Congress rejected his specific court-packing proposal in 1937, and yet he managed to get the opportunity within two and a half years to appoint five new justices, as an eventual result of what has been termed “the switch in time that saved nine.” This phrase describes the pivotal vote switch of Justice Owen Roberts and Chief Justice Charles Evan Hughes in West Coast Hotel v. Parrish (1937), upholding the federal government’s authority under the commerce clause to require states to adhere to minimum-wage legislation and, thus, paving the way for federal regulation of the economy, the cornerstone of FDR’s New Deal. The court’s decision was soon followed by the resignation of a sufficient number of economically conservative justices to permit FDR to replace them with appointees of his choosing, who then voted, 5–4, to uphold his New Deal policies in subsequent cases. George W. Bush succeeded in winning a 5–4 decision from the Supreme Court in December 2000 that halted the recount in Florida, thrusting the court into the unusual and controversial position of effectively “deciding” a presidential election. Although these two incidents were at the far edges of presidential-judicial interactions, the strategic and “political” nature of the relationship between these two institutions was certainly not new, and was evident at the very start of the nation’s history. Chief Justice John Marshall’s decision in Marbury v. Madison (1803) was the culmination of efforts by outgoing president John Adams to “pack” the federal judiciary with Federalist Party supporters as the last bastion of his defeated party to counteract the influence of the incoming Thomas Jefferson administration and its Democratic-Republican Party control of Congress. Marshall had been Secretary of State in the Adams administration and had played a defining role in signing the commissions of the “midnight judges” appointed by Adams the night before Jefferson took office. William Marbury was one of those appointees whose commission, signed by then-Secretary of State Marshall, somehow went astray and was not delivered by the time Jefferson took the oath of office the next morning. Under modern norms, Marshall’s primary role in the events that led to the Supreme Court case of Marbury v. Madison, along with the fact that the appointment of Marshall as Chief Justice was, itself, one of President Adams’ final acts before stepping down from office, would be strong reasons supporting his recusal, or non-participation, in the case, due to an obvious conflict of interest in its outcome. And yet, undaunted, Marshall, as the new Chief Justice, proceeded to rule on this matter and produced the momentous decision that established the principle of judicial review of the actions of the legislative and executive branches. Alexander Hamilton, in The Federalist No. 78, characterized the judiciary as “having no influence over either the sword or the purse. . . . It may truly be said to have neither FORCE nor WILL but merely judgment” and that “the judiciary is beyond comparison the weakest of the three departments of power.”4 References to Congress and the president as the “political branches” suggest that, by deduction, the judiciary is somehow “non-political” or to be excluded, or protected, from the practice of politics. But the story of Marbury v. Madison (1803) makes clear that from the beginning, such a characterization was never true.

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Today, “judicial politics,” in all their ferocity and divisiveness, are evident to even the most casual observer.5 Every Supreme Court retirement is an invitation to the inevitable partisan and ideological combat that is certain to follow, and such pitched battles are reflected in the nomination and appointment process for the lower federal courts, as well.6 The appointment process for federal judges at all levels is viewed by incumbent presidents as an opportunity to secure their legacy by installing persons of their own choosing in lifetime positions, since any federal judge’s tenure will long outlast that of the president who appointed him or her. In the especially hyper-partisan and polarized environment fueled by fierce interest-group pressures that now characterize this process, each side views every new vacancy as a coveted chance to affect the outcome of Supreme Court decisions for years to come. Scholars—and history—have shown, however, that taking for granted the voting choices of any newly appointed judge or justice is a tricky business, indeed, and can often disappoint the president who selected him or her. President George H.W. Bush’s appointment of David Souter in 1990, on advice from Chief of Staff John Sununu that Souter would be a reliably conservative justice, proved incorrect (and a little embarrassing to the administration), and served as a cautionary tale to later presidents about expectations from their appointees.7

Intersections Between the Presidency and the Courts We see, then, that the relationship between presidents and the federal courts is manifested in a variety of ways. First and foremost is the president’s Article II constitutional authority to nominate and, “by and with the advice and consent of the Senate,” to appoint all federal judges. This is a formidable power, of which presidents are well aware, giving them the opportunity to shape the direction of courts for decades to come. The closely divided nature of the justices on recent Supreme Courts has intensified this competition between political parties and ideological opponents to use the judicial appointments process as a proxy for policy battles. The threat by Republicans in 2005 to employ the “nuclear option” against the Democratic-led Senate filibuster of Republican judicial nominees on the lower federal courts was indicative of the depth of ill will and the high stakes with which both sides viewed this process, described most recently by Sarah A. Binder and Forrest Maltzman as “acrimonious and dysfunctional.”8 Secondly, the reason why judicial appointments are approached with such intensity by all of the players involved is the common assumption that there is a direct connection between a president’s selection of judicial nominees and judicial decision-making, (i.e. the outcome of cases). Presidents have good reason to be as strategic as possible in their judicial appointment choices, since cases challenging presidential uses of power or contesting key policies of a president’s agenda inevitably find their way into the courts. On its face, it would seem reasonable for a president to assume that his or her “interests” would be best construed by judges or justices of his or her choice. However, history has shown that such assumptions can be naïve and unfounded, as presidents have lost at the Supreme Court, just as

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any other disappointed litigant,9 even when the court contains members selected by the incumbent president. Finally, presidents have one other link to the judiciary, one that operates less visibly than the appointment or decision processes, but one that is just as integral to governmental operations. That link is epitomized in the work of the office of solicitor general, the third-ranking official in the Department of Justice. The solicitor general is nominated by the president and confirmed by the Senate, and is a key executive branch player whose duties bring him or her into the most direct contact with the courts. Those duties are: 1) serving as the attorney for the United States government in cases before the federal and state courts where the United States is a party, representing the government through briefs and oral arguments; 2) authorizing civil cases, where the United States is a party, to be appealed from district courts to circuit courts; 3) determining which cases to appeal to the U.S. Supreme Court, when the federal government is the losing party; and 4) operating as an advisor to the Supreme Court, when that court asks for what is known as “CVSG” or “calls for the views of the solicitor general.” That last duty as a “bridge” between the executive and judicial branches has earned the solicitor general the nickname of the Tenth Justice, and is symbolized, physically, by the fact that the solicitor general maintains an office in the Supreme Court building as well as in the Department of Justice.10 Common to all three of these presidential-judicial interactions (presidential appointment of all federal judges, judicial decision-making in cases where the president has an interest, and presidential appointment of the solicitor general to decide how to represent the interests of the federal government in court cases) is the fact that they all represent points where presidential politics intersect with the law. As such, they offer avenues to a president where the choices he or she makes can impact his or her administration’s agenda in the short term, and the institution of the presidency in the longer term.

Politics in Recent Executive-Judicial Relations Political considerations, then, have always figured prominently in executive-judicial relations; recent administrations, including the Barack Obama administration, provide rich examples of just how fraught with tension and high drama these relationships can be. We will explore some of these in each of the three categories, and will suggest the controversies that bring these conflicts to life. The Judicial Selection Process There may be nothing else upon which all participants in this process agree, except that it is “broken” in its current state, and no one has yet found a way to “fix” it. Many would identify the origins of this painful debate in the failed Robert Bork confirmation process in 1987,11 in which the Senate, by a vote of 42 to 58, rejected his nomination for being “out of the mainstream” in his jurisprudential thinking. The confirmation hearings focused on judicial philosophy and on methods of

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constitutional interpretation. Both topics now figure prominently in every Supreme Court confirmation hearing and in questioning of lower federal court nominees, and both lay bare the divide between two very opposite visions of the role of judging. Judicial philosophy refers to differing views of what is the appropriate role of a judge—whether one sees that role as expansive or limited. The traditional understanding has been that judges “interpret” the law, not “make” it, but that simple statement is fraught with complexity. The controversy arises from the fact that the act of interpreting is, itself, variable and subjective: Each judge may have his or her own view of how to implement the interpretive function. At opposite ends are two models, or ideal types, of judicial philosophy: activism vs. restraint. The characteristics associated with one are completely opposite in the other. These characteristics include: 1) constitutional interpretation—broad vs. narrow, 2) adherence to precedent—willingness vs. refusal to overturn, 3) deference to the actions of the political branches—willingness vs. refusal to strike down democratically based judgments as unconstitutional, and 4) interpretation of individual liberties—willingness vs. refusal to judicially recognize (“create”) new rights not explicit in the text of the Constitution or amendments. Critics of judicial activism allege that proponents of this model: 1) interpret the Constitution too broadly, 2) are too willing to overturn precedent, 3) are too willing to declare unconstitutional actions of the political branches, and 4) are too willing to “create” new rights beyond those in the text of the Constitution. Conversely, critics of judicial restraint allege that proponents of that model: 1) interpret the Constitution too narrowly, despite the passage of more than 200 years of national development; 2) are too willing to adhere to precedent, even in the face of changed circumstances; 3) are too willing to defer uncritically to the judgments of the political branches, even where the democratic will of the people may impose unequal or dubious burdens; and 4) refuse to acknowledge that judges may “find” new rights that the framers could not have anticipated but that are consistent with the fundamental values that guided the framers. Incorporated within these dichotomies is the larger, more encompassing, interpretive debate between “original intent” and “the living Constitution.” Judges who interpret the Constitution in the original intent mode maintain that the meaning of the document was fixed in 1787, and future generations should be faithful to the enduring intent of those who wrote it. Originalists, such as Justice Antonin Scalia, believe that these meanings are sufficient to apply to contemporary times, and they are critical of any efforts (by “activists”) to graft onto the document “modern” understandings of its phrases and provisions. Such adaptations, they assert, would be unduly subjective, leaving the meaning of this fundamental charter up for grabs, vulnerable to individual tastes, and based on the whim of any five justices who happen to agree at any one time. In essence, originalists maintain that permitting such varying and constantly changing interpretations would amount to “law-making” by judges, an activity that is the province of legislatures and executives, not judges. The classic example of invalid judicial law-making is the “finding,” through the approach of substantive due process, of a right to privacy in the Due

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Process Clause of the fourteenth amendment, as enunciated in Griswold v. Connecticut (1965) and as further established in Roe v. Wade (1973) to apply specifically to a woman’s right to choose whether or not to bear a pregnancy to term. These two decisions represent for originalists an unacceptable expansion of the judicial role into a realm uniquely intended for legislatures and for policy determination by democratic majorities, not unelected judges. The guiding principle is that the framers of the fourteenth amendment could not have intended in 1868 for “liberty” to encompass a right to personal privacy in matters of child-bearing; rather, if such a right was to be created, its legitimacy needed to come from the people directly through the constitutional amendment process. (Or, alternatively, the public policy of permitting a woman to choose to terminate a pregnancy needed to be established by an act of the legislature. As history has demonstrated, the exact opposite has occurred and, instead, state legislatures have enacted laws prohibiting such conduct, and women and their legal advocates have looked to the Constitution and its amendments to find guarantees to protect their freedom of action against such restrictive state laws). Conversely, judges who espouse “the living Constitution” approach, such as the late Justice William Brennan, proceed from a more expansive and more dynamic vision of the judicial role. They deem it not only perfectly acceptable but necessary for judges to interpret the Constitution with an understanding of and sensitivity to the vast changes the nation has experienced in the 223 years since the document was written. The touchstone to the framers for them lies in the fundamental values, rather than the precise words, that undergird the Constitution’s provisions—values such as liberty and due process, which permit adaptation to contemporary conditions. For example, the framers could not have anticipated the vast scope of modern communications in all their electronic complexity; however, the fundamental value underlying the first amendment’s freedom of the press—protection against unwarranted governmental restriction of publication and dissemination of information—can surely be extrapolated to apply to our contemporary understanding of whatever the press constitutes today. Further complicating this interpretive debate, and in a way that is difficult for the general public (as opposed to constitutional scholars) to understand, is the fact that both activism and restraint can be employed to serve both liberal and conservative ends. A typical misperception is that activism is the exclusive province of judges perceived to be politically liberal, and that restraint is practiced only by those judges perceived to be politically conservative. But this conflation of activism with liberal judges and restraint with conservative judges is incorrect—and incomplete. It is just as possible for judges with reputations as political conservatives to “actively” promote conservative constitutional values, such as protecting the rights of gun owners or property owners against governmental regulation; and, equally, it is possible for judges believed to be political liberals to be “restrained” by deferring to the political branches and upholding laws that promote liberal constitutional values, such as the Civil Rights Act of 1964 or the Voting Rights Act of 1965. Thus, efforts to simplify this debate between judicial activism and judicial restraint founder upon closer analysis; trying to portray this complexity to the

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public during politically charged judicial confirmation hearings is a challenge, even during the best of times. Hearings over the last two decades have been especially contentious, as partisans have calculated the enormity of the stakes involved in the selection of each new Supreme Court justice, as well as judges on the lower federal benches. Binder and Maltzman identify two other factors, in addition to the Bork debacle, that have contributed to increased politicization of the judicial appointments process: the role of political elites, beyond sitting senators, who seek to influence the confirmation process, and the recognition that courts are a major source of policymaking (thus, there is a keen, strategic interest in their composition).12 On the other end, they have also offered that the result of intense political combat on the Senate floor, along with delays in nominations by presidents, has been prolonged vacancies, at least on the lower federal bench, leading to case delays and, thus, prompting a decline in public trust of the courts.13 The legacy of bad blood from the confirmation conflicts during the Clinton and George W. Bush administrations has not abated. Such conflicts have included lengthy, multiple-year delays in Senate votes on lower court nominees, or even outright failure to vote by the end of a Senate session and opposition party filibusters on the Senate floor. (The Democratic filibuster of George W. Bush’s D.C. Circuit judge nominee Miguel Estrada in 2003, and his subsequent withdrawal of his nomination after two years of delays, still resonates strongly with Senate Republicans, whose anger and frustration over that episode have not subsided.)14 Conflicts have also occurred as the present Obama administration has turned to its judicial nominations.15 Its summer 2009 nomination and confirmation of appeals court judge Sonia Sotomayor to the U.S. Supreme Court was comparatively civilized and smooth, in contrast to some of the difficulties it has faced from Republican opposition in the Senate to appeals court nominees (e.g. Goodwin Liu in the Ninth Circuit and David Hamilton in the Seventh Circuit). In July 2010 the Senate confirmed President Obama’s nomination of Solicitor General Elena Kagan to fill the Supreme Court seat of retiring Justice John Paul Stevens, but not without first engaging in some of the partisan posturing that has come to characterize most judicial confirmation hearings. Some statistics on the lower court judicial nominations and appointments in the Obama administration are now available. USA Today reporter Joan Biskupic has provided these numbers and an explanation of them. She comments that Obama “is setting records for the number of women and minorities nominated to federal judgeships.”16 Of the seventy-three people he has nominated for federal judgeships, almost half have been women, 25 percent have been African Americans, 10 percent Hispanics, and 11 percent Asian Americans.17 Political scientist Sheldon Goldman describes as “extraordinary” the fact that 70 percent of Obama’s nominees are non-traditional (i.e. not white men).18 But the story is not without its sobering elements. The first eighteen months of his administration have been marked by unprecedented delays in filling the lower federal bench, the latest casualty in what has been termed the “judicial wars,” caused by the continuing polarization and extreme partisanship in Washington.

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Some blame is borne by the Obama administration itself for taking longer than recent ones in making nominations, but the delaying and obstructing tactics by Senate Republicans have been the prime contributing factor, resulting in a new low in modern times for confirmation rates, according to Goldman, of 37 percent for district court judgeships and 47 percent for appeals court judgeships.19 This compares glaringly with the first two years of the George W. Bush administration, where, even with the contentious atmosphere of judicial confirmations, the Senate approval rate was 85 percent for district court nominees and 52 percent for appeals court nominees.20 The most disturbing new trend Goldman has detected is that these tactics, long associated with opposition party behavior toward appeals court nominations, have now spread to district court nominations, as well.21 The ultimate effect could be an undermining of the effort by the Obama administration to significantly increase the racial, ethnic, and gender diversity of the lower federal courts.22 As of July 2010, there were 105 vacancies on the district and appeals courts combined, out of the total 858 positions on those courts.23 The Obama administration had thirty-nine nominations pending for those 105 vacancies.24 The administration has improved its rate of nomination from its earlier delays, but Senate Republicans have every reason to want to wait until after the 2010 midterm elections to proceed further with these nominations. The outlook for an improved environment in the “judicial wars” is not encouraging. Cases Involving Matters of Interest to Presidents and the Presidency Inevitably, during each president’s administration, cases will come to the Supreme Court or the lower federal courts that either 1) challenge the president’s use of constitutional powers, or 2) contest legislation or administrative regulations that are key to a president’s policy agenda. Thus, presidents have an obvious, vested interest in the selection of federal judges, even beyond the ultimate reason that these choices contribute significantly toward their presidential legacy beyond their four or eight years in office. Presidents seek nominees to the courts whose jurisprudential philosophy and political ideology are most compatible with their own. It is naïve folly to automatically assume that a president’s appointee will agree 100 percent of the time with the appointing president’s legal positions, but, alternatively, it is at least reasonable to presume that there will be some consistency between the appointing president and the voting behavior of his or her judicial appointees. Such a presumption guides presidents in the judicial appointment process. Recent presidents have had their share of Supreme Court cases that address questions of constitutional authority and interpretation of statutes and regulations that promote their agenda—and cases where appointees have not ruled in ways fully sympathetic to the appointing president. Notable examples of such cases are: U.S. v. Nixon (1974), Morrison v. Olson (1988), Clinton v. Jones (1997), and Hamdan v. Rumsfeld (2006).25 Chief Justice Warren Burger, appointed to the Supreme Court in 1969 by President Richard Nixon, rejected the interpretation of executive privilege advanced by

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Nixon’s lawyers in U.S. v. Nixon that would have shielded the president from having to turn over the Watergate tapes to Special Prosecutor Leon Jaworski. Burger may have mitigated the severity of the ruling’s applicability to future presidents by recognizing, for the first time, a constitutional basis for executive privilege and one that permitted a narrow opening for presidents to claim it in matters of national security. But this exception was of no help to Nixon, who faced the 8–0 ruling (then Associate Justice William Rehnquist not participating) that his generalized claim of absolute privilege would not prevail against the more compelling need for evidence in a criminal proceeding. Chief Justice Rehnquist delivered the blow to President Ronald Reagan’s efforts in Morrison v. Olson to declare unconstitutional the office of independent counsel that Congress had created in the Ethics in Government Act of 1978. The act provided a series of procedural steps creating the office and authorizing investigations and prosecution of executive branch officials alleged to have engaged in wrongdoing. Reagan challenged the law’s constitutionality on multiple grounds: as an infringement on Article II appointment power, “executive power,” and “take care” authority; as an invasion of Article III judicial power; and as a violation of separation of powers. Rehnquist’s opinion for the court rejected these claims, and ruled that inter-branch appointment of inferior officers and the removal provisions in the 1978 act do not violate Article II, Article III, or the separation of powers by “imped(ing) the president’s ability to perform his constitutional duty.” Rehnquist had been elevated to chief justice by Reagan in 1986, and he was joined on the opinion by Sandra Day O’Connor, a 1981 Reagan appointee. Antonin Scalia, a 1986 Reagan appointee, was the lone dissenter in the case. President Clinton’s claims in Clinton v. Jones for temporary immunity from civil liability in a sexual harassment suit involving his unofficial conduct were soundly rejected, 9–0, by a Supreme Court that included two of his appointees, Justices Stephen Breyer and Ruth Bader Ginsburg. The wisdom of the court’s judgment that the district court could “manage” any potential interference with a president’s official duties that might arise from subjecting him to civil liability during his term of office proved overly optimistic, as his testimony in the Paula Jones case ultimately led to further legal difficulties that set the path towards his impeachment in January 1999. The larger significance here is that the ruling established that sitting presidents may be sued while in office for unofficial conduct (that, in Clinton’s case, occurred prior to taking office), thus rejecting any presidential immunity in such civil suits. President George W. Bush’s presidency was dominated by a focus on antiterrorism policy and the scope of the president’s constitutional authority to address that issue. It did not take long for challenges to his authority to materialize in the federal courts, and four such cases made their way to the Supreme Court. The role of Bush’s appointees, Chief Justice John Roberts and Justice Samuel Alito, however, differed from the above examples. First, they were seated on the court for only the last two of these antiterrorism cases (Hamdan and Boumediene); both sided with the position of the president in Boumediene v. Bush (2008), and dissented

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from the majority opinion that rejected Bush’s arguments. Alito also dissented in Hamdan (again, agreeing with the president’s position which was rejected by the majority), but Roberts recused himself, due to his earlier participation in the case when he was a judge on the DC Circuit Court. All four cases—Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan, and Boumediene—resulted in rulings largely unfavorable to the president. (Hamdi was a mixed bag, in that the Court agreed that the president had authority from the 2001 Authorization to Use Military Force to detain terrorist suspects on the battlefield, even if they are American citizens, but it held also that suspects are entitled to challenge their detention through a “fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”) As often tends to happen, and as is true for the most part in the cases mentioned here for all four presidents, when the president’s power is challenged in court, decisions are more likely to reject the executive branch claims or to interpret the president’s powers relatively narrowly. There are exceptions, certainly (e.g. U.S. v. Curtiss-Wright and others), but the majority of Supreme Court cases that have addressed presidential power throughout most of history have rejected broad executive branch claims, and the examples described in this section are typical of that pattern. Turning to current legal disputes involving matters of interest to the president and the presidency, a host of issues are brewing in the lower federal courts that could find their way to the U.S. Supreme Court during President Barack Obama’s first term. Firstly, there are issues that do not involve presidential power directly but that implicate policies with relevance to his administration Their relevance is the result of either key issues on his political agenda, such as the state challenges to health care legislation or the federal government’s suit contesting Arizona’s recent immigration reform law, or those that are thorny, high-profile, legal matters that will, inevitably, draw a response from the administration. The latter type includes the constitutional status of same-sex marriages (the current case in the federal trial court in California, Perry v. Schwarzenegger, that challenges Proposition 8 is destined to land in the Supreme Court) and the similar issue of the repeal of the military policy of “don’t ask, don’t tell,” as well as the continuation of the Supreme Court’s gun rights jurisprudence after District of Columbia. v. Heller (2008) (whether the “personal right” in the second amendment is protected against state regulations in McDonald v. City of Chicago). Secondly, the continual antiterrorism cases are still winding their way up through the federal courts and providing tricky dilemmas for the administration, whose legal positions in many of these cases are close, if not identical, to those of the Bush administration—the target of its previous scorn.26 Finally, perhaps the most dynamic issue to energize a president–Supreme Court interaction has been President Obama’s public aim at the Citizens United v. FEC (2010) decision, which struck down as unconstitutional the Bipartisan Campaign Reform Act of 2002 ban on corporate political spending in election campaigns as an infringement of the first amendment freedom of speech of corporations. He issued a statement on the day of the decision, saying:

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With its ruling today, the Supreme Court has given a green light to a new stampede of special-interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington—while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.27 A week later, President Obama continued his pointed criticism of the court’s decision with this comment in his State of the Union address that drew an unusual public reaction from Justice Alito, who appeared to shake his head and mouth the words “not true” in immediate response to the president’s remarks:28 With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. [Applause.] I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. [Applause.] They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.29 The press had a field day with this “open warfare” between the president and the court, and the journalistic coverage alternated between noting that previous presidents (but not many) had criticized the Supreme Court in public addresses versus finding this very public disagreement between two institutions uncomfortable to witness, at the very least, and, for some, inappropriate conduct on the part of such high-profile officials.30 The issue is not likely to fade soon, since it has already drawn a plea from the president to Congress to find a legislative remedy for the court’s decision, and there will be future legal cases to flesh out the finer details of a broad ruling. Presidents and Solicitors General: The Agenda Connection Although the importance to a president of the selection of the person who will serve in the position of solicitor general may not be a concept that readily comes to mind, there is good reason to recognize that this Senate-confirmed appointment of the third-ranking official in the Department of Justice is even more influential than the attorney general, when it comes to advancing the president’s political agenda in the courts, and, thus, is the most direct link between the president and the judiciary. The solicitor general is the lawyer for the federal government; essentially, this means that this official is the legal representative of the administration

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in court cases. As such, of great importance are the judgment and choices of the solicitor general as to which cases to appeal to higher courts and as to the substantive, legal arguments of the government in cases (and, to a somewhat lesser degree, the choice to enter as amicus curiae in any case where the solicitor general believes there is a federal government “interest,” even though the government is not a party to the case). It will fall to the solicitor general to craft legal arguments in briefs and oral arguments that accurately reflect the political and policy agenda of the administration, when and as these positions can be supported by law. Conversely, as noted earlier, the solicitor general has dual responsibilities in that he or she is also an advisor to the court, owing to the 1870 statute that requires that the solicitor general be “learned in the law” and in the practice known as CVSG— when the solicitor general receives a request from the Supreme Court for a “call for the views of the Solicitor General.” The justices look to the solicitor general to guide them when in need of clarity in the law, and they rely on the integrity and “independence” that the office of solicitor general has come to embody.31 “Independence” is the key—and the dilemma—here. Traditionally, this was the essence of the role of the solicitor general’s office. But maintaining that independence in the face of administration expectations, especially in times of excessively polarized politics, can be a daunting challenge. There is a constant tension over whether this position is to be independent of political pressure as a servant of the law or, alternatively, a policy advocate for the administration.32 Three factors play a role in how each solicitor general operates in the job: 1) the specific political context and environment at the time; 2) the perspective of the president who appoints the solicitor general; and 3) the relationship between the solicitor general and the attorney general. The choice of the solicitor general by a president will be a cue as to how “political” the office may be. The president will obviously choose someone who shares his or her political and policy views, although the specific emphasis on professional credentials, along with the special relationship as advisor to the Supreme Court, gives this position a different and unique cast. Scholars note that the increased “political” nature of the office began during the Reagan administration, exemplified in the handling of the Bob Jones University vs. U.S. (1983) case, where the deputy solicitor general, Lawrence Wallace, as the author of the brief, appended a footnote to it that registered his personal disagreement with the legal position of the Justice Department in the brief.33 Political scientist Lawrence Baum also explains that “the political side of the solicitor general’s work has become more prominent,” as the connections between that office and the administration have become stronger, and he traces the origin of that development to the Reagan presidency.34 Primarily, the influence of the solicitor general comes in the very high success rate at both stages of Supreme Court review. At the level of reviewing certiorari petitions, the solicitor general’s petitions are granted about 75 percent of the time. At the merits stage (the outcome of the substantive court decision—win vs. loss), the solicitor general wins about 70 percent of the time.35 Explanations for these high success rates include the solicitor general usually being chosen simply because he or she is a superb legal professional, with recognized expertise

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(although it is interesting that Elena Kagan, appointed in 2009 as solicitor general by President Obama, had no litigating experience and had never argued a case before the Supreme Court when she was nominated). Because of the esteem with which the justices view the solicitor general, they rely on him or her as a “gatekeeper” for the court. The justices expect that the solicitor general will appeal to the court only those cases most worthy of court review. Therefore, if the solicitor general “screens” cases carefully when determining which ones to appeal, the high rates of success at the cert petition and merits stages become more understandable.36 Another explanation for the high success rates is the solicitor general being a “repeat player”—someone who appears before the Supreme Court more than any other single lawyer, and, thus, someone who accumulates more experience and more knowledge than any other peer in the legal profession at that time of how to appeal strategically to the justices.37 Recent solicitor generals, such as Drew Days, Walter Dellinger, and Seth Waxman in the Clinton administration; Theodore Olson and Paul Clement in the George W. Bush administration; and Elena Kagan in the Obama administration, recognized the tenuous balance they needed to maintain between their role as an advocate for their client—essentially, the federal government, but with a keen awareness that they operate as representatives of the president who appointed them—and the office’s traditional posture of its unique relationship to and with the Supreme Court. All of them had to navigate tricky waters. Days, Dellinger, and Waxman worked on cases involving key federalism (Seminole Tribe of Florida [1996], Printz v. U.S. [1997], Alden v. Maine [1999], and Kimel v. Florida Board of Regents [2000]), first amendment religion (Rosenberger v. University of Virginia [1995], Boerne v. Flores [1997], and Agostini v. Felton [1997]), redistricting (Shaw v. Reno [1993]), line-item veto (Clinton v. City of New York [1998]), a partial-birth abortion ban (Stenberg v. Carhart [2000]), commerce clause (U.S. v. Lopez [1995] and U.S. v. Morrison [2000]), physician-assisted suicide (Washington v. Glucksberg [1997]), hate crime (Wisconsin v. Mitchell [1993]), affirmative action (Adarand Constructors v. Pena [1995]), a challenge to Miranda (Dickerson v. U.S. [2000]), and sex discrimination (U.S. v. Virginia [1996]). Olson worked on, in addition to the Bush v. Gore case (although that was argued and decided in December 2000, prior to his confirmation as solicitor general): redistricting (Hunt v. Cromartie [2001]), election law (FEC v. Colorado Republican Campaign Committee [2001]), the death penalty (Atkins v. Virginia [2002]), homosexual rights (Lawrence v. Texas [2003]), affirmative action (Gratz v. Bollinger and Grutter v. Bollinger [2003]), and first amendment religion cases (Zelman v. SimmonsHarris [2002]). Clement had four cases in which he defended unsuccessfully the Bush antiterrorism policies (Rasul v. Bush [2004], Hamdi v. Rumsfeld [2004], Hamdan v. Rumsfeld [2006], and Boumediene v. Bush [2008]), along with cases on campaign finance reform (McConnell v. FEC [2003]), eminent domain/property rights (Kelo v. City of New London [2005]), second amendment gun rights (DC v. Heller [2008]), and first amendment expression related to conditioning federal funds for university

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policies on military recruiting (Rumsfeld v. Forum for Academic and Institutional Rights, Inc., [FAIR, 2006]). Two important cases were argued by the solicitor general’s office in 2009, prior to Elena Kagan’s confirmation: Title VII disparate impact discrimination (Ricci v. DiStefano [2009]) and the Voting Rights Act case (Northwest Austin Municipal Utility District Number One v. Holder [2009]). Kagan’s first Supreme Court argument was the high-profile, first amendment political expression/campaign finance reform case, Citizens United v. FEC (2010). As there is no longer any question that the Supreme Court has developed into a key policymaker, the discretion that solicitor generals exercise in their case selection process has greater consequences today than ever before.

Conclusion The relationship between the presidency and the courts is one that may seem less visible than that between the presidency and Congress but is no less consequential and every bit as intriguing for scholars to study. The general public sees this relationship most vividly at the time of a Supreme Court nomination or, perhaps, when the court issues a decision in a highly anticipated case. But scholars follow the executive-judicial relationship, in all its manifestations, on an ongoing basis, and are acutely aware of its dynamic quality and constant tensions. The fact that the courts are now a major player in government policymaking is the most significant change from their earlier reputation as mostly passive institutions that could only react incrementally to the controversies brought before them. Today we see how the three dimensions of the inter-branch relationship that were outlined in this chapter continue to spur debate and controversy. The judicial appointment process, judicial cases of interest to a president and the presidency, and the work of the solicitor general’s office are all government operations that either depend upon or promote interactions of the president and the federal judiciary. All are woven into the fabric of relationships that support the governmental process in all of its complexity. There will always be issues that animate these relationships, although they are especially vibrant, at this time, as a consequence of the highly charged, contemporary political environment. Thus, the executive-judicial relationship is a rich one that merits our attention, as its outputs can produce policy effects for years to come.

Notes 1 William E. Leuchtenberg, Franklin D. Roosevelt and the New Deal: 1932–1940 (New York: Harper and Row, 1963), 231–238; Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (New York: W.W. Norton, 2010). 2 Howard Gillman, The Votes that Counted: How the Court Decided the 2000 Presidential Election (Chicago: University of Chicago Press, 2001). 3 Henry J. Abraham, Justices, Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Lanham, MD: Rowman & Littlefield Publishers, 1999), 157–160.

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4 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), 465–466 (emphasis in original). 5 David A. Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999); Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin Press, 2007); David M. O’Brien, Storm Center: The Supreme Court in American Politics, 8th ed. (New York: W.W. Norton, 2008); Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007). 6 Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (New Haven, CT: Yale University Press, 1997). 7 Sununu assured conservatives that Souter would be “a home run” for them. See Toobin, 20–21. 8 Sarah A. Binder and Forrest Maltzman, Advice and Dissent: The Struggle to Shape the Federal Judiciary (Washington, DC: Brookings Institution Press, 2009). See also Lee Epstein and Jeffrey Segal, Advice and Consent: The Politics of Judicial Appointments (New York: Oxford University Press, 2005); and Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (Lanham, MD: Rowman & Littlefield, 2006). 9 See, for example, Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 (1952); U.S. v. Nixon, 418 U.S. 683 (1974); Ex parte Milligan, 71 U.S. 2 (1866); Clinton v. Jones, 520 U.S. 681 (1997); Morrison v. Olson, 487 U.S. 654 (1988). 10 See Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Random House, 1987); and Rebecca Mae Salokar, “Politics, Law, and the Office of the Solicitor General” in Cornell Clayton, ed., Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics (Lawrence: University Press of Kansas, 1995). 11 See John Anthony Maltese, “Anatomy of a Confirmation Mess: Recent Trends in the Federal Judicial Selection Process,” JURIST, University of Pittsburgh School of Law, April 15, 2004 (http://jurist.law.pitt.edu/forum/Symposium-jc/Maltese.php#2); Stephen L. Carter, The Confirmation Mess: Cleaning Up the Federal Appointments Process (New York: Basic Books, 1995). 12 Binder and Maltzman, 8. 13 Binder and Maltzman, 10–11. 14 Joan Biskupic, “Obama’s Push for Court Diversity Hits Snag,” USA Today, June 16, 2010 (http://www.usatoday.com/news/washington/judicial/2010-06-15-diversitylower-courts_N.htm). 15 See Binder and Maltzman, 81. For statistics on the length of confirmation delays and slow-down and on the failure in 1996 of the Senate to confirm any circuit court of appeals judges, see Sheldon Goldman and Elliot Slotnick, “Clinton’s First Term Judiciary: Many Bridges to Cross,” Judicature, Vol. 80, No. 6, May–June 1997, p. 257; Goldman and Slotnick, “Picking Judges Under Fire,” Judicature, Vol. 82, No. 6, May–June 1999, 271–293. See also Nancy Kassop, “Clinton, the Constitution, and Presidential Power: His Legacy for the Office of the President,” in Rosanna Perotti, ed., The Clinton Presidency and the Constitutional System (College Station: Texas A&M University Press, forthcoming) for a description of what Goldman and Slotnick have called the “court-blocking” strategy of Senate Republicans in 1996, when only seventeen district court judges were confirmed and no appeals court judge was confirmed. 16 Biskupic. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid.

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23 Ibid., updated on August 9, 2010 with information from United States Courts, “Current Judicial Vacancies” (http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx). 24 United States Courts, “Current Judicial Vacancies” (http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx). 25 U.S. v. Nixon, 418 U.S. 683 (1974); Morrison v. Olson, 487 U.S. 654 (1988); Clinton v. Jones, 520 U.S. 681(1997); Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 26 For example, the Supreme Court denied certiorari in the appeal of Maher Arar’s suit against former Attorney General John Ashcroft, Arar v. Ashcroft, 09–923 (June 14, 2010), siding with the administration’s position that the case should be dismissed under the state secrets privilege—a position that mobilized Bush administration critics. Other cases fleshing out further rights of detained terrorist suspects continue in the federal courts. The DC Circuit ruled in Maqaleh, et al., v. Gates, 09–5265, in May 2010 that foreign nationals held at a U.S. military prison at Bagram airbase in Afghanistan do not have a right to challenge in U.S. courts their continued imprisonment, overturning a federal district court ruling from two years earlier that applied to Bagram detainees the same habeas corpus right guaranteed to Guantanamo defendants in Boumediene. And the administration remains dogged by the knotty issue of those detainees who are eligible for release after habeas hearings but for whom resettlement presents a quandary when repatriation to their home countries is not a viable option, and an appropriate (and willing) third country must be found. The ongoing saga of the Kiyemba v. Obama cases involving resettlement of the Chinese Uighurs continues, unresolved: Kiyemba I, 08-5824, DC Circuit, April 14, 2010; Kiyemba II, 561 F. 3d. 509, DC Circuit (05-5487, 05-5489, July 27, 2009), cert. denied 2010 WL 1005960 (09–581, March 22, 2010). 27 Barack Obama, “Statement from the President on Today’s Supreme Court Decision,” January 21, 2010 (http://www.whitehouse.gov/the-press-office/ statement-president-todays-supreme-court-decision-0). 28 The Blog of LegalTimes, “Obama: Supreme Court Opened the Floodgates for Special Interests,” January 27, 2010 (http://legaltimes.typepad.com/blt/2010/01/obamasupreme-court-opened-the-floodgates-for-special-interests.html). 29 Obama, “Remarks by the President in State of the Union Address,” January 27, 2010 (http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address). 30 Robert Barnes, “Reactions Split on Obama’s Remark, Alito’s Response at State of the Union,” January 29, 2010 (http://www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012802893.html); Jan Crawford, “Obama Skewers Court—and Signals Change Ahead,” January 28, 2010 (http://www.cbsnews. com/8301-504564_162-6150742-504564.html?tag=contentMain%3bcontentBody); Toobin, “Alito’s Reaction to Obama Was Fair,” January 29, 2010 (http://www.cnn. com/2010/OPINION/01/28/toobin.obama.alito/); and Andy Barr, “Orrin Hatch: Obama ‘Rude’ to Court,” January 28, 2010 (http://www.politico.com/news/stories/0110/32163.html). 31 For extended analysis of the office of Solicitor General, see Richard L. Pacelle, Jr., Between Law and Politics: The Solicitor General and the Structuring of Race, Gender and Reproductive Rights Litigation (College Station: Texas A&M University Press, 2003), especially Chapters 1 and 2; Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Random House, 1987); Salokar, “Politics, Law and the Office of the Solicitor General.” 32 See Lawrence Baum, The Supreme Court (Washington, DC: CQ Press, 2007), 83–84; Pacelle, 10–12, 22, 30–32. 33 Salokar, “Politics, Law and the Office of the Solicitor General,” 64. 34 Baum, 85–86. 35 Salokar, “Politics, Law and the Office of the Solicitor General,” 68–70; Salokar, The Solicitor General: The Politics of Law (Philadelphia: Temple University Press, 1992); Baum,

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84, 95; Doris Marie Provine, Case Selection in the United States Supreme Court (Chicago: University of Chicago Press, 1980), 82; Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: CQ Press, 1998), 87. 36 Baum, 95. 37 Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 9, 1 (Fall 1974):98.

8

White House Staff Justin S. Vaughn and José D. Villalobos

The American president is often viewed by outsiders and commentators as the singular impersonation of authority in the world’s sole democratic super-power, capable of reordering realities across the globe and from state to state with the push of a button or a reach toward a red phone. In reality, however, the chief executive sits atop an immense bureaucratic structure that facilitates the president’s policy and political leadership initiatives. That is accomplished by aiding him in gathering and processing the information he needs to make his decisions and implementing, to the greatest degree possible, both his preferences and the legislative dictates that emerge out of Congress and find a positive response upon crossing the president’s desk. The individuals who staff a president’s White House are his greatest human asset as he spends every waking moment for the duration of his tenure in office working to lead the nation in a manner that will, in some cases, allow him to keep his job and, in others, keep him in the good graces of future historians. As such, his staffers occupy his mind from before he even becomes president-elect to his final moments in office, as was most memorably the case in Richard Nixon’s famous farewell address to his staffers after resigning in 1974. Even when they are not strategizing over who to recruit to serve in the Executive Office of the President or thanking them for their service at the end (and during) their time in office, presidents constantly evaluate their staff and staffing structures, even if only to promise ways to cut the size and scope of the personnel apparatus.1 Moreover, it is not just the presidents themselves who care about the employeeinhabitants of the buildings at and around 1600 Pennsylvania Avenue; increasingly, the media has taken an interest in the men and women who work for the president.2 Articles and television coverage frequently assess which staffers are most influential, which are most controversial, and often which are most accessible to members of the press. Similarly, the study of different dimensions of the White House staff has long had a presence in presidency research. Today the subject is frequently debated and analyzed in high-profile scholarly arenas. For example, Presidential Studies Quarterly, the leading academic journal dedicated to the study of the American presidency from multiple disciplinary perspectives, published in March 2009 a special symposium on “The Administrative Presidency” that considered the role of White House staff among other bureaucratic

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dimensions of the executive branch. Similarly, organized panels at important political science conventions are often dedicated to the subject, including recent panels such as “Staffing the White House” (APSA 2009), “Development and Management of the Institutional Presidency” (MPSA 2010), and “Staffing and Decision Making in the White House” (APSA 2008).3 Furthermore, leading scholars of the presidency have come together in key election years under the umbrella of the White House Transition Project (www.whitehousetransitionproject.org). The purpose is to conduct research with the intent of advising incoming administrations on how to conduct their transition from campaigning to governing with a particular eye toward structuring and staffing the White House. As the multi-dimensional nature of the serious attention being paid to White House Staff—from the president, the media, and the academy—makes clear, and as the importance of the staff has grown over recent decades, so has our scholarly dedication to understanding and explaining it. In this chapter, we evaluate the state of these efforts and offer commentary about the scholarly analysis concerning the White House staff, with particular attention paid to the expansion of the staff, centralization of key activities, and the expansion of knowledge about key personnel positions. We follow these discussions with a treatment of more recent research trends and some thoughts on future research directions.

Function of the White House Staff The range of positions in which individuals serve while working for the president is quite dramatic. Just as there are high-level policy advisers and easily recognizable press secretaries and chiefs of staff, there are also domestic workers like custodians, cooks, and porters. Although all of these positions and many others are technically considered members of the White House staff,4 in this chapter we employ a more nuanced definition. Following Matthew Dickinson, we consider staff to be “those individuals and agencies within the Executive Office of the President (EOP), formally established in 1939, including the White House Office (WHO) and the other primary staff agencies; and the political secretaries heading the major executive branch departments and agencies that collectively constitute the traditional presidential ‘cabinet.’”5 Implicit in this conceptualization of staff is the concept of power. To be a member of the White House staff is to be a presidential employee directly involved in the business of politics, policy making, or some hybrid of both. Therefore, to Dickinson’s institutional considerations, we also point out a parallel functional dimension. This focus on function is not unique, nor is it clear-cut. According to Terry Sullivan, the White House staff serves dual functions: First, it extends the president’s reach. It expands the breadth of presidential “awareness” by gathering intelligence, assessing information, and overseeing policy deliberations. It expands presidential strategic considerations, which makes it possible to consider a wider range of alternative scenarios

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Justin S. Vaughn and José D. Villalobos simultaneously. The staff also expands opportunities for controlling implementation by requiring the executive always to anticipate the president’s reaction. In a way, the staff affords the president something akin to the advantages of the Congress, where its multitudes create a policy-making institution that “never sleeps.”6

Second, the White House staff magnifies the president’s voice. It creates a wider range of “presidential presence” by coordinating the administration’s “message.” And it provides the capacity to elaborate the president’s position on issues, thereby increasing the likely force of presidential persuasion in public deliberations. The White House staff ensures that the president has the most forceful voice in public debate.”7 According to former White House advisor Bradley Patterson, now of the Brookings Institution, the modern White House staff serves more than a dozen principal presidential functions, including: integrating national security policy and operations, developing and overseeing domestic policy, coordinating foreign and domestic economic policies, providing legal advice to the chief executive, managing legislative affairs, informing the press, overseeing communications, speechwriting, building alliances with constituency groups, scheduling, collaborating with state and local governments, keeping president and party in harmony, recruiting and appointing noncareer officers, and advancing presidential trips.8 Further, the staff must provide support for special circumstances (including emergencies and other initially unanticipated policy and political developments) while keeping the complex internal administrative system running, by attending to considerations such as superintending the president’s paper flow, keeping the bridge open to the cabinet, and meeting the president’s hour-to-hour needs.9 Moreover, all the while the White House staff must provide support to the president’s two primary “special counselors”: the First Lady and the vice president.10 Over recent decades, as expectations of presidents have grown, so have the staffing needs to support the increased executive workload. As a result, the number of presidential employees exploded in the twentieth century and continues to grow today. In the next section, we discuss this expansion, identifying the roots of the growth and the dimensions of how it has transpired.

Historical Dynamics of the White House Staff “The president needs help.” Such began perhaps the most important document written about the institution of the American presidency in the twentieth century, at least insofar as how the institution would come to be configured and endlessly reconfigured. Authored by the Committee on Administrative Management, chaired by public administration scholar Louis Brownlow and henceforth referred to as the Brownlow Committee, the Brownlow Report, as history has come to know the 1937 document, advocated sweeping changes to the institutional dimensions of the presidency. Many of these changes were subsequently though not immediately

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implemented, whether by congressional action or executive order, and the organizational face of the chief executive was forever changed. The president now had a mechanism through which to seek increased advisory and implementation capacity and made use of it, as did his successors for generations to come. The primary influence of the Brownlow Report was the subsequent creation of the EOP in 1939. The EOP initially consisted of five main units—the WHO, the Bureau of the Budget, the natural resources and planning board, the office of government reports, and the liaison office of personnel management.11 Since then, the EOP has expanded to eleven offices and several supplemental units. The main intent of the EOP was to provide the president a way of overseeing policy making by the executive departments and agencies. In reality, however, the EOP has actually served as a springboard for the president to take on greater responsibility and involvement in leading the policy making process. Expansion Soon after the EOP’s creation, President Franklin D. Roosevelt added six key administrative aides to work behind the scenes, often giving them overlapping assignments as a way of increasing inner-staff competition to help maximize the quality of information garnered and influence exerted.12 Presidents Harry Truman and Dwight Eisenhower followed suit, though their staff structure was more hierarchical. Eisenhower in particular favored a more closed organizational approach, even adding a chief of staff to serve as a regulator of individuals and memoranda coming in and out of the Oval Office. By today’s standards, such changes seem relatively moderate, particularly since they represented more of an extension of the president’s staff than the broader institutional extensions observers have since witnessed. The most profound changes occurred in the 1960s and led to a more comprehensive institutionalization of the White House that altered the operation of the entire executive branch. Subsequently, the institutionalization of the policy-making process in the White House has resulted in numerous gains in policy-making power for presidents. For one, presidents have gained more discretion over the policy-making process in general and are thus able to claim more credit for policy development. Employing their growing inner staff, presidents have also become less dependent on departments and agencies, making it possible to forgo outer executive input in cases where the president’s views differ from that of executive branch civil servants. Consequently, the status of cabinet secretaries has relatively declined as the president’s inner staff has grown in size and amount of delegated responsibilities. Toward the end of the 1960s, the growth of the White House reached a point where even inner middle- and lower-level White House personnel experienced a decline in the amount of accessibility to and influence over the president. In particular, President Richard Nixon made a point to concentrate power among his most senior aides. Nixon applied a strict pyramid structure with clear lines of authority running through his chief of staff and two main policy aides. In fact, the

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use of a chief of staff became fully institutionalized during the Nixon administration.13 Later on, Nixon also moved to expand White House control over the outer bureaucracy by placing some of his most trusted aides in top positions across the various executive departments and agencies. However, once the Watergate debacle occurred and led to Nixon’s resignation, beltway insiders and Nixon’s successors—particularly Gerald Ford and Jimmy Carter—shied away, to a certain extent, from such concentrated levels of power within the White House. The Ronald Reagan years saw not only a resurgence in concentrated and expanded power within the White House, they also culminated with an unprecedented amount of delegation of administrative duties from the president to his underlings. Reagan’s chief of staff, Donald Regan, dominated White House lines of authority in a manner that both alleviated the president of a significant amount of managerial duties but also limited the president’s access to much of his staff and other outside voices. As with Nixon’s case, an overconcentration of power among the president’s inner circle soon led to an unraveling of controversies, highlighted by the Iran-Contra affair.14 More recently, George W. Bush’s White House earned praise (particularly early on) for employing a tightly organized, hierarchical structure. Though often considered highly secretive, Bush’s organizational approach was seen as largely effective—particularly in the post-9/11 phase that saw the establishment first of a White House office and later of a new cabinet position for the newly formed Department of Homeland Security. Indeed, save for the controversy surrounding the Central Intelligence Agency leak scandal that implicated Lewis “Scooter” Libby (Vice President Dick Cheney’s chief of staff), Bush’s administration accumulated much power and influence over public affairs and policy in a manner that helped to avoid some of the mistakes his predecessors made. Efforts to further focus power and influence within the president’s inner circle have continued to grow over time. Barack Obama’s administration, while outwardly promoting cooperation and transparency, has actually functioned under a more hierarchical structure, led by the dominant and highly political Chief of Staff Rahm Emanuel. Obama has also been quite aggressive in defending his staff’s behind-the-scenes activities by claiming executive privilege on numerous occasions, including the refusal of having the former social secretary, Desiree Rogers, testify before Congress over the controversy involving party crashers at Obama’s first state dinner. Nevertheless, given the growing challenges modern presidents face and the expansion of executive branch staff to deal with them, it is not surprising that more recent presidents have tended toward a more protected and centralized approach to staff management and policy development. In summary, the expansion of the White House has provided a necessary framework for helping presidents to keep up with the growing demands of the public, as well as their own aspirations for leading the policy-making process. In the interim, presidents have become increasingly dependent on their inner staff in trying to manage information and take on the policy-making process. According to Bradley Patterson:

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What began to be true in [Franklin D.] Roosevelt’s time is even truer today; it is the White House that must supply the required leadership and coordination. The evolution that was required fully to implement that principle has taken place over sixty years, and has occurred on two fronts. First, the department and agencies have gradually come to accept the primacy of the White House in executive branch policy work; second, the White House staff itself has emerged as the lead engine of both policy development and interdepartmental coordination.15 With executive branch expansion in mind, we next discuss two strategies presidents employ—centralization and politicization—as a means for concentrating power and influence within the president’s inner circle, and review how such strategies are intended to ease the president’s managerial burdens in leading the policymaking process. Centralization Presidents today operate in a context in which they are required to satisfy evergrowing leadership expectations while simultaneously pursuing their own policy preferences (as well as the preferences of their core constituencies). As Terry Moe notes, “The expectations surrounding presidential performance far outstrip the institutional capacity of presidents to perform.”16 To satisfy public expectations and accomplish their own preferred objectives, presidents avail themselves of an institution that has grown to be immense and unwieldy. Even the agencies that comprise the EOP—which are more within reach of the president’s grasp than other aspects of the federal government—prove difficult to control, without the most persistent and effective efforts.17 In their managerial role, presidents must collect, organize, and sort out information because, as Richard Neustadt puts it, “a president is helped by what he gets into his mind. His first essential need is information.”18 Presidents have at their disposal two primary resources for policy making: “inner” White House personnel and “outer” civil servant personnel spread out across the executive branch agencies and departments. To manage the process, presidents may centralize policy development within the Executive Office, delegate its formation to the wider bureaucracy (i.e. decentralize), or employ a combination of the two.19 Below is an ordinal breakdown of the different levels of centralization a president may employ in developing a policy proposal: (1) The product of executive branch agencies and/or departments (least centralized) (2) Of mixed White House and agency/departmental origin, with the agency/ department taking the lead role (3) Of mixed origin, with the White House in the lead (4) The product of centralized staff outside the White House Office, such as in the Budget Bureau/Office of Management and Budget (OMB) or the Council of Economic Advisors (CEA) (5) The product of staffers within the White House Office (most centralized)20

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At its most extreme, centralization is a strategy presidents use to control federal agencies not directly enclosed within the president’s sphere of influence. According to Andrew Rudalevige, “Centralization occurs when there is a shift in functions from the wider executive bureaucracy to the Executive Office of the President, particularly the White House Office itself.”21 In other words, to centralize a bureaucratic function is to make the bureaucrats responsible for that function constituents of the president and those most organizationally proximate to him (and only to those individuals). Faced with the option of centralizing policy proposal development within the White House staff or delegating its development to executive agency actors, presidents prefer to centralize the process whenever possible because it lowers the front-end managerial costs of information gathering for policy development and helps maximize their personal preferences.22 More specifically, centralizing the policy-making process eases a president’s managerial burdens by reducing the amount of input to a small circle of White House staff. Centralization also helps presidents to maximize their personal policy preferences because the core duty of the “inner” White House staff is to serve the president’s needs, whereas “outer” civil servant personnel primarily follow the mission of the particular agency or department they work for. As noted in the previous section, Richard Nixon stands out for his intense efforts to centralize power and politicize the executive branch in order to help maximize staff responsiveness. In his seminal study, Moe argues that agency bureaucrats have their own personal preferences tied to the mission of the agencies they serve and thus lack incentive to be responsive to the president’s policy preferences.23 Moe posits that, “most all agencies impinge in one way or another on larger presidential responsibilities—for the budget, for the economy, for national defense—and presidents must have the capacity to direct and constrain agency behavior in basic respects if these larger responsibilities are to be handled successfully.”24 Instead, Moe suggests that presidents are better off seeking control over bureaucratic processes and outcomes by centralizing (as well as politicizing) the policy-making process whenever possible.25 Concerning presidential policy development, Moe contends that the employment of centralized EOP staff is more likely to provide the kind of responsiveness to policy preferences that presidents need in preparing their policy initiatives for proposal to Congress.26 As such, Moe and other scholars suggest that presidents can more effectively develop policy proposals that satisfy their personal preferences by seeking the “responsive competence” of their loyal inner circle of advisers. Politicization To tighten their grip on the activities of these executive agencies, presidents have also long pursued a strategy of politicization. Generally speaking, politicization concerns active presidential efforts to undermine the neutrality of agencies in favor of realigning the agency’s preferences—whether through redesign or repopulation—with the preferences of those at work in the Oval Office. More

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specifically, presidential politicization can be defined as the addition of political appointees on top of existing career civil service employees or the placing of loyal political appointees into important bureaucratic posts formerly held by career professionals.27 Moe argues that presidential efforts to enhance one’s capacity to effect political change are what drive persistent, albeit frequently unsuccessful, movements to reform the administrative apparatus. Moe observes that as political and bureaucratic opposition, along with institutional inertia and time constraints, have collapsed repeated attempts to create a more responsive bureaucracy, presidents have increasingly turned to politicization.28 Indeed, presidents have increasingly employed politicization as a way of decreasing preference divergence between themselves and executive agencies since at least the early 1970s.29 In addition to making general observations of the frequency of politicization as a managerial tool, David Lewis authored a thoughtful essay on the conditional nature of presidential staffing. Examining presidential politicization of agencies within the EOP, he found that presidents politicize more when their preferences diverge with agency views, when civil servants lack incentives to abandon an agency for the private sector amid an increase in political appointees, and when the president’s party holds a majority unified government.30 In a more recent study, we find that policy-specific approval of presidential performance also encourages presidents to politicize.31 Over time, a paradox has emerged surrounding the growth of appointees and staff shortages. The number of political appointees has grown at an expansive, perhaps alarming, rate. As Paul Light notes, “the total number of senior executives and presidential appointees grew from 451 in 1960 to 2,393 in 1992, a 430 percent increase.”32 By 2008, the Obama administration had the task of filling about 500 appointments requiring Senate confirmation, and more than 3,000 positions overall. The number of political appointees has swollen to such an extent that it now takes longer than the first full year in office for the president to fill all the necessary positions. As new presidents struggle to complete the appointment process and move their ambitious agendas forward, civil servants across the federal bureaucracy are frequently left waiting for leadership and wondering whether their expertise and concerns can and will be addressed effectively by the time the empty slots are filled. The rising number of political appointees makes it increasingly difficult for incoming presidents to carry out their transitions into office and have the necessary posts filled for them to be able to govern effectively, which subsequently impairs executive branch performance. For one thing, the absence of staff creates a gap between the president’s upper-level cabinet appointees and the middleand lower-level departmental and agency career civil service personnel. Without a strong sub-cabinet staff in place, the ability for the president to transfer information on his policy agenda down to the civil service and, in turn, have agency personnel respond by moving policy ideas back up to the president becomes severely limited.

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Key Personnel Over time, as the institution of the White House staff has evolved through expansion, centralization, and politicization, the way political scientists have studied the institution has also grown more robust and methodologically diverse. In particular, scholars have an increasingly powerful conceptual grasp and historical understanding of key positions in the White House organizational apparatus.33 In this section we discuss several of them, though certainly not all.34 Chief of Staff An ever-expanding institution with increasing political and policy authority demands masterful coordination. As David Cohen notes, “The size and responsibilities of the modern presidency demand that someone (or some small group of people) oversee the White House process—failure to do so leads to chaos (witness the first years of the Carter and Clinton administrations).”35 In recent decades, this perhaps impossible task, which has been referred to as “the worst job in Washington,” has fallen to the White House chief of staff.36 As the modern presidency has become increasingly complex, the role played by the White House chief of staff has gone from one of welcome administrative support to that of leadership imperative. As the evolution has transpired, scholars of the presidency have noticed and continued to take stock of this most important administrative office. One of the leading authorities on White House chiefs of staff, David Cohen has identified three key dimensions of the chief of staff role. The first of these, the administrator, is both basic and crucial, and refers to the chief of staff’s responsibility to make sure information and activity within the White House is processed and structured in such a way that the president’s effectiveness and efficiency are maximized. The second role, the chief of staff as adviser, is arguably the most important source for the bulk of the position’s power, for it is in this capacity that the chief, as the president’s most trusted aide involved in the most dimensions of the administration, has the ability to suggest and support different decisions and courses of action versus alternative opportunities and possibilities. Finally, the third responsibility of the chief of staff is that of guardian. Specifically, the chief of staff must protect the president from inter-administration squabbles and other existential administrative threats. The chiefs of staff who perform well in each of these areas are the ones who tend to be viewed both subjectively and historically as the most successful overall; those that fall short of the mark in one or more are often considered forgettable, if not regrettable.37 Czars While chiefs of staff manage the entirety of the White House apparatus, sometimes despite even the strongest working relationships between presidents and their “javelin catchers,” presidents need more immediate, high-profile, and policyspecific administrative help.38 In such situations, presidents can reach beyond the

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White House to bring in talented leadership to help mitigate pending concerns. As Bradley Patterson notes, “when an overwhelming problem lands in the president’s lap or a new initiative is aborning, he can bring in a White House assistant— perhaps a ‘czar’ or ‘czarina’—to add the new, needed focus and energy to deal with it.”39 The usage of so-called czars has been present since the early part of the twentieth century, with presidents such as Woodrow Wilson and Franklin D. Roosevelt leaning on key individuals to help with war and economy-related problems. They became a beltway mainstay, however, only in the Richard Nixon era. More recently, in the George W. Bush and Barack Obama administrations, czars have proliferated, to the point where two to three dozen serve in different capacities at the same time, though in many cases this perceived expansiveness is due to claims of czardom coming from multiple perspectives beyond just the president’s, including Congress, national political party leadership, and, more recently, oppositional political commentators. Over time, the media has followed suit and has often referred to certain appointees as czars even if the president or those actual government officials have not. In many ways, the use of the term czar to describe certain appointees can be both confusing and misleading to the public. Presidents have typically adopted the term for appointees as a way to simplify their official titles while simultaneously showcasing the symbolic and substantive importance of the policy superaide’s role. Consequently, the use of such lingo and the disparity in its use between administrations and the media has spurred debate over the growing number of czars, as well as their legitimacy and legal authority. In general, we posit that the term czar is less an issue than is the influence such personnel often enjoy, whether they exert their influence beyond their legal authority, and, if so, what—if anything—can be done about it. Accordingly, Bradley Patterson puts the use of the term in perspective as follows: “‘Czar’ is not an official government title of anybody; it is a vernacular of executive branch public administration, harking back—in one account—at least to the Coolidge years. It is a label now used loosely hereabouts, especially by the media.”40 Unsurprisingly, then, czars often have different levels of administrative clout and access to the president. Further, some czar positions have seemingly become institutions unto themselves, as is the case with czars in charge of national policies toward the war on drugs or AIDS. Others deal with temporary but highly salient problems yet have significant presidential support and access, such as individuals like Kenneth Feinberg, the Obama administration’s czar in charge of overseeing Wall Street bonus pay and managing the BP escrow account for victims of the corporation’s Deepwater oil well blow-out in the Gulf of Mexico. Staff Secretary The staff secretary of the White House is charged primarily with supervising the communication of messages and the circulation of memos and other documents between the president and his senior staff. In doing so, the staff secretary must

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make key decisions concerning “what the President must see, what he should see to make informed decisions, and what he prefers to see.”41 Recommended by the first Hoover commission and eventually created during the Eisenhower administration, the staff secretary also oversees the offices of Executive Clerk, Records Management, and Correspondence. As Karen Hult and Kathryn Dunn Tenpas point out, the material flowing into the staff secretary’s office covers a wide range: presidential decision memos, bills that Congress has passed and associated signing or veto recommendations, drafts of presidential speeches, standard forms requiring the president’s signature, the daily briefing book to prepare the president for the next day’s schedule, White House guest lists, samples of personal mail from friends and colleagues, and presidential “night reading,” “weekend reading,” and “trip reading.” More recently, the staff secretary has also played a key role in the speech clearance processes once a draft of a presidential address has been produced.42 Press Secretary One of the most difficult positions within an administration is press secretary. The press secretary serves four principal roles: information conduit, constituent representation, administration, and communications planning. Press secretaries are primarily responsive to news organizations and act as a main surrogate for the president they serve. In dealing with the media, press secretaries must be responsive to the president and White House staff in making sure the right information is prepared for transmission to news organizations. The Press Office is organized “into a two-tiered West Wing operation divided among the Upper Press and Lower Press and a unit located in the Eisenhower Executive Office Building.”43 The most difficult part of a press secretary’s duties is arguably the hour or so a day one spends going on the record (often on live television these days) to answer media questions about an administration’s most recent actions and level of performance. The most successful press secretaries are able to balance accuracy and speed when dealing with media questions. Also important to mention is that the press secretary also deals with contacting and communicating with certain specialty and out-of-town press. White House Counsel The White House counsel serves as the top advisor to the president when it comes to legal issues and oversees the president’s interactions with other government and nongovernment actors with a watchful eye for any legal problems that might arise. There are many tasks that the White House counsel must consider when looking out for the legal interest of a president and his administration: monitoring ethics matters; coordinating the president’s message and agenda within the executive branch units; negotiating on the president’s behalf with Congress and other vectors; recommending actions to the president; and translating or interpreting the law in its broadest context throughout the executive branch. In short, the White

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House counsel serves as the “president’s lawyer” or, perhaps more accurately, the “presidency’s lawyer.”44 Director of the Office of Personnel Management The director of the Office of Personnel Management (OPM) is in charge of seeking out those individuals who will serve in the president’s administration. Newly elected presidents depend heavily on the OPM to help them hit the ground running with a strong foundation of staff recruited and ready to go by the time the president is sworn into office. The OPM is largely responsible for taking care of the security clearances necessary for personnel to pass before serving in an administration. Specifically, the director of the OPM oversees the attainment of all the different types of presidential appointments, which include PAS (presidential appointee requiring Senate confirmation), PA (presidential appointee not requiring Senate confirmation), non-career positions in the Senior Executive Service (SES) and all “schedule C” positions below them, as well as all other White House staff position appointments. For schedule C appointments, which are established by the relevant departments or agencies, the director of the OPM must certify them as being “policy-making” or “confidential.”45 National Security Advisor The national security advisor (also known as the assistant to the president for national security affairs) serves as chief advisor to the president on national security. Presidents have had much freedom in determining the role of the national security advisor across administrations. Generally speaking, the national security advisor role has been known as one of the most influential positions for having the president’s ear and impacting policy. For Richard Nixon, for example, national security advisor Henry Kissinger greatly centralized control over national security policy.46 In large part, the national security advisor serves as a source of personal advice and counsel to the president, often as a focal channel for information during situations of crisis. The national security advisor also organizes the president’s daily national security briefing, taking care to communicate relevant information to and from other principals, and all the while looking out for the president’s political interests concerning national security issues.47

Recent Research Trends and Future Directions Although scholars have been studying the individual personnel components of the White House staff for decades, and in the process creating a rich trove of descriptive knowledge, in recent years some scholars have been examining research questions that place the White House staff in the middle of more complex phenomena. For example, George Krause has linked White House personnel dynamics with an ongoing long-term decline in presidential domestic policy activities, concluding

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that an ever-enlarging White House has hampered presidential efforts to engage the process, thus weakening the executive branch’s institutional policy action advantage.48 In addition, Andrew Rudalevige has provided the first major quantitative study of when presidents are most likely to centralize, the implications and risks of centralization, and the trade-offs between presidential management of the policy development stage and policy success in Congress. He finds that although presidents prefer the approach, there is little evidence that centralization dominates presidential policy making and no evidence of an overall increase in the level of centralization over time.49 As we move forward with a new generation of White House staff scholarship, we should see a continuing dedication to both perspectives discussed previously: descriptive investigations into specific organizational dimensions of the White House staff and systematic empirical examinations of how the staff functions in complex political and policy environments. In particular, we have identified four fruitful areas of inquiry that merit pursuit. First, as Brandice Canes-Wrone has argued, scholars should take steps to link the politics of presidential staffing with the public presidency.50 In previous research, we have shown a relationship between public opinion dynamics and presidential staffing decisions, but this work denotes only the tip of this analytical iceberg.51 Second, as the study of presidential transitions has been such an important dimension of the scholarly approach to the White House staff, we contend that a focus on administrative carry-over from one administration to the next is worth examining, both in light of explaining when it does and does not occur and what the consequences of the trade-off between expertise and loyalty are for a new administration. Third, although presidency studies have moved in great strides away from their legalistic roots over the last several decades, this area of the institution would benefit from increased research synergy along the lines of evaluating the legal frameworks that guide and constrain presidential administrative decision making. For instance, projects making study of presidential policy czars and discussions of the extent to which presidents can delegate key decision-making authority to subordinates are both subjects that will be colored significantly by public law. Finally, on a more ambitious developmental note, scholars would benefit greatly from an expanded disciplinary linkage with the White House, similar to what exists currently in the The American Political Science Association’s Congressional Fellowship Program. By funding scholars to work professionally in the White House, academic understanding of the institution can grow in ways that currently do not lend themselves to empirical verification.

Conclusion The White House staff provides the bureaucratic framework that makes presidential leadership possible. Even though modern presidents continue to face constraints by the constitutional structure and political reality in successfully straddling

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the expectations gap that continues to enlarge, the staff presents the president with his best opportunity to anticipate and exploit leadership opportunities in the best case, and manage crisis and cope with challenges in the worst. In recent decades, scholarly efforts to analyze the influence and importance of the White House staff has continued apace with the institution’s own evolution. However, in order for the field to continue its intellectual advance, the analytical efforts in this area must also continue to evolve in scope and sophistication.

Notes 1 For example, writing about Bill Clinton’s 1992 campaign promise to reduce the White House staff size by 25 percent, John Hart remarked it was not a “particularly controversial comment, partly because [Clinton’s campaign opponents] President Bush and Ross Perot had promised even larger reductions, and partly because, in the post-Watergate age, pledging to cut the size of the White House staff has become almost a ritual for all presidential candidates.” See John Hart, The Presidential Branch: From Washington to Clinton, 2nd ed. (Chatham, NJ: Chatham House, 1995), 1. 2 Ibid. 3 The acronyms APSA and MPSA refer, respectively, to The American Political Science Association and the Midwest Political Science Association, both of which host significant national-level academic conferences attended by thousands of political scientists. 4 Bradley H. Patterson, Jr. provides an excellent example of scholarship that evaluates the non-strategic dimensions of the White House staff in a systematic manner. See Bradley H. Patterson, Jr., The White House Staff: Inside the West Wing and Beyond (Washington, DC: Brookings Institution Press, 2000), and To Serve the President: Continuity and Innovation in the White House Staff (Washington, DC: Brookings Institution Press, 2008). 5 Matthew J. Dickinson, Bitter Harvest: FDR, Presidential Power and the Growth of the Presidential Branch (Cambridge: Cambridge University Press, 1996), 9. 6 Terry Sullivan, “Two Operational Dilemmas,” in The Nerve Center: Lessons in Governing from the White House Chiefs of Staff, ed. Terry Sullivan (College Station: Texas A&M University Press, 2004), 4. 7 Ibid, 4–13. 8 Patterson, Jr., The White House Staff, 36–9. 9 Ibid, 41. 10 Ibid, 40. 11 See John P. Burke, The Institutional Presidency: Organizing and Managing the White House from FDR to Clinton (Baltimore: The Johns Hopkins University Press, 2000). 12 See Dickinson. 13 See Charles E. Walcott and Karen M. Hult, Governing the White House: From Hoover through LBJ (Lawrence: University Press of Kansas, 1995); and Walcott and Hult, “White House Structure and Decision Making: Elaborating the Standard Model,” Presidential Studies Quarterly 35 (June 2005):303–31. 14 See Dickinson. 15 Patterson, Jr., The White House Staff, 10. 16 Terry M. Moe, “The Politicized Presidency,” in The New Direction in American Politics, eds. John E. Chubb and Paul E. Peterson (Washington, DC: Brookings Institution Press, 1985), 269. 17 See David E. Lewis, “Staffing Alone: Unilateral Action and the Politicization of the Executive Office of the President, 1988–2004,” Presidential Studies Quarterly 35 (September 2005):496–514. 18 Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990), 128–9.

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19 Andrew Rudalevige, Managing the President’s Program: Presidential Leadership and Legislative Policy Formulation (Princeton, NJ: Princeton University Press, 2002), 29. 20 Ibid, 74. 21 Ibid, 19. 22 See Moe, “The Politicized Presidency”; Moe, “The Politics of Bureaucratic Structure,” in Can the Government Govern? eds. John E. Chubb and Paul E. Peterson (Washington, DC: Brookings Institution Press, 1989), 267–329; Moe and Scott A. Wilson, “Presidents and Political Structure,” Law and Contemporary Problems 57 (1994):1–44; and Richard Nathan, The Administrative Presidency (New York: Wiley, 1983). 23 See Moe, “The Politicized Presidency.” 24 Moe, “The Politics of Bureaucratic Structure,” 280. 25 See Moe, “The Politicized Presidency,” and “The Politics of Bureaucratic Structure.” 26 Ibid. 27 José D. Villalobos and Justin S. Vaughn, “Presidential Staffing and Public Opinion: How Public Opinion Influences Politicization,” Administration & Society 41 (July 2009): 449–69. 28 See Moe, “The Politicized Presidency.” 29 See Hart. 30 See Lewis, “Staffing Alone.” 31 See Villalobos and Vaughn. 32 Paul C. Light, Thickening Government: Federal Hierarchy and the Diffusion of Accountability (Washington, DC: Brookings Institution Press, 1995), 7. 33 Since 1997, the White House Transition Project has crystallized this information into usable information by providing resources to new presidents to aid successful transitions into office, as well as to students of the presidency for furthering understanding of the White House structure. We used this resource accordingly to develop short descriptions of certain key personnel serving in the White House. 34 For more information on some of the staff positions not discussed in this essay, we recommend Martha Joynt Kumar and Terry Sullivan, eds., The White House World: Transitions, Organization, and Office Operations (College Station: Texas A&M University Press, 2003); Patterson, Jr., The White House Staff, and To Serve the President; and James P. Pfiffner, ed. The Managerial Presidency, 2nd ed. (College Station: Texas A&M University Press, 1999). 35 See David B. Cohen, “From the Fabulous Baker Boys to the Master of Disaster: The White House Chief of Staff in the Ronald Reagan and G.H.W. Bush Administrations,” Presidential Studies Quarterly 32 (September 2002):463–83. 36 According to James Baker, who served as Ronald Reagan’s first chief of staff (1981– 1985) and George H.W. Bush’s last chief of staff (1992–1993), “When you realize that even though the White House chief of staff has tremendous power, he or she, nevertheless, is not a principal but only a staffer—face it, it’s right there in the title—then it is easy to understand why some people also characterize it not just as the second-toughest job in Washington but as the worst job in Washington. As the only person in history who was dumb enough to have taken the job twice in his life, I confess that I was sometimes inclined to agree with that characterization.” See James A. Baker, III, “Governing from the White House,” in The Nerve Center: Lessons in Governing from the White House Chiefs of Staff, ed. Terry Sullivan (College Station: Texas A&M University Press, 2004), xiii–xiv. 37 See Cohen. 38 Former Carter administration Chief of Staff Jack Watson once referred to the position as “javelin catcher,” in reference to the position’s need to handle severe problems so that their employer, the president, does not have to. 39 Patterson, Jr., The White House Staff, 264. 40 See Patterson, Jr., To Serve the President. 41 See Hult and Kathryn Dunn Tenpas, “Office of the Staff Secretary,” The White House

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Transition Project, Report #2009-23, 2008, taken from the White House Transition Project archives, http://whitehousetransitionproject.org, 1999–2009. Ibid. See Kumar, “The Office of the Press Secretary,” The White House Transition Project, Report #2009-31, 2008, taken from the White House Transition Project archives, http://whitehousetransitionproject.org, 1999–2009. See MaryAnne Borrelli, Hult, and Nancy Kassop, “The White House Counsel’s Office,” The White House Transition Project, Report #2009-29, 2008, taken from the White House Transition Project archives, http://whitehousetransitionproject.org,1999–2009. See Patterson, Jr., Pfiffner, and Lewis, “The White House Office of Presidential Personnel,” The White House Transition Project, Report #2009-27, 2008, taken from the White House Transition Project archives, http://whitehousetransitionproject.org, 1999–2009. See John P. Burke, “The National Security Advisor and Staff: Transition Challenges,” The White House Transition Project, Report #2009-02, 2008, taken from the White House Transition Project archives, http://whitehousetransitionproject.org, 1999–2009. Ibid. George A. Krause, “The Secular Decline in Presidential Domestic Policy Making: An Organizational Perspective,” Presidential Studies Quarterly 34 (December 2004):779–92. See Rudalevige. Brandice Canes-Wrone, “Administrative Politics and the Public Presidency,” Presidential Studies Quarterly 39 (March 2009):25–37. See Villalobos and Vaughn.

9

The Presidency and the Executive Branch Matthew J. Dickinson

On April 20, 2010, an explosion rocked the BP-leased Deepwater Horizon oil drilling platform located 41 miles off the coast of Louisiana, killing 11 workers and injuring dozens more. The explosion, caused when methane gas leaking from an underwater well ignited, destroyed the drilling platform and fractured the wellhead pipe located a mile below the water’s surface. The heavily pressurized oil began spewing from the break into the Gulf of Mexico at a rate eventually estimated at some 35,000 to 60,000 barrels a day.1 In the next days and weeks, as BP engineers tried first to cap and then to contain the spill, the leaking oil formed a surface slick that eventually expanded to cover 2,500 square miles of Gulf water, endangering coastal wetlands, recreation areas, and fisheries. Additional oil plumes of indeterminate size lingered underwater, threatening to wreak further environmental damage. By July, amid uncertain cleanup efforts and with BP engineers still struggling to contain the leak that had already spewed more than three million barrels of oil into the Gulf, the Deepwater spill had developed into perhaps the worst environmental disaster in the nation’s history, one whose adverse consequences experts predict may impact the Gulf region for years—if not decades—to come.2 As it became clear that BP had no workable contingency plan to handle a spill of this magnitude a mile below the surface, critics wondered how it had been allowed to drill at that depth. That question focused attention on a heretofore little-known government agency: the Mineral Management Service (MMS, since renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement). Established in 1982 by an administrative directive issued by then-Interior Department Secretary James Watt, the MMS was a 1,700-person agency charged with overseeing the leasing of federal property for mineral extraction by private firms.3 Toward this end the MMS was charged with both collecting royalty payments from the private firms leasing federal property, and regulating how they did so. This included issuing permits allowing oil companies to drill in U.S. waters and inspecting the drilling rigs. In April 2009, the MMS authorized BP to drill at the Deepwater site. They did so, evidently, with only a cursory review of the assumptions built into BP’s application, including its faulty estimates regarding the likelihood, and subsequent consequences of, a well blowout a mile down in Gulf waters.4 As it turned out, such a lax permitting process seemed more the norm than the exception for the

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MMS; reports issued by the Government Accountability Office (GAO) and hearings by congressional oversight committees paint a picture of an under-staffed agency engaged in a cozy relationship with the very oil companies it was supposed to regulate.5 Witnesses told a House energy subcommittee investigating the oil spill that the MMS lacked the knowledge and manpower to adequately verify oildrilling permit requests, and thus often relied on these companies to, in effect, write their own permits.6 Meanwhile, news accounts, some citing previous government investigations, recounted instances of MMS members accepting gifts and other amenities from energy companies—a relationship nurtured by a revolving door through which former MMS employees went on to work in the industry the agency ostensibly regulated.7 The revelations regarding the MMS’s dysfunctional history only added to the political troubles the Gulf spill had caused for President Barack Obama. Already on the defensive against charges that his administration had moved too slowly to contain the spill, Obama now found himself pushed to explain what had gone wrong in the permitting process, particularly since less than a month before the April 20 Deepwater explosion he had proposed expanding off-shore oil drilling to areas along the eastern Gulf of Mexico and the north coast of Alaska.8 He did so while praising “new technologies that reduce the impact of oil exploration” and vowed to “protect areas that are vital to tourism, the environment, and our national security.”9 Two days after proposing expanded drilling, he issued an even more sweeping assurance: “It turns out, by the way, that oil rigs today generally don’t cause spills. . . . They are technologically very advanced.”10 With those words now thrown back at him, and under mounting pressure to demonstrate his leadership in response to the spill, Obama held a rare televised press conference on May 27 (his first in more than 300 days) to highlight the actions his administration had taken to date, but also to address the MMS’s role in the debacle. In his opening statement he acknowledged the “scandalously close relationship between oil companies and the agency [MMS] that regulates them,” and conceded that his administration had moved too slowly to sever that relationship when first taking office. But he also touted the steps taken after the spill by Interior Secretary Ken Salazar to reform the MMS, and promised more to come.11 Those steps included Salazar’s May 19 issuance of an administrative order dividing the MMS internally into three entities—the Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement, and the Office of Natural Resource Revenue—so as to separate the agency’s leasing-for-pay process from its regulatory and research functions.12 Moreover, on the day Obama gave his press conference, Salazar accepted the resignation of MMS director Elizabeth Birnbaum, who Obama had appointed at the start of his administration to head that agency. (She was eventually replaced by former Justice Department Inspector General Michael Bromwich). And, to drive home the point of organizational change, on June 18 Salazar issued a directive changing the agency’s name from the MMS to the Bureau of Ocean Energy Management, Regulation, and Enforcement.13

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BP, under close federal supervision, pinned its hopes of stemming the flow on the drilling of two relief wells scheduled to be completed in August 2010. At that time, more than 35,000 people, most under BP’s supervision, were involved in cleanup and containment efforts, which were hampered by jurisdictional disputes between BP and federal, state, and local authorities.14 Although Obama was successful in convincing BP to establish a $20 billion escrow fund to pay for the cleanup and related claims, his attempt to put a six-month hold on new off-shore drilling was struck down by a federal judge who sided instead with a coalition of oil drilling-related businesses, supported by the state of Louisiana. They had argued that the moratorium needlessly imposed an economic hardship without any evidence that existing drilling projects were unsafe.15

Lessons From the Spill The Gulf oil spill may be, in many respects, unprecedented but the lessons it teaches about the executive branch are by no means new. First, it is a reminder that although the press and the public often focus attention on the more visible side of national politics—elections and the words and deeds of elected officials, particularly the president and Congress—it is the less visible actions of the executive branch departments and agencies, such as the MMS, that often determine whether these officials succeed or not. Second, when the public focus does shift to the executive branch, it is almost always in response to a perceived bureaucratic failure. Government agencies are rarely rewarded for success. Third, and most critically, when a government agency does fail to carry out its mission, it is the president more than any other elected official who is held responsible. Obama is but the latest president to be reminded of these lessons. His immediate predecessor, George W. Bush, learned them as well. Bush embroiled the nation in a costly war in Iraq based in part on the Central Intelligence Agency’s (CIA’s) faulty intelligence estimates regarding whether Iraq possessed chemical or biological weapons of mass destruction—estimates whose uncertainty Bush evidently never fully grasped. He also suffered politically for the highly criticized response by the Federal Emergency Management Agency (FEMA) in the hours and days after Hurricane Katrina struck the Gulf coast in 2005. Some critics even hold Bush responsible for failing to prevent the September 11, 2001 terrorist attacks on the World Trade Center and Pentagon—a failure that occurred in part because the Federal Bureau of Investigation (FBI) and CIA did not share information regarding the Al Qaeda hijackers.16 Why are presidents so often held responsible for the perceived failures of the executive branch? Primarily because under the Constitution, as Alexander Hamilton first pointed out in the Federalist Papers, no one else appears so well situated to coordinate the executive branch as a whole, nor has as strong an incentive to do so. In Federalist No. 70, Hamilton links “bad government” to weak administration by a “feeble” president: “A feeble Executive implies a feeble execution of government. A feeble execution is but another phrase for bad execution; and a government ill-executed . . . must be, in practice, a bad government.”17 In Federalist No. 72, he

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reiterates the primacy of the president’s administrative role: “The administration of government . . . in its most precise signification . . . is limited to executive details and falls peculiarly within the province of the executive department.” For Hamilton, then, an effective government requires presidential leadership of the executive branch. Hamilton’s ideas have resonated with most presidents. But when pursuing their constitutional charge to “take Care that the Laws be faithfully executed,”18 presidents invariably confront a countervailing reality: The same Constitution that compels them to seek control precludes them from completely fulfilling this aspiration. As Hugh Heclo reminds us, the Constitution binds executive branch agencies to an independent legislature. Moreover, presidents must exercise managerial control through political appointees who often find that their influence depends on adopting the agency’s perspective rather than the president’s.19 This means that presidential efforts to control the executive branch are often resisted by Congress and even by their own political appointees, to say nothing of the permanent bureaucracy. The courts, too, can limit a president’s administrative influence, as shown most recently when a federal judge struck down Obama’s moratorium on off-shore drilling. The Constitution, then, creates a political dynamic in which presidents feel compelled to manage the executive branch, but lack the means to completely do so. That dynamic, moreover, has gradually taken on greater significance to presidents as the executive branch has grown in size, acquired new responsibilities, and become an important influence on policy. In response, presidents have sought more powerful management tools with which to overcome resistance to their exercise of administrative control. Those efforts have not completely overcome the constitutionally derived impediments to presidential leadership, but over time they have made the executive branch’s organizational structure and processes more amenable to presidential influence. The result, as Dan Carpenter notes, is that “the executive nature of the U.S. administrative state remains its most enduring and telling feature.”20 But there is a potential downside to that “enduring and telling feature”: Management strategies designed to enhance a president’s administrative control can come at the cost of executive branch organizations’ competence. If that loss of competence leads to bureaucratic failure, the consequences may weaken—not strengthen—presidential leadership. Presidents thus face a challenge: How can they make the agencies and departments in the executive branch more responsive to presidential control without eroding their ability to perform effectively? When does the desire for responsiveness undermine executive branch competence? The search by presidents to find the appropriate balance between loyalty and responsiveness has been the primary factor affecting presidential-executive branch relations since the nation’s inception. That search has been complicated, however, by the changing and complex nature of the executive branch itself.

The Executive Branch: A Many-Splintered Thing What is the executive branch? A succinct answer is that it consists of the major governmental departments and agencies responsible for carrying out the nation’s

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laws under the president’s direction. These governmental organizations generally perform some combination of three functions: carrying out essential government duties, such as defending the nation against attack or conducting international diplomacy; regulating the private sector; and transferring federal dollars to third parties. This description, however, does not begin to hint at the variegated nature of the histories, cultures, and functions of these organizations. Consider the most familiar part of the executive branch: the 15 major departments that comprise the traditional presidential “cabinet.”21 As Table 9.1 indicates, these cabinet departments vary widely in size—from the Department of Defense (DoD), which employs more than 700,000 civilians, to the much smaller Department of Education with a little more than 4,000 employees—as well as in budget, with the Treasury’s budget authority more than 60 times that of the Department of the Interior’s. Most importantly, of course, the missions of the departments differ. At the risk of oversimplification, some departments, like those of Defense, State, Justice, the Treasury, and Homeland Security (DHS), are responsible for handling essential national functions. Others, such as the departments for Agriculture, Commerce, Labor, Interior, Education, and Veterans Affairs, primarily provide information, subsidies, and other services to influential client groups. Finally, a third subset— the departments for Health and Human Services, Transportation, Housing and Urban Development, and Energy—use federal dollars to promote research and development in particular issue areas. Table 9.1 Executive Branch Employment Figures Department

Created 2009 2009 Budget 2009 Total 2009 Employees Authority Outlays Discretionary (in millions) (in millions) Outlays (in millions)

State Treasury Interior Justice Agriculture Commerce Labor Defense Health and Human Services Housing and Urban Development Transportation Energy Education Veterans Affairs Homeland Security

1789 1789 1849 1870 1889 1903 1913 1947 1953 1965

36,821 116,647 74,362 111,458 100,125 118,429 16,192 718,802 65,680 9,630

27,164 896,975 14,817 32,661 127,826 25,713 152,821 667,557 851,732 61,810

37,103 326,687 11,783 26,569 109,312 10,163 109,846 636,537 761,137 59,499

41,044 12,224 11,298 24,509 25,063 8,967 12,125 633,797 74,921 44,240

1966 1977 1979 1989 2002

56,335 15,621 4,053 290,908 179,380

112,344 68,557 131,891 96,929 46,007

69,354 23,948 32,409 94,914 51,636

68,778 25,154 44,971 46,580 48,967

Source: Office of Management and Budget, “Budget of the U.S. Government, Historical Tables: Budget Authority,” www.gpoaccess.gov U.S. Office of Personnel Management, Employment and Trends, Federal Civilian Workforce Statistics, bimonthly release, www.opm.gov

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This broad-stroke tripartite categorization should not be taken to suggest that each department is a unified organization with a single mission. In fact, most cabinet departments contain smaller agencies that often operate with relative autonomy in the pursuit of their own specific missions. Thus, although the MMS was part of the Department of the Interior, it conducted its permitting process with little oversight from the Interior’s political leadership. Indeed, Salazar’s muchvaunted reforms at the outset of the Obama administration apparently had almost no effect on MMS operations. The existence of these semi-autonomous agencies is a reminder that most of the cabinet departments, and even some of the agencies within them, are typically cobbled together from existing government bureaus and offices rather than created out of whole cloth with a single mission in mind. For example, the Department of the Interior was established in 1849 by combining the Patent Office, the Pension Office, and the General Land Office, among others.22 Similarly, the most recent cabinet addition, the DHS, was created by Congress in the aftermath of the September 11, 2001 terrorist attacks by merging portions of 24 existing government organizations. When George W. Bush signed the authorizing legislation into law, the DHS instantly became the third-largest cabinet department in terms of employees, but one that is still struggling to assimilate its constituent parts into a cohesive whole.23 Not all of these 15 departments originated with “cabinet” distinction; Agriculture was created in 1862, but did not receive cabinet status until 1889. The Bureau of Labor was first established within the Department of the Interior in 1888, and did not achieve cabinet designation until 1913. Education was initially part of the Federal Security Agency, and then folded into the cabinet-level Health Education and Welfare (HEW) department in 1953 before being hived off to form a separate Education cabinet department in 1979.24 Cabinet designation, then, is no guarantee that a department is a unified entity with a single mission. The façade of cabinet designation may conceal the existence of several agencies or bureaus, each operating with relative autonomy in pursuit of missions that are unrelated or even in tension with one another. If we are to understand what a cabinet department does, then, we must look more closely at the organizational history of its constituent elements. The MMS, for example, was established in 1982 within the Department of the Interior by combining elements of the U.S. Geological Survey, the Bureau of Land Management, and the Bureau of Indian Affairs, which dealt with the leasing of federal lands to private parties. For the most part, these agencies focused on the surveying and leasing of government lands—not on environmental issues. Knowing the MMS’s origins, it is perhaps less surprising that its permitting process centered primarily on revenue generation rather than on concern for the environment. Moreover, some of the nation’s most prominent agencies, such as the CIA, the Environmental Protection Agency (EPA), and the Army Corps of Engineers, are not located within the major cabinet departments at all. Some of these agencies, such as the EPA and the General Services Administration (GSA), employ more people and spend more money than do some of the cabinet departments. The 2010

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U.S. Government Manual lists 59 such independent government organizations, in addition to several, such as the Smithsonian Institute, that have quasi-governmental status. Finding a way to neatly categorize these agencies is not easy; they differ in terms of the composition of the directing authority,25 the process by which officers are appointed and removed,26 the officers’ qualifications for appointment,27 and the methods by which they are financed.28 Harold Seidman and Robert Gilmour suggest that the most telling indicator of their significance may be the personnel pay rates of top-level executives as established by the Executive Schedule. The secretaries heading the 15 cabinet departments are paid at Executive Level I, the highest rate. Major agencies within the Executive Office of the President (EOP), such as the head of the Office of Management and Budget, are often paid at Level II, while the heads of the various independent agencies may fall anywhere from Level II down to Level V, depending on the agency’s status. Beyond this, however, there is often no clear reason why one agency has cabinet rank and another does not. As Seidman and Gilmour conclude, “The differences have their roots in custom and tradition and cannot be discovered in law books.”29 More importantly, despite differences in status, there is no clear distinction in power or authority between cabinet departments and independent agencies.

Government By Proxy? At this point the reader may be tempted to conclude that there is no useful way to generalize about the executive branch. That conclusion would be premature. If we step back from looking at differences between individual agencies, and consider instead aggregate trends in government employment and budgets since 1940, a clearer picture emerges. Not surprisingly, both budgets and employees have increased during the last seven decades. However, when we chart the relative growth of the two in terms of percentage changes, we see that outlays are growing much more rapidly than is federal employment. As of 2008–09, the federal government employed more than 1.3 million civilians, almost three times the number of employees it had in 1940. In that same period, however, government outlays, as measured in constant dollars, grew 26 times larger, from $117 billion to $3.1 trillion by the end of the 2009 fiscal year. By far the greatest portion of that increase in spending is due to non-defense related activities. In other words, the ratio of what the federal government does, as measured by the money it spends, versus how many it takes to do it, as measured by federal employees, has steadily increased since 1940. This trend hints at two developments that have tended to complicate presidential efforts to manage the executive branch. First, a growing proportion of what government does is disburse checks for entitlement programs, including Social Security, Medicare and Medicaid, pensions, unemployment insurance, and other income maintenance policies. Almost half of the current federal budget goes toward spending by these programs. Because they are entitlement programs that are not funded, for the most part, through the annual budgetary process, they

3,500.0

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0.0

Year Total Outlays Executive Branch Civilian Employment

Figure 9.1 Growth in Federal Outlays and Executive Branch Civilian Employment, 1940–2009 Sources: U.S. Office of Personnel Management, “Historical Federal Workforce Tables: Executive Branch Civilian Employment,” www.opm.gov; Office of Management and Budget, “Budget of the U.S. Government, Historical Tables: Overview of Federal Government Finances,” www.gpoaccess.gov

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Percentage Growth Rate

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Figure 9.2 Relative Rate of Growth in Federal Outlays, Executive Branch Civilian Employment, and Number of Pages in the Federal Register, 1940–2009 Sources: U.S. Office of Personnel Management, “Historical Federal Workforce Tables: Executive Branch Civilian Employment,” www.opm.gov; Office of Management and Budget, “Budget of the U.S. Government, Historical Tables: Overview of Federal Government Finances,” www.gpoaccess.gov

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3,500.0

Total Outlays National Defense Nondefense

Constant (FY 2005) dollars, in billions

3,000.0

2,500.0

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1940 1942 1944 1946 1948 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008

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Figure 9.3 Growth of Federal Outlays, 1940–2009 Source: Office of Management and Budget, Budget of the U.S. Government, Historical Tables: Composition of Outlays, (Washington, DC: U.S. Government Printing Office)

Constant (FY 2005) Dollars per Employee

2500000 2000000 1500000 1000000 500000

1940 1942 1944 1946 1948 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008

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Figure 9.4 Ratio of Federal Outlays to Executive Branch Civilian Employees, 1940–2009 Sources: U.S. Office of Personnel Management, “Historical Federal Workforce Tables: Executive Branch Civilian Employment,” www.opm.gov; Office of Management and Budget, “Budget of the U.S. Government, Historical Tables: Overview of Federal Government Finances,” www.gpoaccess.gov

are less amenable to presidential administrative control. Instead, expenditures for these programs are determined by how many people qualify to receive benefits, rather than by how much Congress or the president decides to spend each year.

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Second, an increasing number of government programs are funded by federal monies, but administered by third parties, particularly state and local governments but also private organizations. After leveling off in the Ronald Reagan–George H.W. Bush decade, federal outlays to state and local governments resumed their climb, reaching almost $500 billion (constant 2005 dollars) today. Although budgetary estimates of the money spent on contracting to private groups is only available for recent years, they also are trending upward; the federal government paid approximately $538 billion to private companies in 2009, an amount more than double what it paid in 2000 and similar to what it pays out to state and local governments.

Billions of Constant (FY 2005) Dollars per Employee

600.0 500.0 400.0 300.0 200.0 100.0

1940 1942 1944 1946 1948 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008

0

Year

Figure 9.5 Growth of Total Outlays for Grants to State and Local Governments, 1940–2009 Source: Office of Management and Budget, Budget of the U.S. Government, Historical Tables: Federal Grants to State and Local Governments (Washington, DC: U.S. Government Printing Office)

Billions of Dollars

600 500 400 300 200 100 0 2000

2001

2002

2003

2004 2005 Year

2006

2007

2008

2009

Figure 9.6 Growth in Federal Contracts, 2000–2009 Source: Office of Management and Budget, “Federal Spending Trends,” www.usaspending.gov

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The overall impact of these trends is to, in Heclo’s phrase, “promote the idea of government by remote control.”30 That is, the great growth in government is not in programs administered at the national level, but rather in those programs that are outsourced to third parties, either at the state and local level or in the private sphere. To retain some semblance of control over this government by proxy, federal officials have typically attached rules and regulations stipulating how this federal money can be spent. Figure 9.2 lists the percentage change in the annual number of pages in the Federal Register, a simple but telling measure of the growth of administrative rules and regulations. Note that its rate of growth is comparable to that of budget outlays. The aggregate data, then, suggests that the outsourcing of government functions first highlighted by Heclo in the 1970s continues unabated. Now one can argue that in the post-New Deal era of structural budget deficits and increasing public distrust of government solutions to social and economic problems, a policy of government by proxy makes eminent sense. First, it allows government to expand its policy reach without establishing a massive federal bureaucracy. By relying on third parties with special expertise or competencies, moreover, government can do more, and do it more effectively. And devolving some functions to state and local governments that are, in theory, more responsive to the public, may strengthen federalism. Of course, as Paul Light points out, this strategy has the additional political benefit of helping to hide the true size and cost of government.31 But the outsourcing of government functions carries significant risks as well. First, it opens up the possibility that the third party will implement a government program in a way that does not comport with presidential and congressional intent. This is particularly problematic when private organizations expropriate public authority for their own ends. To illustrate, consider the MMS’s relationship to the oil industry. Not surprisingly, given its limited resources in staffing and money, the MMS relied on the oil industry to provide technology and expertise to locate drilling areas in federal waters and assess their potential market value before putting them up for auction for leasing rights.32 It is true that the money from these leases made the MMS the second-highest source of revenue for the federal government (after the Internal Revenue Service).33 But Congress repeatedly questioned whether the MMS was charging enough for these leases, with members suggesting that the MMS’s reliance on oil industry expertise may have led it to accept less than full value. Moreover, because the MMS had limited resources for inspecting these sites once the drilling commenced, they again had to rely on oil industry assurances regarding drilling safety and contingency plans to deal with deep-water spills.34 The issuance of rules and regulations, of course, is meant to prevent third parties from contravening presidential and congressional intent. But this strategy carries its own risk. For one, it is hard to know from a distance if these administrative directives are being followed. In the MMS case, it appears they were not, at least not very diligently. Adding still more rules, however, risks inundating third parties

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with red tape, thus undercutting the benefits of government by proxy, by stifling bureaucratic initiative at the point of program implementation. There is an additional problem with government by proxy. Contracting out for services, or even privatizing them, can erode a government agency’s core competency at carrying out its central mission. Strictly speaking, of course, the MMS was not formally outsourcing its function to private industry for a fee. But the practical effect was much the same. Over time, critics contend, the MMS’s concern, prodded by congressional inquiries, to maximize revenue came at the cost of its regulatory effectiveness; by relying on the oil industry to carry out key functions, the MMS lost a core competence (if it ever possessed it) that was central to its mission. That erosion of regulatory competence was the primary justification for Salazar’s decision, in reorganizing the MMS, to separate its revenue-collecting function from its regulatory duties. If this argument is correct—if elected officials continue to invest in a strategy of government by proxy—it poses potentially ominous implications for the ability of presidents to fulfill the Hamiltonian expectation of leading the executive branch. The outsourcing of functions may pay political dividends for members of Congress who wish to provide government services without appearing to increase the size of government. But it is the president, more than any other official, who bears the consequences when this strategy backfires.

Government by Proxy: How New? If we assume that the MMS’s dependence on private groups to carry out its mission is not an isolated incident and instead reflects a more pervasive reliance on government by proxy, as suggested by the trends in government spending, employment, and rules and regulations, we might still ask: Is this really new? After all, political scientists writing in the 1950s and 1960s documented the existence of “iron triangles”—enduring alliances among private groups, congressional oversight or appropriations committees, and the relevant executive branch agencies—that appeared to control policymaking across a range of policy sectors, from agricultural commodities to public works to military contracting.35 At first glance, the process that led to the Deepwater Horizon incident seems to be another classic illustration of policymaking controlled by an iron triangle, this one composed of oil companies and related industries, members of Congress representing regions highly dependent on the oil industry, and the MMS itself. If so, how much more difficult is the president’s managerial task in the current context? The evidence suggests it is much more difficult. To begin, as Heclo suggested nearly three decades ago, the iron triangle model was “not so much wrong as it was dangerously incomplete.”36 Several trends in the last half-century, including greater policy complexity and congestion, and more transparency in government operations combined with a diffusion of political control, have—if anything— made that model even less relevant today. Those trends are clearly visible in the aftermath of the Deepwater Horizon platform explosion. To begin, the complexity of the issues commonly addressed

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by government today cuts across existing bureaucratic jurisdictions, complicating decision making and rendering it difficult to determine accountability. The Gulf spill is a perfect illustration: the Coast Guard ostensibly took charge of cleanup operations, but that required close consultation and coordination with the Army Corps of Engineers, the Department of the Interior (including the MMS), the National Guard, and the EPA, as well as state and local authorities. The high number of agencies involved, some with different missions, confused and lengthened the chain-of-command and led to jurisdictional disputes.37 For example, when a Florida county sought to prevent oil from reaching the county coastline by using several floating barges, a submerged oil-catching curtain, and a wall of air projected from an underwater pipe, it waited two months for approval from state and federal officials. Second, the complexity of the issues related to the spill, which Obama and his officials had to address—calculating the rate of oil flow and its likely dispersion pattern, estimating the possible environmental impacts of the various control and containment possibilities, and, not least, figuring out how to stem the leak, taxed the administration’s technical capabilities and knowledge. Ultimately, executive branch agencies were forced to reach out to specialists, including engineers, biologists, hydrologists, and geologists working in the private sector, at universities, and in think tanks for assistance. For example, the Army Corps of Engineers, in rejecting a Louisiana state plan to dump large rocks to create a barrier preventing oil from reaching the coast, based its decision in part on consultations with scientists working in other government bureaucracies but also with private environmental interest groups who said the rock berm would damage existing barrier islands.38 The Obama administration’s reliance on a wide range of specialists to deal with the oil spill perfectly illustrates a broader trend first highlighted by Heclo three decades ago, when he identified the growing influence of knowledge-based “issue networks” composed of “technopols” who move seamlessly between appointed positions in government bureaucracies and private organizations. These networks did not supersede the system of iron triangles so much as they were overlaid on it, further complicating the president’s managerial task. The number of participants in these issue networks has exploded in recent years, driven in part by the supply of policy experts churned out by think tanks, policy schools, and public interest organizations. As government programs increase in scope and complexity, these technopols grow more influential, either by serving as consultants to government or by occupying executive branch positions themselves. In contrast to participants in the traditional iron triangles, however, issue activists are motivated less by material goods than by ideas and ideals regarding what makes “good policy.” This has both positive and negative consequences for the president’s ability to manage the executive branch. On the positive side, policy specialists provide a ready source of expertise with which to tackle problems. It was specialists in the private sector who first alerted the Obama administration to the fact that BP was underestimating the amount of oil spilling into the Gulf. On the other hand, as Obama and his aides discovered, because issue experts tend to view problems from their own relatively narrow

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specialty, their increased participation in policy debates can make it much harder to come to a consensus regarding how to solve the problem. For instance, when BP began applying chemical dispersants to help dissipate the oil in the water, the EPA—prodded by environmental groups—objected, arguing that the dispersants BP chose were potentially toxic when used on the scale BP had proposed. Cleaning the oil from the water in an environmentally sensitive manner proved more difficult than simply choosing the quickest removal method. The growth in the number of issues that cut across traditional bureaucratic jurisdictions and the proliferation of issue specialists willing to participate in addressing those issues have not happened in isolation. Instead, these developments have taken place within an increasingly open and contentious political climate. Consider the changes to the media during the last several decades. Four decades ago, live television broadcasts of breaking events were rare and most people received their news from one of the three major networks’ nightly newscasts. Today, as the Gulf story illustrates, live news coverage is far more common, and news outlets have proliferated. As the spill took place, viewers were able to access scenes from the Gulf, even including video of the spill itself, in real time on television and computer screens. Partisan-leaning cable news shows posted graphics indicating the number of days since the oil spill began. Bloggers catering to specialized and often opinionated audiences debated Obama’s handling of the crisis. The immediacy and the pervasiveness of this “narrowcasting,” in which media coverage is fractured into smaller but more ideologically slanted outlets both on cable television and in the internet-based blogosphere has made it far more difficult for Obama to shape the public narrative of the spill. Congress, too, has changed considerably from how it was described in the iron triangle literature. Committee and subcommittee hearings are now open to the public. This provides an opportunity for issue activists—most of whom hold views relatively more ideologically extreme than those held by the general public and who are far less amenable to compromise—to push members of Congress to adopt these less-mainstream views, and to punish those who do not fall in line.39 This pressure often comes by channeling campaign donations and other electoral resources to the more extreme candidates in a congressional race, particularly during the primaries in which issue activists form a greater proportion of the electorate. The result is a Congress with a shrinking moderate middle. The polarization of Congress, moreover, has occurred simultaneously with a process of party sorting that has purified both parties by eliminating members whose views were often closer to those of the opposition. This process began during the 1960s, when a combination of residential migration patterns and technological innovations helped transform the once solidly Democrat South into a Republican stronghold. As the Democrat Party shed its southern conservative congressional wing, and liberal Republicans in Congress lost their seats in the northeast, both congressional parties became more internally homogenous as well as farther apart from one another, ideologically.40 The upshot of this has been the nationalization of congressional elections, and of political discourse more generally, as members in each party see their political

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fortunes ebb and flow in unison.41 This means, as Frances Lee demonstrates, that both the majority and minority parties believe their political fate is more closely linked to the president’s. This gives both sides a stronger incentive to make the president’s performance, including his administrative effectiveness, the focal point of political debate. With one side pushing for the president to “win” the debate, and the other equally vested in seeing him “lose,” policy compromise is that much less likely.42 What does all this mean for the president’s ability to manage the executive branch? The growth of policy specialists and single-issue groups in the context of a more nationalized and polarized political setting has had two effects: It has tended to open up policy debate to wider participation and scrutiny, and it has infused that debate with new and often very contradictory perspectives, making it that much harder to achieve policy solutions and political consensus. The collective impact has been to increase pressure on the president to strengthen his control over the executive branch, in order to bring coherence to policy debate and achieve political closure. At the same time, however, it has made exercising that administrative control far more difficult. It is a situation the framers could hardly have envisioned when they considered how much administrative power to allocate to the president.

The Politics of Executive Branch Design How did presidents arrive at this administrative dilemma? At the most basic level, the growth of the executive branch reflects the acquisition of new functions and responsibilities by the national government. That process started slowly but accelerated in the post-Civil War era and has continued more or less steadily thereafter. The overall long-term trend is clear: more bureaucracies employing more civilians and spending more money across a growing array of policy areas. Although there are no clean demarcation points delineating specific periods or patterns of growth, Dan Carpenter presents a useful historical framework that divides the evolution of the executive branch into three historical phases: the initial founding in 1789 through the end of Reconstruction in 1876, a second phase lasting to the end of World War II, and the modern era, dating from 1947 to the present.43 In the current period alone, at least through 1997, David Lewis counts 182 government agencies created by statute, and another 248 established by administrative action, such as reorganization authority granted to the president.44 To be sure, not all these agencies were created de novo; they often resulted from the recombination of existing agencies. Nor are they of equal significance; more than half of the agencies created by administrative directive do not even warrant a separate line item in the federal budget. Lewis notes, moreover, that 57 percent of the agencies created in this period were eventually terminated, although their functions were often absorbed by other government bureaucracies.45 This aggregate data, however, masks tremendous variation in the process by which individual agencies are created, grow and, in some cases, are terminated. It is impossible in a book chapter to do full justice to the myriad ways this process

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unfolded. At best we can outline the fundamental structural dynamics that govern it. The growth of the executive branch, as described below, was dictated by the interplay of partisan and institutional factors against the backdrop of a constitutional system that compels presidents to seek managerial control but prevents them from fully achieving it. The first mover in this process is undoubtedly the Constitution. To be sure, it provides little specific reference to an executive branch beyond a few oblique references to “executive departments” and departmental “officers.” Article II gives the president the power to appoint, with Senate consent, ambassadors, ministers and consuls, justices and “all other Officers of the United States,” and authorizes him to “require the opinion, in writing, of the principal officer in each of the executive departments.” However, in a reminder that presidents must compete for influence over the executive branch, the Constitution provides that Congress decides where to vest control of the “appointment of inferior officers”—in the courts of law or in the heads of departments.46 That constitutional-mandated system of shared administrative powers at the national level, overlaid on the existing system of state governments, largely determined the general thrust of executive branch development during the next two centuries, even if it did not determine the particulars. It did so by setting out the incentives—both institutional and, eventually, partisan—that shaped the interaction of the president and Congress during the 220-year process of building the executive branch. Generally speaking, presidents sought to mold that developmental process in ways that maximized their managerial control. Congress, depending on its partisan composition and how strongly it focused on its institutional interests, sometimes found itself allied with the president’s managerial goals, but at other times it resisted them. The framers of the Constitution, of course, understood that the newly established government would need executive departments to perform essential government functions. They were familiar with the major ministries of the British crown and had established, under the short-lived Articles of Confederation (1781– 89), three executive departments responsible for finance, the military, and foreign affairs. Accordingly, after the Constitution was ratified, one of Congress’ first acts in 1789 was to re-establish those departments in the form of Treasury, War, and State, as well as creating an Office of Attorney General. Along with the Post Office Department (which did not achieve cabinet status until 1872) and a Navy department that split off from War in 1798, these constituted the major departments of the executive branch for the next half-century. Initially, the partisan and institutional struggle between president and Congress regarding executive branch control was somewhat muted. This was because, as James Q. Wilson documents, there was not much to fight over; the executive branch was small in both size and scope of activity. At its inception, the Department of State had nine employees, not counting the secretary of state. The War Department numbered only 80 civilians a decade after its creation, with an army of only several thousand soldiers. The Department of the Treasury was perhaps the most powerful department, since it collected taxes, ran the national bank,

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and managed the public debt, but this was in the context of a still-tiny national government. From the citizen’s perspective, the most important department was probably the post office. During the period from 1816 to 1861, the executive branch grew, as measured by the number of employees, from 4,837 to more than 36,000, but almost all of that was driven by an expansion in the number of post offices, itself the result of a growing population and commercial sector.47 Beyond providing military protection to the frontier, delivering the mail, and occasionally subsidizing internal improvements, such as building canals, the executive branch was not much of a presence in most people’s lives. It was not until 1849, 60 years after the nation’s founding, that another new executive branch department—Interior—was added.48 That slow rate of growth began to change after the Civil War and the end of Reconstruction, due to the expansion and diversification of the nation’s economy in the second half of the 19th century. Between the start of the war in 1861 through 1900, the executive branch added 200,000 civilian employees. Although both the Civil War and the Spanish-American War occurred during this period, less than a quarter of that growth in employment was defense related. About half consisted of additional postal workers.49 The rest came about through the creation of new government departments formed specifically to cater to the interests of those working in emerging economic sectors, including farmers, manufacturers, and laborers. In 1862 the Department of Agriculture was established, followed by a Bureau of Labor in 1888.50 In 1903 Labor expanded to become the Department of Commerce and Labor, but it was split into two separate departments 10 years later at labor unions’ insistence. In contrast to the first wave of executive departments established at the nation’s founding, which oversaw such essential government functions as diplomacy, defense, and finance, this second wave of new departments more directly catered to groups with growing political clout. They did so by serving as repositories of statistical information, expertise, and advice, and eventually by working through Congress to provide more tangible group-based benefits, such as agricultural subsidies and veterans’ pensions. The development of these client-oriented departments was an explicit response not just to the development of groups with shared economic interests, such as labor unions and sector-specific manufacturing and industrial groups, but also to emerging professional classes. These new groups influenced executive branch growth on the supply-side as well, by providing new sources of government recruitment. Up to this time, hiring in executive branch agencies (with the partial exception of the military) had been based on political patronage—the winning political party rewarded its followers with government jobs. Because national politics in the period from the nation’s founding through the 1820s was dominated by the northeast-based Federalist Party and then the Virginia-centered DemocratRepublicans, most federal jobs through the 1820s went to a social network composed of “eastern elites.” That changed with Andrew Jackson’s election in 1828; under the direction of his chief political operative and eventual presidential successor, Martin Van

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Buren, Jackson expanded the “spoils” system to encompass his more rural, western-based constituency. The principle underlying the spoils system, however, did not change: when a new party gained a majority, there was wholesale turnover in federal employment. This meant, for example, that when the Democrats replaced the Whigs in power, Whig-appointed postal workers were all replaced by Democrat-sponsored ones. The great virtue of the spoils system is that it ensured that executive branch employees were very responsive to elected officials. In fact, federal workers were expected to contribute a portion of their salaries to the party in control, or risk termination. However, a hiring process based on who one knew was no guarantee of competence—an increasingly problematic issue as government tasks expanded beyond simple clerical work to embrace more technically demanding responsibilities. The dismal performance of a partially patronage-based system of military leadership at the outset of the Civil War served as an early warning sign regarding the dangers of the spoils system. By the 1880s a reform movement, galvanized in part by President James Garfield’s assassination by a disappointed office seeker, spurred the adoption of legislation to end the spoils system. The Pendleton Act, passed in 1883, was the first of a series of laws that—in addition to creating a three-person bipartisan Civil Service Commission (CSC)51 to oversee federal personnel policies—outlawed direct payment by federal employees to parties, instituted competitive examinations for hiring and promotion, and prevented the removal of employees for reasons other than inefficiency. Although civil service protection expanded slowly, by the end of World War II more than 80 percent of federal workers were protected by the merit system. Since then, however, many departments have opted to establish their own personnel system outside the civil service system, so that today only about half of the nation’s roughly 2.1 million civilian employees are under traditional civil service protection.52 Nonetheless, many of these separate personnel systems have adopted the basic tenets of the civil service system. If the second wave of client-oriented cabinet departments differed in function from the first wave, they shared a similar organizational form at the upper level: All were headed by a single executive appointed by the president with the Senate’s consent. Seidman argues that the single-secretary, department-based executive branch that was the norm through the end of the 19th century comported with the framers’ belief that multi-headed organizations were to be avoided because they weakened accountability. Moreover, presidential control over the executive branch was strengthened by placing administrative functions within departments led by a presidential appointee.53 In 1887, however, a new type of administrative agency appeared with the creation of the Interstate Commerce Commission (ICC). Its job was to regulate the emerging railroad industry, and it was the first sign of Congress’ willingness to move away from the traditional single-secretary, department-based organizational approach to executive organization.54 This new bureaucratic structure, in which agencies were headed by a multi-member and often bipartisan leadership directorate whose members served fixed terms, was inspired in part by the Progressive

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movement, which hoped to insulate these regulatory agencies from both the influence of private economic interests and from purely partisan control. The practical effect, however, was to make commissions less amenable to presidential influence, a point driven home by the Supreme Court’s 1935 decision in the case of Humphrey’s Executor v. United States. The case centered on Franklin D. Roosevelt’s (FDR’s) efforts to fire William Humphrey from the Federal Trade Commission (FTC), a regulatory agency established in 1913 to limit market collusion and monopolies by corporations. The court ruled that because the FTC was a quasilegislative body that exercised some judicial functions, the president could not fire an FTC member solely for political reasons. That decision distinguished regulatory agencies from the more traditional executive branch departments and agencies headed by a single secretary who did not perform “quasi-judicial” functions. In its previous 1926 ruling in Myers v. United States, the court had affirmed the president’s unilateral power to remove any executive officer appointed by him, with the advice and consent of the Senate, to head these traditional departments. The creation of the ICC signaled an increased willingness for Congress (sometimes even with presidential support) to establish executive agencies with new regulatory powers and structures outside the traditional departmental functions and format. Wilson suggests that these regulatory agencies tended to be formed in waves coinciding with periods dominated by progressive or liberal presidents supported by strong congressional majorities.55 Examples include the Securities and Exchange Commission (SEC, created in 1934), and the National Labor Relations Board (NRLB, 1938), both established by FDR when Democrats had large majorities in both chambers of Congress. These commissions exercised powers that ranged from the ability to set the rates industry charged customers, to establishing standards for products or services, or even bringing criminal charges against companies that violated those standards. But not all of these commission-style bodies were created to limit free enterprise. Some, such as the Civil Aeronautics Authority (created in 1938, and later renamed the Civil Aeronautics Board), the Federal Communications Commission (FCC, 1933) and the Maritime Commission (1936), were deliberately intended to nurture fledgling industries, often by establishing rules restricting entry or regulating competition between firms. Again, many of these grew out of existing bureaus that were often located in cabinet departments. For example, the FCC’s origins date back to the Department of the Navy’s bureau of marine radio regulation. The third phase of bureaucratic development beginning in the post-World War II era saw the creation of several more cabinet departments—Health and Human Services (formerly HEW), Veteran’s Affairs, Education, and Homeland Security— again, typically by upgrading the status of or combining existing bureaus and agencies. Regulatory commissions, such as the Consumer Product Safety Commission (CPSC, 1973), and the Occupational Safety and Health Administration (OSHA, 1970 [although officially located within the Department of Labor]) continued to be established. But the post-war period also saw a proliferation of a third type of executive branch agency: the so-called “independent” agencies—independent in the sense that they were not part of the traditional cabinet departments. Typically

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they were established to undertake a single primary task or function. For example, the National Aeronautic and Space Administration (NASA) was created in 1958 in the aftermath of the Soviet launch of Sputnik, the first manmade satellite. Its mission is to oversee the nation’s manned space program. The EPA, created in 1970, enforces the nation’s environmental regulations. In contrast to regulatory commissions, these agencies are typically headed by a single individual nominated by the president with the advice and consent of the Senate. As noted earlier, they are usually (but not always) smaller than the major departments and lack cabinet status as reflected in the lower pay scales for those heading independent agencies.56 In terms of authority, however, independent agencies do not differ from cabinet departments. We see, then, that the growth of the executive branch has been accompanied by a proliferation of organizational forms. But what explains the variation in the structural characteristics of these agencies? Carpenter warns of the scholarly “hubris . . . that a simple set of generalizations can explain behavior and operations across diverse agencies or over centuries of time.”57 But in the modern era, it appears that organizational structure, at least in part, reflects the institutional and partisan dynamics governing presidential-congressional relations in a system of shared powers. Lewis shows that of the 182 agencies created by statute during the 1947–97 period, 64 percent have at least one of four characteristics that make them less amenable to presidential control.58 Twenty-nine (16 percent) of these agencies possess all four characteristics. The likelihood that an agency will be structured in a way that makes it more insulated from presidential control goes up under conditions of divided government, when a president from one party confronts a Congress controlled by a strong majority of the opposing party. In contrast, when the government is unified, with strong majority partisan support for the president, Congress will be less likely to insulate a newly created agency from the president’s managerial control. Not surprisingly, agencies created administratively by the president, or his subordinates, tend to have fewer characteristics insulating them from presidential control.59 Lewis’ study addresses only the post-World War II modern era, of course. But his findings remind us that presidents are not passive bystanders when Congress creates executive branch agencies. Instead they will actively intervene to try and structure those agencies in ways that meet their policy and administrative preferences. Their ability to do so, however, is constrained by partisan and institutional factors playing out within a system of shared powers.

Managing the Executive Branch: The Perils of Politicization Most scholars date the advent of the modern presidency to FDR’s presidential tenure. Not surprisingly, the characteristics associated with modernization can all be linked in some way to FDR’s struggle to manage the executive branch, which had vastly expanded in size and importance as a result of his New Deal. His effectiveness as president, he realized, was tied directly to his ability to manage this administrative state, something he acknowledged when an aide asked him how the

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Republican presidential candidate Alf Landon might have defeated him in 1936. FDR replied, “I would say ‘I am for social security, work relief, etc., etc., but the Democrats cannot be entrusted with the administration of these fine ideals.’”60 As the first modern president, it is not surprising that FDR made the most concerted effort to restructure the executive branch of any president to date, through his establishment of the three-person Brownlow Committee, headed by public administration expert Louis Brownlow, in 1936. FDR charged the Brownlow Committee with conducting a thorough study of the executive branch, with an eye toward making his administrative authority more commensurate with his responsibilities. Previous presidents, dating back to Theodore Roosevelt’s creation of the Keep Commission in 1905, had commissioned studies of the executive branch. Typically, these early efforts were characterized by presidents as efforts to achieve economy and efficiency in government by eliminating waste and red tape, and generally putting government operations on a more business-like footing.61 Although the Brownlow Committee report, released in 1937, couched its findings in the neutral-sounding language of “administrative science,” it was clear to anyone who read it that this was more than simply another plan to save money. The broader purpose was to strengthen FDR’s managerial capacities. Toward that end, the committee recommended: 1) creating two new cabinet departments for public works and social welfare; 2) replacing all independent boards and commissions with single directors that reported to the president; 3) bringing government corporations within the jurisdiction of the cabinet departments and; 4) placing the administrative functions of all independent regulatory commissions within existing cabinet departments, with their heads appointed by the president, with senatorial consent. In addition, the committee recommended that the president be granted continuous authority to reorganize the executive branch.62 Congress, not surprisingly, saw the report in part as an effort to weaken its own ties to the executive branch, and it responded accordingly. In what was to be a preview of reorganization efforts to come, Congress granted FDR limited reorganization authority, subject to Congress’ exercise of its legislative veto. It stipulated that FDR could not use his reorganization authority to revamp the CSC, which oversaw executive branch hiring policies. FDR was also prohibited from changing the name or number of any of the existing 10 cabinet departments, and from reorganizing any of 21 other agencies specifically listed by Congress.63 Congress proved more willing, however, to let FDR expand his own staff support—something Brownlow had also proposed. In 1939, FDR used his reorganization authority to formally establish the Executive Office of the President (EOP), into which he moved the Bureau of the Budget (BoB). He also received authorization to expand his White House staff by up to six more aides, to add an assistant to handle personnel policy, and to create a policy planning office within the EOP. FDR’s failure to restructure the executive branch, even while beginning to broaden his staff support, points the way to the management strategies his successors would adopt. They proved no more successful than he at using their limited reorganization authority to bring some administrative coherence to the executive branch, and eventually even this power lapsed permanently in 1984,

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its demise hastened by a 1983 Supreme Court decision that ruled the legislative veto—which had given Congress the means to disapprove reorganization plans—unconstitutional.64 On the other hand, presidents have been much more successful in expanding their staff capacity, particularly within the White House Office, albeit in a more politicized fashion and to a far greater extent than FDR likely would have countenanced. The virtue of building up the White House is that it can be done without the need for Senate acquiescence (although the White House Office budget must be approved by Congress). Although vestiges of the FDR staffing model survived through Lyndon Johnson’s presidency, by the end of Richard Nixon’s time in office, it had been completely replaced by a much larger, White House-centered staff system, functionally specialized and hierarchically arranged. This larger and more specialized White House staff provides presidents, in theory at least, with enhanced control over fundamental administrative processes affecting the executive branch, including budgeting, policy and regulatory planning and development, and personnel hiring.65 Along with the institutionalization of specialized presidential staff support, presidents have pursued a second administrative control strategy: politicizing the executive branch. One method for doing so is to increase the number of upperlevel positions that can be filled with political appointees, and to use the enhanced White House personnel capability to nominate individuals to these positions who are loyal to the president and supportive of his policies. As Paul Light shows, this is precisely what has happened during the post World War II era. According to

900 800

Employees

700 600 500 400 300 200 100 1945 1947 1949 1951 1953 1955 1957 1959 1961 1963 1965 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007

0

NOTE: Combines WHO, NSC, OPD, Special Projects and Detailed Employees. Data on detailed employees not available for 2001, 2004–5, and 2008–9.

Year

Figure 9.7 “Real” White House Staff Growth, 1945–2009 Note: Combines WHO, NSC, OPD, special projects, and detailed employees. Data on detailed employees not available for 2001, 2004–2005, and 2008–2009.

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his calculations, the total number of senior executives and presidential positions in executive levels I through IV—the top management levels in executive branch agencies—grew by 430 percent from 1960 to 1992, from 451 to 2,393.66 These positions are staffed primarily by presidential appointments with Senate confirmation (PAS), and political appointees (as well as careerists) serving in the Senior Executive Service (SES).67 Although the pace of political thickening began slowing after Jimmy Carter’s presidency, it remains the case, as Tables 9.2 and 9.3 indicate, that cabinet departments and major independent agencies continue to be layered with political appointees at the upper layers.68 All told, presidents are responsible for placing some 550 to 600 PAS nominees in executive branch departments and agencies. An additional 10 percent of the roughly 7,000 SES officials in the upper management positions are also political appointees selected by the president or his aides. However, this thickening of political appointments at the top of the executive branch represents only the most Table 9.2 Executive Branch Positions Department

PAS

SES Career

SES Noncareer

State Treasury Interior Justice Agriculture Commerce Labor Defense Health and Human Services Housing and Urban Development Transportation Energy Education Veterans Affairs Homeland Security

222 33 17 225 16 23 19 53 20 15 23 22 17 15 20

119 82 165 98 114 132 68 323 278 57 147 330 57 247 58

36 23 30 45 43 33 29 95 48 18 31 30 13 8 61

Source: “The United States Government Policy and Supporting Positions (Plum Book),” 2008 edition, www.gpoaccess.gov

Table 9.3 Executive Branch Positions (Non-cabinet) Agency

PAS

SES Career

SES Noncareer

Army Corps of Engineers Social Security Administration National Science Foundation Small Business Administration National Aeronautics and Space Administration Environmental Protection Agency Corporation for National and Community Service

0 3 18 4 4 14 18

3 138 31 18 66 85 0

0 6 0 10 5 23 0

Source: “The United States Government Policy and Supporting Positions (Plum Book),” 2008 edition, www.gpoaccess.gov

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visible portion of politicization. Presidents also control appointments to some 1,600 so-called Schedule C positions. These are positions within the executive branch designated as confidential or of a policy-determining, as opposed to a primarily clerical, nature.69 Presidents, then, are directly or indirectly responsible for filling some 3,000 appointed positions (some requiring Senate approval) throughout the executive branch. Not all of this thickening is driven by successive presidents’ attempts to strengthen their managerial control, of course. Light argues that much of it is caused by a simple increase in bureaucratic responsibilities. Moreover, the degree of thickening, as Tables 9.2 and 9.3 indicate, varies by department. Lewis suggests that presidents will more aggressively politicize those departments whose policy preferences are farthest from their own.70 They will be less likely to do so, however, in agencies whose missions require substantial technical knowledge. Lewis’ finding points to a potential downside to presidential efforts to expand administrative control via a stronger White House staff and saturation of the executive branch with political loyalists. As I have argued elsewhere, the strategy can produce what I describe as the paradox of politicization: as executive branch agencies become more responsive to the president, they may also become less competent.71 The reason is that the layering of political appointees can insulate decision makers, including the president, from input by careerists who possess critical expertise for understanding and carrying out an agency’s tasks. The lack of input, in turn, can demoralize civil servants, leading to higher turnover and less commitment to the agency. The net result, through time, is to erode an agency’s capacity to carry out its mission. For example, Lewis provides evidence that the greater the degree to which FEMA was politicized, as measured by the number of high-ranking and Schedule C political appointees in its employee structure, the more poorly it performed in the period from its inception in 1978 through its transfer to DHS in 2002.72 In particular, Lewis links the poor response by FEMA during Hurricane Katrina to the politicization of the agency after its absorption by the DHS. FEMA’s poor performance was laid at President George W. Bush’s feet, and directly contributed to the Democratic takeover of Congress in 2006. It is a lesson that is undoubtedly not lost on Obama, as he struggles to adjust to the bureaucratic failure by the MMS that contributed to his own “Katrina.”

Conclusion Hugh Heclo, in his seminal study of American administrative politics, A Government of Strangers, described the struggle by presidents, presidential appointees, and high-ranking bureaucrats to control the executive branch as “usually a leap into the dark.”73 This chapter has sought, by drawing on existing research, to shed some light on that leap. It is one that every president and his subordinates must make, for reasons first described by Hamilton in the Federalist Papers—reasons that have taken on greater importance, however, particularly since the New Deal and the emergence of the modern administrative state.

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As Obama is discovering with the MMS and Gulf oil spill, no two leaps are alike, and one can never be sure how, or where, one will land. It is almost certainly true that he had, at best, a nodding acquaintance with the MMS when he took office in January 2009. Almost two years later, as Obama’s party heads into the crucial 2010 midterm congressional elections, he finds its success, and his future leadership, unexpectedly yoked to the failings of this relatively minor government agency—one he surely now knows all too well. Of course, all presidents—Obama included—understand from the moment they assume office the need to take charge of the executive branch. Typically they respond to this challenge in two ways: by using the White House-centered presidential staff system to control key administrative processes (budgeting, personnel hiring, regulatory and policy development) that affect how the executive branch operates, and by saturating the executive branch with political appointees loyal to the president and his policies. These strategies possess a superficial logic. In the short run they may make agencies more responsive to presidential directive. They have the added benefit of providing a means to place loyal supporters in government jobs: the modern-day equivalent of the “spoils” system. And in an era of “government by proxy,” in which government programs are increasingly outsourced to state and local agencies, and to private contractors, the need for presidents to control administrative processes, particularly budgeting and the development of rules and regulations, is more crucial than ever. But there are risks to an administrative approach that emphasizes political responsiveness. Evidence suggests that, through time, excessive politicization can weaken bureaucratic effectiveness. That, in turn, can undercut a president’s political standing. In this regard, the Gulf oil spill is an important reminder of the stakes involved in presidential efforts to control the bureaucracy. In an era of increasing policy congestion; a more open political process; the growth of new issue-oriented political groups; and the development of a 24-hour, seven-days-a-week news cycle, the repercussions from a president’s failure, real or perceived, to “take care” that the laws are faithfully executed is greater than ever. The MMS and the Gulf oil spill are but the latest proof of this. And yet the failure of the MMS to properly assess BP’s oil permit request, or to inspect the Deepwater Horizon rig, was not because it lacked political responsiveness to the president. It was because it lacked competence to carry out its regulatory mission. Whether due to a too-cozy relationship with the oil industry, a lack of resources, or a combination of both, the MMS failed its bureaucratic mission, and Obama is paying the political consequences. Gulf state residents are paying a price as well, in the form of polluted waters, contaminated wetlands and beaches, and economic devastation. No matter what the outcome of the Gulf spill, Obama will undoubtedly confront more incidents that will highlight the crucial link between presidential power and executive branch effectiveness. It may come in Afghanistan, where Obama has doubled down on a surge strategy whose success depends on the capabilities of the United States military. Or perhaps it will center on the actions of a heretofore relatively unknown agency, much like with the Gulf spill. In these cases he will be tempted to strengthen his managerial control over the agency in question.

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In so doing, however, he would do well to remember what Hamilton wrote two centuries ago, in Federalist No. 68: “[T]he true test of a good government is its aptitude and tendency to produce good administration.” Obama, like all presidents, must decide in balancing political responsiveness and administrative competence, where “good administration” resides.

Notes 1 Estimates of the amount of oil spilled differ depending on assumptions regarding not just the rate of flow but also the relative mix of oil, natural gas, and other elements in the flow. See Joel Achenbach and David Fahrenthold, “Oil-spill flow rate estimate surges to 35,000 to 60,000 barrels a day,” The Washington Post, http://www.washingtonpost.com/ wp-dyn/content/article/2010/06/15/AR2010061504267.html (accessed September 4, 2010). 2 In comparison, the 1990 Exxon Valdez accident dumped about 275,000 barrels of oil into waters off Alaska. For a discussion of the environmental impact of the Gulf spill, see http://www.washingtonpost.com/wp-dyn/content/article/2010/07/04/ AR2010070403990_2.html?hpid=topnews&sid=ST2010070404378 (accessed July 6, 2010). 3 Watt’s administrative directive, issued January 19, 1982, consolidated mineral management functions previously exercised by the U.S. Geological Survey, the Bureau of Land Management, and the Bureau of Indian Affairs. 4 For example, BP’s regional response plan, submitted as part of the Deepwater drilling application, lists cold-water marine mammals including walruses, sea otters, sea lions, and seals as “sensitive biological resources.” None of those animals live anywhere near the Gulf. It also asserted that because the drilling rig was located so far off-shore, no oil was likely to reach the Gulf coast in case of an oil spill. See http://news.yahoo. com/s/ap/20100609/ap_on_bi_ge/us_gulf_oil_spill_sketchy_plans and Tim Dickinson, “The Spill, The Scandal and the President,” Rolling Stone, http://www.rollingstone. com/politics/news/17390/111965?RS_show_page=4 (accessed September 4, 2010). 5 To be sure, these inquiries focused less on the environmental aspects of the permitting process and more on the fees the MMS charged oil companies for drilling; the GAO in particular issued a series of reports alleging that the MMS was undercharging oil companies for the right to drill in U.S. waters. See, for example, “Mark Gaffigan, Ongoing Problems with Interior’s Efforts to Ensure a Fair Return for Taxpayers Require Attention,” (Washington, DC: United States Government Accountability Office, 2007), http://www.gao.gov/new.items/d07682t.pdf (accessed September 4, 2010). For an assessment of the MMS from a member of its advisory committee, see Tyler Priest, “The Ties that Bind MMS and Big Oil,” Politico, http://www.politico.com/news/stories/0610/38270_Page2.html (accessed September 4, 2010). 6 See, generally, the June hearings of the House Natural Resources subcommittee, televised on C-Span, available at: http://cspan.org/Watch/Media/2010/06/17/HP/ A/34368/House+Natural+Resources+Subcmte+Hearing+on+Gulf+Coast+Oil+Sp ill+MMS+Operations.aspx (accessed September 4, 2010). 7 Ian Urbina, “Inspector General’s Inquiry Faults Regulators,” The New York Times, http://www.nytimes.com/2010/05/25/us/25mms.html (accessed September 4, 2010). 8 See John M. Broder, “Obama to Open Offshore Areas to Drilling for First Time,” The New York Times, http://www.nytimes.com/2010/03/31/science/earth/31energy.html (accessed June 24, 2010). 9 Obama’s remarks can be found at http://www.whitehouse.gov/the-press-office/ remarks-president-energy-security-andrews-air-force-base-3312010 (accessed September 4, 2010).

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10 See Real Clear Politics, “Flashback: Obama Says ‘Oil Rigs Today Don’t Generally Cause Spills’,” http://www.realclearpolitics.com/video/2010/04/29/flashback_obama_ says_oil_rigs_today_dont_generally_cause_spills.html (accessed July 6, 2010). Obama later defended himself by saying he had been misled regarding the safety of off-shore drilling. 11 See the transcript at http://www.whitehouse.gov/the-press-office/remarks-presidentgulf-oil-spill (accessed September 4, 2010). 12 See Administrative Order 3299, May 19, 2010, http://www.doi.gov/deepwaterhorizon/loader.cfm?csModule=security/getfile&PageID=32475 (accessed June 24, 2010). 13 Critics were quick to point out that the acronym for the newly titled agency was pronounced “bummer.” See Administrative Order 3302, June 18, 2010, http://www. doi.gov/deepwaterhorizon/loader.cfm?csModule=security/getfile&PageID=35872 (accessed June 24, 2010). 14 See, for example, the dispute between federal and state officials regarding whether to construct coastal barriers to block the oil from washing ashore. John Collins Rudolf, “Louisiana and Scientists Spar Over How to Stop Oil,” The New York Times, http:// www.nytimes.com/2010/07/07/science/earth/07rocks.html?_r=1&hp (accessed July 7, 2010). 15 Charlie Savage, “Drilling Ban Blocked; U.S. Will Issue New Order,” The New York Times, http://www.nytimes.com/2010/06/23/us/23drill.html?_r=1 (accessed July 6, 2010). The judge’s decision was upheld by a federal appeals court on July 8; see U.S. Court of Appeals No. 10-30585, http://www.politico.com/static/PPM153_morat. html (accessed July 10, 2010). 16 For a discussion of these incidents, see Donald Kettl, System Under Stress: Homeland Security and American Politics, 2nd ed. (Washington, DC: CQ Press, 2007). 17 Alexander Hamilton, Federalist No. 70. 18 The U.S. Constitution, Article II, Section 3. 19 Hugh Heclo, “One Executive Branch or Many?,” in Both Ends of the Avenue, ed. Anthony King (Washington, DC: American Enterprise Institute, 1983), 26–27. 20 Dan Carpenter, “The Evolution of the National Bureaucracy in the United States,” in The Executive Branch, eds. Joel D. Aberbach and Mark A. Peterson (New York: Oxford University Press, 2006), 66. 21 The president’s “cabinet” has no formal status; instead the term traditionally is used to refer to the heads of the major executive branch departments. However, secretaries of these departments are designated as holding cabinet-level status, which qualifies them for executive level I rank on the government pay scale. Other officials, however, such as the vice president or White House chief of staff, may be given cabinet rank by the president. 22 Carpenter, 51. 23 See Kettl, 54. 24 Note that the Navy Department was split off from War in 1798 before being folded into the newly created Department of Defense in 1947. The Postal Department was created in 1792, and its head, the postmaster general, was invited to sit in the president’s cabinet in 1829, but the department did not achieve cabinet designation until 1872. 25 Some are headed by a single director, while others have a multi-member board or commission. 26 Do they require Senate confirmation? Do they serve fixed terms, or can they be removed at will by the president? 27 Is there a requirement for bipartisan membership, for example? 28 Some government agencies, such as the Tennessee Valley Authority or Federal Reserve Board, must generate a portion of their own operating revenues, acting much like private corporations. 29 Harold Seidman and Robert Gilmour, Politics, Position and Power, 4th ed. (New York: Oxford University Press, 1986), 259–264.

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30 Heclo, “The Executive Establishment,” in The New American Political System, ed. Anthony King (Washington, DC: American Enterprise Institute, 1978), 92. 31 Paul Light, The True Size of Government (Washington, DC: Brookings Institution Press, 1999). 32 See Bureau of Ocean Energy Management, Regulation and Enforcement, “Resource Evaluation Program: G&G Data Acquisition and Analysis,” http://www.mms.gov/ revaldiv/GGAcquisitionAndAnalysis.htm (accessed September 4, 2010). 33 Bureau of Ocean Energy Management, Regulation and Enforcement, “Resource Evaluation Program: Fair Market Value Determination,” http://www.mms.gov/revaldiv/ FairMarketValue.htm (accessed September 4, 2010). 34 According to testimony before a House subcommittee, the MMS had only 60 inspectors to oversee nearly 4,000 drilling facilities in the Gulf of Mexico, while on the Pacific Coast 10 inspectors cover only 23 facilities. Jackie Calmes and Helene Cooper, “BP Chief to Express Contrition in Remarks to Panel,” The New York Times, http://www. nytimes.com/2010/06/17/us/politics/17obama.html (accessed July 6, 2010). 35 See, for example, Grant McConnell, Private Power and American Democracy (New York: Alfred Knopf, 1966) and Douglas Cater, Power in Washington (New York: Vintage, 1954). And Progressive historians leveled similar charges in their studies of the first attempts by government to regulate industry during the Progressive era at the start of the 20th century. See, for example, Gabriel Kolko’s The Triumph of Conservatism: A Reinterpretation of American History, 1900–1916 (New York: The Free Press of Glencoe, 1963). 36 Heclo, “The Executive Establishment,” 88. 37 Ryan Tracy, “The Mire Next Time,” Newsweek, http://www.newsweek. com/2010/07/01/the-mire-next-time.html (accessed July 8, 2010). 38 See Rudolf. 39 See Morris Fiorina, Disconnect: The Breakdown of Representation in American Politics (Norman: University of Oklahoma Press, 2009). 40 Nelson Polsby provides a detailed description of this process, including how the introduction of air conditioning influenced residential migration patterns. See his How Congress Evolves: Social Bases of Institutional Change (New York: Oxford University Press, 2004). 41 See Matthew J. Dickinson “The President and Congress” in The Presidency and the Political System, 9th ed., ed. Michael Nelson (Washington, DC: CQ Press, 2010), 401–434. 42 Frances Lee, Beyond Ideology: Politics, Principles and Partisanship in the U.S. Senate (Chicago: University of Chicago Press, 2009). 43 Carpenter, 49–50. 44 Examples of important agencies created by administrative directive include the National Security Agency and the Peace Corps. 45 Peak periods of legislative creation of bureaucracies occurred in the immediate aftermath of the war during Harry S. Truman’s administration, and again during Johnson’s and—perhaps surprisingly—Nixon’s presidencies. See David E. Lewis, Presidents and the Politics of Agency Design (Palo Alto, CA: Stanford University Press, 2003), 42–44. 46 The U.S. Constitution, Article II, Section 2. 47 James Q. Wilson, “The Rise of the Bureaucratic State,” The Public Interest no. 41, (Fall 1975), 77–79. 48 Carpenter, 51. 49 Wilson, 87–88. 50 Initially these departments were headed by commissioners, not secretaries. Agriculture did not become a cabinet-level department until 1889, and Labor achieved this status only after expanding with the addition of Commerce in 1903. See Seidman and Gilmour, 252. 51 The CSC was replaced by the Office of Personnel Management in 1978. See endnote 67. 52 For example, Congress has granted both the DoD and the DHS the authority to create their own personnel systems. See David E. Lewis, The Politics of Presidential Appointments:

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Political Control and Bureaucratic Performance (Princeton, NJ: Princeton University Press, 2008), 18–20. Seidman and Gilmour, 249–251. As Seidman points out, however, the ICC was initially established under the secretary of the Interior’s nominal control, and did not become a truly independent agency until 1889. See Seidman and Gilmour, 251. Wilson, 96–97. Due to space constraints I do not describe other types of executive branch entities, such as government corporations and foundations. Corporations gained prominence as early as World War I, although they did not achieve full legitimacy until the New Deal era. Examples include the Tennessee Valley Authority and the Federal Deposit Insurance Corporation. Typically, corporations are chartered under state law but supervised by a federal board of directors or, in some cases, a cabinet secretary. They usually are responsible for generating their own operating revenue. These corporations are, by design, meant to be almost entirely immune to political control and instead function much like private entities. Seidman and Gilmour provide a useful overview of corporations and of government “foundations” such as the National Science Foundation, in their work, 254–255. Carpenter, 65. Those characteristics include: being created outside a cabinet department, being led by a multi-member board, having directors with fixed terms of appointment, or stipulating a specific set of qualifications for agency administrators. Lewis, Presidency and the Politics of Agency Design, 88–95. Matthew J. Dickinson, Bitter Harvest: FDR, Presidential Power and the Growth of the Presidential Branch (New York: Cambridge University Press, 1996), 82, footnote 136. The best survey of these managerial studies is Peri Arnold’s Making the Managerial Presidency: Comprehensive Reorganization Planning, 1905–96, 2nd ed. (Lawrence: University Press of Kansas, 1998). FDR’s predecessor, Herbert Hoover, had been granted permanent reorganization authority by Congress through the 1932 Economy Act, but Congress rescinded that grant nine months later. Thereafter presidents were given reorganization authority of limited duration, subject to a legislative veto. Dickinson, Bitter Harvest, 86–113. See Immigration and Naturalization Service v. Chadha (1983). For an argument for resurrecting the president’s reorganization authority, see Paul Light’s 2005 testimony before a subcommittee of the House’s Governmental Reform Committee, “Restoring the President’s Reorganization Authority,” http://wagner.nyu.edu/performance/files/ RESTORING%20THE%20PRESIDENT%27S%20REORGANIZATION%20AU THORITY.pdf (accessed September 4, 2010). I describe this process in some detail in my essay, “The Executive Office of the President: The Paradox of Politicization,” in eds., Joel D. Aberbach and Mark Peterson, The Executive Branch (New York: Oxford University Press, 2005), 135–173. Light, Thickening Government: Federal Hierarchy and the Diffusion of Accountability (Washington, DC: Brookings Institution Press, 1995), 12. The SES was created by Jimmy Carter in 1978, when he revamped the civil service system to make it more amenable to presidential influence. It consists of some 7,000 senior bureaucrats, of which about 10 percent are political appointees, with the rest drawn from career civil servants. The Office of Personnel Management allocates a fixed number of SES positions to each department, and presidents (or their appointees) decide whether to fill these with political appointees or careerists. By law, political appointees cannot exceed 10 percent of the entire SES nor 25 percent of the SES positions within a department. See Lewis, The Politics of Presidential Appointments, 21–24. Because departments and agencies differ in size, of course, one cannot measure the depth of politicization by raw numbers alone.

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69 Schedule C positions were initially created by Dwight Eisenhower in 1953, and at one point included upper management positions as well. Most of these were converted into SES positions in 1978. 70 In making this claim, Lewis distinguishes between political “policy” appointments and purely “patronage” appointments. The latter, he argues, will increase in agencies that share a president’s policy views. 71 See Dickinson, “The Executive Office of the President.” 72 Lewis, The Politics of Presidential Appointments, 141–171. Lewis backs up the findings from this case study with more systematic evidence based on an analysis of the performances of multiple executive branch agencies during George W. Bush’s presidency. 73 Heclo, A Government of Strangers (Washington, DC: Brookings Institution Press, 1977), 1.

10 The Presidency and Domestic Policy David Shafie

Until recently, the institution of the presidency was merely a partner in domestic policymaking. Given their limited policy role by the Constitution, presidents could be effective policy leaders by marshalling the resources of the office and enticing other actors to support various initiatives within a system of separated power. By the late 20th century, the president’s policymaking role had expanded to the point where “chief policymaker” became one of the responsibilities of the job. The expansion of the policy role of the office has coincided with two parallel, if incongruous trends: a growth in the institutional domestic policy capacity of the presidency and a tendency of recent presidents to limit the scope of the domestic agenda. Pursuing an ambitious domestic agenda can be risky. However, modern presidents face significant expectations to deliver on their promises, and they have more resources to devote to domestic policy leadership than ever before. This chapter considers the factors that have created the modern domestic presidency. It discusses the resources that have allowed the president to become chief policymaker, as well as the constraints that limit the president’s ability to meet expectations. One result is that recent presidents have increased their reliance on unilateral action for certain agenda items, conserving their “power to persuade” for their highest domestic policy priorities.

The Two Presidencies Aaron Wildavsky proposed a now-familiar, if not widely accepted, notion that the challenges of presidential leadership on domestic policy are distinct from those of the more glamorous terrain of foreign policy leadership.1 Foreign and domestic policies feature different dynamics between the branches of government, since the presidency has more resources at its disposal to deal with defense and foreign relations, and Congress is more likely to delegate authority over those matters.2 President George H.W. Bush became an illustration of this idea when Time depicted him as a two-faced Janus on its “Men of the Year” issue cover in 1991.3 One face, representing Bush’s foreign policy presidency appeared upbeat, engaging, and triumphant. The other face was dour and marred with disappointment. That face signified his domestic policy presidency, which the cover story found to be lacking in terms of initiative and accomplishments.

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That presidents in the postwar era would gravitate toward foreign policy priorities is not surprising, considering the difficulties of domestic policy leadership. As Wildavsky noted, presidents are capable of domestic policy achievements when facing an extraordinary crisis, such as the Great Depression, or when they command large congressional majorities, as President Lyndon Johnson enjoyed in the 1960s. In normal times, there are a number of pitfalls to discourage presidents from risking their presidencies on a domestic agenda. They are required to work with Congress to enact domestic programs, and legislators may be reluctant to go along when the president’s proposals are costly. They must mollify interest group opposition and secure buy-in from bureaucrats as well as state and local authorities needed for successful implementation. Furthermore, newly elected presidents are hamstrung by intractable budgets enacted by their predecessors.4 Despite the political risks, presidents have chosen to prioritize domestic policy issues in response to social and economic realities. Successful candidates for the presidency are expected to deliver on their domestic policy promises, and presidents are held accountable for conditions within the nation. Since the 1960s, presidents have come to assume the role of chief domestic policymaker, and Congress and the public have come to accept this arrangement.

The President’s Policy Role The evolution of the presidential role in policymaking took place over the course of the 20th century. This was more of a response to a changing environment than a conscious power grab. Prior to the New Deal, presidents played an active role in policymaking, but they were most influential when working closely with congressional leaders on their agendas. This tactic allowed Presidents Theodore Roosevelt and Woodrow Wilson, respectively, to achieve progressive domestic policy goals, including labor, antitrust, and food safety laws, as well as the creation of the Federal Reserve in 1913, which gave the president a significant role over monetary policy. The New Deal forever changed expectations for the federal government’s role in social and economic life, as well as the president’s role in policymaking. The dire condition of the nation following the Great Depression led President Franklin D. Roosevelt (FDR) to expand presidential authority over economic policy, first by stabilizing the financial system. New regulations were imposed on the banking system. FDR persuaded Congress to pass the Glass-Steagal Act, which insured bank deposits and protected the depositors by banning banks from speculating with their savings. Federal mortgage insurance stemmed the tide of foreclosures. The Securities and Exchange Commission was created to regulate the stock markets, and the federal government began to regulate major industries, such as broadcasting, in order to ensure competition and long-term growth. Various relief programs comprised the other, more visible part of the New Deal. The newly created Public Works Administration (PWA) was central to this goal. The PWA planned and awarded contracts to build infrastructure and housing projects, putting thousands of unemployed Americans back to work in the

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process. The Civilian Conservation Corps (CCC) funded park construction, reforestation, and soil conservation work projects for young people, and the Tennessee Valley Authority (TVA) brought employment and rural electrification to the Southeast. The Works Progress Administration (WPA) is best remembered for the enduring bridges, dams, and parks that were constructed across the country during the Great Depression. The WPA was controversial and short lived because it also employed actors, writers, and other artists, exceeding the boundaries of the types of activities that many Americans saw as appropriate for government action. Even though so much was accomplished at the beginning of his first term, FDR actually delayed action on social welfare policy. Prioritizing economic and relief programs helped ensure they would receive congressional approval and funding before moving forward with his proposals for old-age and unemployment insurance programs.5 The Social Security Act of 1935 provided for pensions for the elderly and people with disabilities. The act also created Aid to Dependent Children, later renamed Aid to Families with Dependent Children (AFDC). For six decades, AFDC provided benefits for unmarried women who had children to raise, until the policy was replaced by a system of block grants in 1996. The group that planned and developed FDR’s policy proposals was small in comparison to the elaborate policy institution in the modern White House. In the case of Social Security, a group of cabinet officials, the Committee on Economic Security, was convened to advise the president on policy. Business, labor, and other interest groups were able to participate through their representatives on the Advisory Council on Economic Security. The actual legislation was drafted by the Technical Board on Economic Security, which comprised experts within government.6 The Roosevelt model established a firm precedent. By the 1950s, there was an expectation that presidents would have a policy agenda ready for Congress, and that they would work for the enactment of their priorities.7 The expansion of presidential influence over domestic policy occurred in fits and starts. Even though social welfare programs were included in the New Deal, it would be several years before the federal government trained its eye on a significant expansion in this area. Social welfare, as well as civil rights, became priorities for the John F. Kennedy and Lyndon B. Johnson (LBJ) administrations during the 1960s. Johnson’s decisive victory over Senator Barry Goldwater in the 1964 presidential contest and the huge Democratic majorities in Congress he enjoyed altered the political terrain and presented a mandate for the Great Society. The Johnson years represent the peak of presidential domestic activism over domestic policy. After the assassination of President Kennedy, LBJ took the initiative to move forward with civil rights and antipoverty policies that had been under development by the White House policy staff. The early Great Society programs included federal aid for primary and secondary education, job training for the disabled, the expansion of urban renewal, and public housing. Medicare was created for the elderly and Medicaid for welfare recipients. The most ambitious of LBJ’s policies were the War on Poverty and Model Cities, which were based on the assumption that people were poor because of structural, not personal, reasons. By framing poverty as a public problem, LBJ asserted that it

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could be addressed through public policy, and therefore government had an obligation to provide a remedy. This philosophy was summed up during a May 1964 speech in Athens, Ohio: “Our challenge, not tomorrow but today, is to accomplish objectives which have eluded mankind since the beginning of time. We must bring equal justice to all our citizens. We must abolish human poverty. We must eradicate killing and crippling disease . . . . We must eliminate illiteracy among all of our people. We must end open bias and active bigotry.”8 From 1964 to 1966, 219 new grant programs were created by Congress. Among these were enduring programs, such as the Federal School Lunch Program, VISTA, Legal Services, and Upward Bound. Even though some of his programs did not last, the government services and aid programs of the mid-1960s were created because LBJ had set the agenda, defined the terms of debate, and steered the enabling legislation for his programs through Congress. Presidential leadership fueled the implementation of these programs because many of them were organized by White House organs, such as the Office of Economic Opportunity, and administered by presidential appointees. Even Johnson’s successor, Richard Nixon, sought political victories through addressing domestic problems, floating proposals for health care reform and a negative income tax. More significant, Nixon cultivated political support for his re-election by creating the Environmental Protection Agency, taking credit for such major environmental laws as the Clean Air Act, and placing his own “New Federalist” touches on federal aid in the form of block grants and revenue sharing.

The Institutional Domestic Presidency Modern presidents enjoy a level of control over domestic policymaking that exceeds the influence of their predecessors. This is largely because of the institutional apparatus that exists today. According to John Burke, a White House unit is considered institutionalized if it is 1) organizationally complex, 2) universalistic and follows routine decision-making and operating procedures and 3) differentiated from the larger environment in which it operates.9 It was not until the 1970s that the White House would establish an organization committed to domestic policy that would persist and maintain its organizational procedures through subsequent changes of administration. Prior to the Budget and Accounting Act of 1921, presidents could work with department heads on their budgets and priorities, but had limited influence over the ultimate policy direction of these departments. Presidents were prescribed a role in the budgeting process but lacked the resources to contribute effectively. This act of Congress created the Bureau of the Budget (BOB), lengthening the president’s reach over agency agendas because it required them to submit budget proposals to the White House for review. The 1921 law was a significant development because it began the evolution of the “institutional domestic presidency,” a process that occurred in four stages.10 First, the budget review process was refined when FDR designated top advisors to make programmatic decisions about the administration’s domestic agenda and

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determine whether agency agendas were consistent with the president’s priorities. This allowed FDR to further centralize domestic policymaking, although turf battles with the BOB prevented him from creating a separate policy unit within the office of the White House. The second stage of this evolution occurred when the Kennedy and Johnson administrations used a series of advisory boards and commissions to further centralize domestic policy. Third, Nixon moved toward a permanent domestic policy presence in the White House by creating the cabinet-level Domestic Policy Council (DPC) and the Office of Assistant to the President for Domestic Policy. Finally, President Ronald Reagan moved to centralize domestic policy by using the Office of Management and Budget (OMB) and the Office of Policy Development (OPD) to manage agency initiatives. The OMB has been a central actor in domestic policy ever since Reagan took office in 1981. The successor organization to the BOB, the OMB was created in a Nixon administration reorganization. The Reagan OMB was given the responsibility for guiding federal agency initiatives and ensuring that they were consistent with administration goals. The DPC is now the principal organization in the Barack Obama administration that coordinates domestic policy across federal agencies and communicates the administration’s priorities to Congress. The successor organization to the OPD, the DPC was created in the Bill Clinton administration reorganization in 1993 that split its domestic and economic policy responsibilities, which were assigned to the National Economic Council (NEC).11 As with the OMB, the Reagan OPD assumed greater coordination responsibilities, even though domestic policy was less of a priority during the Reagan years. Through strict review of agency actions, these offices were used to promote the administration’s agenda of deregulation.

Ruler of the Policy Agenda As the institutional resources of the presidency have expanded, so has the president’s capacity to provide domestic policy leadership. Presidents have the potential to dominate every stage of the policy process. At the agenda-setting stage, no other institution can compete with the attention that the presidency commands. The development of the mass media has made the presidency the center of attention in the national government, and presidents use the office to propose a legislative agenda. They can start a policy debate just by speaking publicly about an issue. This can occur at any point during a president’s term, although the State of the Union address is a regular forum to announce policy proposals. This varies by party, as Democrats are more likely to use the campaign to place domestic issues on the policy agenda.12 Newly elected presidents assume office with defined domestic agendas, since they will have spoken on record about their domestic priorities during the course of the campaign. Since Presidents Obama and Clinton entered office after campaigning to reform health care, they were expected to move quickly in the first year, spending time and energy in their efforts to deliver on their promises. The same is true for George W. Bush, who found success co-opting a pair of traditional

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Democratic issues, health care and education, during the 2000 campaign. Due to the emphasis on K–12 education reform during his first campaign for the White House, the No Child Left Behind Law became the top domestic policy priority of Bush’s first year. Also, while on the campaign stump, Bush criticized Vice President Al Gore and the Clinton administration’s failure to reform Medicare and rein in the cost of prescription drugs. In contrast to Clinton’s goal of expanding access to health care for the uninsured, the Medicare drug benefit was primarily an issue of concern to one politically powerful demographic group: senior citizens. Therefore, a prescription drug benefit became the key domestic priority for Bush in 2003 as he prepared to face the voters again the following year. Within certain limits, the national constituency gives presidents broad latitude to choose issues for the agenda. They also can claim the moral authority to make proposals on behalf of the “national” interest, as opposed to the “special” interests championed by members of Congress. However, presidents face some constraints. The need to sustain majority electoral coalitions means that presidents tend to avoid priorities that might alienate the median voter. Even for conservative presidents who talk of cutting domestic programs, a repeal of Social Security or Medicare is always off the table. This dynamic also rewards presidents of both parties for pursuing centrist policies. The Bush policies on education reform and prescription drugs were examples of centrist alternatives to problems traditionally associated with the opposition party’s strengths, as were Clinton’s devolution of welfare to the states and his proposal on affirmative action (“Mend it, don’t end it”). Another factor that constrains the president is the limited agenda space for domestic policy. Initially, the president’s program includes a limited number of domestic agenda items. These are developed inside the White House policy establishment, or institutional sources.13 As the term unfolds, new agenda items are more likely to emerge from external (informal) sources. A president’s domestic agenda can become overwhelmed by new priorities, and presidents are more likely to react to issues that emerge from external sources.14 Consequently, presidents are under pressure to narrow their priorities, which affords limited agenda space for domestic policy items. Since external circumstances dictate many of the president’s priorities, much of the agenda inevitably becomes crowded with foreign and economic policy issues beyond the president’s control. This leaves little time for discretionary issues, and domestic issues must compete for what agenda space remains. In the first term of George W. Bush, domestic policy was largely abandoned after the terrorist attacks of 2001. While Congress acted upon Bush’s top domestic agenda priorities of education reform, tax cuts, and expansion of faith-based programs, he announced that national security policy would become the sole focus of his administration after the attacks.15 Normally, the public and the election cycle determine which emerging problems receive the president’s attention. Other institutional sources, including the congressional agenda, have little influence by comparison. Public opinion is the best indicator of which emerging issues are most likely to secure places on the president’s agenda, particularly in election years.16 A public discussion started from

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the pulpit of the presidency is certain to move up the agenda. However, there is no guarantee the discussion will advance beyond that stage and lead to a policy change, as George W. Bush learned when he failed to persuade a Congress dominated by his own party to move on his domestic priorities of reforming Social Security and immigration policy at the start of his second term. Those issues had been priorities for many in Congress and the public, but the president’s proposals were derailed by the lack of agreement about direction and interest group opposition.

Moving the Domestic Agenda Presidents face extraordinary pressure to accomplish most of their top priorities during their first hundred days, or risk having them bogged down. Complicating matters, the window of opportunity exists before the administration is fully up and running. Therefore, the best hope to deliver on promises made during the campaign rests on swift action. There are certain actions presidents must pursue promptly in order to “hit the ground running.” These include staffing the administration, taking control of the bureaucracy and the budget, and sending the policy agenda to Congress.17 The staffing decisions made during a White House transition can determine how quickly the new administration will begin forging the president’s priorities into a policy agenda, as well as the long-term prospects for the agenda’s success. Filling top posts in the chief of staff’s office and the various policy, support, and political offices is a priority if Congress is to receive proposals based on the president’s agenda promptly. The George W. Bush White House had dedicated policy advisors for each of his domestic policy priorities.18 Margaret Spellings managed the education reform effort, and John Dilulio led the Office of Faith-Based Initiatives before leaving at the end of 2001. The tax cut legislation was managed by the NEC, led by Lawrence Lindsey, as well as the Office of Legislative Affairs. Staffing these posts early with the right personnel was crucial to the enactment of Bush’s domestic policy priorities.19 Asserting control of the bureaucracy is a second hurdle. Influencing the direction of federal agencies would seem impossible, considering that the vast majority of the 14 million employees of the federal bureaucracy are civil service workers. Only about 500 agency officials are nominated by the president and subject to confirmation by the Senate. Some presidents who have experienced problems with these top appointments became distracted by unforeseen controversies. Candidates for these positions are subject to arduous background checks and interviews. These, and the potential for protracted hearings and delays, are blamed for deterring many qualified people from accepting positions in the bureaucracy. Those top bureaucrats have significant power to integrate the president’s priorities into their agency plans, as well as leverage to undermine them. In addition, the president depends upon agencies to coordinate with one another, since fragmentation is a feature of many domestic policy areas. That is, responsibility is shared among several different agencies and departments. The experience of recent presidencies has shown that the bureaucracy can be enlisted to affect policy

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change if the leadership is established early and accommodates the career civil service, whereas ambitious reorganization attempts can delay the implementation of the president’s policy agenda. Moreover, presidents who run against Washington bureaucracy as a campaign theme can find institutional support for their policy initiatives undermined if their rhetoric is too adversarial.20 In taking control of the budget, the most serious impediment is the calendar. A new president must contend with a lame-duck budget developed by the outgoing administration. Inauguration Day is early in the fiscal year, and the OMB will already have been collaborating with Congress on the budget that takes effect in October. The incoming administration has only two months to send its proposed changes to Congress. The OMB director is usually one of the first appointments named in a presidential transition because asserting control over this office is the best way to take control of budget negotiations before Congress begins debate. Otherwise, there are few opportunities to affect the spending priorities for the first 20 months of the presidency. Developing the policy agenda and moving it through Congress requires a mix of skill, strategy, and other factors that are beyond the president’s control. It is commonly understood that new presidents enjoy a honeymoon of approximately 100 days, in which they enjoy high popularity ratings and good relations with Congress, before an inevitable decline occurs in both numbers. However, post-inaugural popularity does not automatically grant leverage with Congress, as Bill Clinton discovered in 1993. Moreover, early legislative victories do not guarantee future successes. Rather, presidents can only expect to encounter a “cycle of decreasing influence,” in which their popularity declines over the first several months, leading to probable losses in the following midterm elections.21 President Obama was likely sensitive to this when he chose to move ahead with health care reform. He was determined that Congress should consider a bill during his first year, despite pleas from his senior advisors to delay such a bold domestic policy proposal.22

Prerogative Powers Even when presidents lack effective control over the agenda and congressional majorities, they have the means to adopt policies unilaterally through administrative tools such as rulemaking, executive orders, proclamations, directives, and signing statements.23 Since the 1970s, presidents have increased their reliance on prerogative powers to pursue policy goals, and these unilateral actions have become important instruments to advance agenda items that become stalled in Congress. Not only is this strategy a low-risk alternative to a bruising battle in the legislative arena, the threat of unilateral action can pressure Congress to act on the president’s priorities. This was the hope when the U.S. Environmental Protection Agency moved to develop rules for carbon dioxide emissions at the same time President Obama’s cap-and-trade bill stalled in the Senate. Illustrating the point, at the 2009 UN Climate Change Summit in Copenhagen, Senator John Kerry (Democrat from Massachusetts) tried to assure the conferees, “If we don’t legislate, they [the EPA] will regulate.”24

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Every recent president has made significant use of unilateral actions to advance domestic agenda items.25 Executive orders, which guide and restrict government agencies, are the most direct method available for a president to circumvent Congress. This can be the preferred strategy for a president facing a Congress of the opposite party. For example, President Clinton issued more than 450 executive orders during his two terms, starting with his rescission of the Reagan-Bush-era “gag rule” on abortion counseling at military hospitals (although this policy is reversed every time the executive branch changes party control). At the end of his second term, Clinton issued an executive order allowing states to pay unemployment benefits to parents who take time off work after childbirth. This “midnight” action was an example of a now-common feature of the modern presidency: the tendency of outgoing presidents to defer some agenda items and advance them in a flurry of unilateral policymaking after losing re-election or at the end of their second term.26 Divided government is one factor that explains the use of unilateral policy instruments. When Republican presidents have faced a Democratic Congress, those presidents have been more likely to use executive orders and other administrative tools to advance their domestic priorities.27 Democrat Bill Clinton did the same thing when he did an “end run” around a Republican Congress to preserve natural resources, setting aside land for the Escalante Canyon National Monument in Utah and promulgating a rule to ban road construction in roadless areas of national forests. More executive orders are issued to affect domestic policy than foreign policy, although their use as an instrument of domestic policy varies by party. Since World War II, Democratic presidents have been more likely to use executive orders for domestic policy, while Republican presidents have been more inclined to use them for foreign policy.28 As chief policymaker, the president not only enjoys the power to set the agenda and enact some policies unilaterally, but also exercises disproportionate influence over policy implementation. Recent presidents have expanded the institution’s influence through its leadership of the executive bureaucracy, which has a central role in domestic policy. While not mentioned in the Constitution, federal agencies often have the most input into domestic policy because of rulemaking. Due to their resources and expertise, agencies are valued for their input when Congress and the president formulate policies. Moreover, agencies sometimes have the final word when they translate statutory law into administrative rules, using the discretion delegated by Congress in the Administrative Procedure Act. Considerable presidential influence over the direction of policy is exercised during the implementation stage because the president appoints top administrators of federal agencies. Those leaders probably would not have been selected unless they shared the president’s views about the direction of the policies they will be expected to carry out.

Obama’s Domestic Policy Leadership: An Early Evaluation From the time of his election victory, analogies have been made comparing Barack Obama’s domestic policy challenges to FDR’s.29 This comparison overstates the

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magnitude of the crisis, since unemployment in 2009 never approached Great Depression levels, when there was no social safety net. In another way this comparison is unfair to Obama, because FDR did not inherit two wars from his predecessor. On top of a full plate of foreign policy challenges, Obama’s agenda consisted of responding to the financial crisis, economic stimulus legislation, energy policy, health care reform, and immigration. Anticipating the toll that the unfolding crisis could take upon his presidency, Obama took the unorthodox approach of acting on all of his top priorities simultaneously. In order to ensure prompt action on his domestic agenda, Obama moved quickly to staff his administration, assert control over the bureaucracy and the budget, and prepare a legislative agenda for Congress. Immediately following his election, Obama took action to name his White House staff and define their policy roles. The 40 most senior White House positions were filled faster during Obama’s transition than any previous one, and certain top aides (or “czars”) were given the responsibility for coordinating policy proposals in specific areas, such as climate change, health care, and cybersecurity. Obama gave the Office of Legislative Affairs a prominent role in his administration, much as his predecessor had done, filling it with former staffers who previously had worked for prominent members of Congress.30 In naming his chief of staff, Rahm Emanuel, as well as other key positions, Obama repeatedly emphasized the urgency of the crisis. Emanuel set the tone that defined the administration’s approach when he told a meeting of business leaders in Chicago, “You never want a serious crisis to go to waste.”31 The implication was that the historic opportunity to enact progressive domestic policy goals would depend on his administration’s handling of the crisis. Obama also named his top agency and department heads in record time, although unforeseen controversies led to the withdrawal of certain nominees, most notably two who had been tapped for cabinet posts: former Senate Majority Leader Tom Daschle (health and human services) and New Mexico Governor Bill Richardson (commerce). Other low-level nominations became bogged down in the vetting and confirmation process; midway through 2009, only half of the nominees for 500 appointed positions had been named.32 In addition to his choice of appointees, Obama employed some other key strategies to establish control of the bureaucracy.33 First, transition teams were assigned to complete performance assessments of every agency and department. He tried to entice talented “new blood” to come to work in the federal government through his support of the Edward M. Kennedy Serve America Act, which provided education benefits and incentives for older Americans to change careers and work in the public sector. In addition, the act promoted volunteerism and expanded AmeriCorps. Finally, Obama adopted a decision-making process that centralized authority in the Oval Office. Using Rahm Emanuel as a gatekeeper, Obama would hear opinions from senior staff on major issues while being shielded from administrative minutiae.34 Continuity with the Bush administration economic recovery efforts was a key consideration in Obama’s appointment decisions. As the crisis mounted in 2008,

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Bush’s White House team broke with its previous faith in the free market and deregulation, spending money on economic stimulus and taking bold steps to rescue failing financial institutions. The Federal Reserve and the Treasury Department turned into activists, jointly bailing out Fannie Mae and Freddie Mac, and Treasury Secretary Henry Paulson engineered large-scale bank mergers. The Bush administration’s $700 billion rescue package created the Troubled Assets Relief Program (TARP), which was used to buy up bad mortgages and restore liquidity to the lending market. As president-elect, Obama weighed in with the Bush team as it formulated additional responses. Appointing Tim Geithner, a member of the New York Federal Reserve Board of Governors, as treasury secretary sent a message that Obama’s economic policies were unlikely to be a radical break from the past. In many ways, Obama’s early actions on the issue of the economy resembled the Bush administration’s response to the meltdown. His administration reluctantly stepped in to rescue General Motors and Chrysler, although with more restrictions than his predecessor had imposed in the financial bailout. The administration’s reluctance to break with Bush policies forged during the financial crisis became an early source of anger and frustration to some Obama supporters. On many of the more ambitious proposals regarding the economy, Obama demurred to the cautious OMB, which stressed deficit reduction over new spending. In a highprofile debate over using leftover TARP funds to bail out small businesses, the OMB served as a wet blanket, determining that the return on the government’s investment would be too low.35 As Jonathan Alter observed, “Over time, many in the OMB, NEC, and other parts of the White House often proved better at killing ideas for putting people back to work than at creating them.”36 Even though it failed to attract bipartisan support, the $787 billion stimulus bill had some resemblance to the Bush administration’s approach, since one third of the package consisted of tax rebates. Labeled tax “cuts” by many Democrats, these were actually payments of $400 to individuals with incomes of $75,000 or less ($800 for married couples with incomes of $150,000).37 The other two thirds of the package consisted of various spending items, including tax credits for child care, money for Pell grants, information technology for health care, unemployment insurance, state Medicaid programs, transportation projects, and grants and subsidies for renewable energy. Amid the economic crisis and two wars, Obama faced a tough decision about the rest of his domestic agenda. Climate change and immigration reform had been prominent themes in his campaign, but health care was the most daunting. During the campaign, Obama had promised only to reform health care by the end of his first term, but he decided to move ahead immediately. He calculated that his popularity would drop 10 to 15 percentage points during the debate over legislation. He was quoted as telling House Speaker Nancy Pelosi that unless they acted quickly, it would not get done at all.38 As Jonathan Alter writes: “So Obama decided to bet his domestic presidency on health care. It wasn’t that he would face certain defeat in 2012 without it; unemployment and Afghanistan were much bigger issues for the voters. But for greatness he needed health care, and he needed it soon. He

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concluded in November 2009 that trying to get Congress to sign on in the second, third, or fourth years was ‘just impossible to imagine.’” Rather than develop his own health care bill within the White House policy establishment, as Bill Clinton had done in 1993–94, Obama allowed Congress to take the lead. He declared that the program had to be revenue neutral, but left the details to the various congressional committees. By taking this approach, Obama avoided many pitfalls that derailed the Clinton plan. Interest group opposition was reduced because Congress is a more porous institution that permits broader participation than a White House task force. However, the public did not respond well to the spectacle of legislative “sausage making,” including special deals made to lock up votes in the Senate and the reconciliation maneuver used in the bill’s final passage. From the sidelines, it was difficult for the White House to manage information and it lost control of the debate during the second half of 2009. Liberals were angered by his willingness to give up on one of its key provisions, the public option.39 The strategy also prevented Obama from getting involved earlier. He was forced to wait for a final bill, and then declare his support for it. Likewise, Obama allowed Congress to take the lead on his other domestic priorities, climate change and immigration. The slow progress on these issues has been blamed, in part, on his reluctance to become personally involved. As a solution to climate change, Obama threw his support behind the cap-and-trade program that would set a ceiling on carbon dioxide emissions and create a market for emissions credits. Historically, this market-based approach to pollution control has been popular with Democrats and Republicans alike, but Republican opposition to cap-and-trade hardened when it became part of the Obama agenda. After the House of Representatives passed an energy bill with a cap-and-trade provision in 2009, the proposal languished in the Senate. Even in the wake of the nation’s worst environmental disaster, the oil spill in the Gulf of Mexico that began in April 2010, Obama puzzled many supporters by his hesitation to appeal for action on the stalled legislation. Comprehensive immigration reform had eluded George W. Bush, who had identified the problem as a priority for his second term. The closest that Congress ever came was 2007’s Kennedy-McCain bill, which would have increased funding for border enforcement and a 700-mile fence, granted legal status to undocumented immigrants and a “path to citizenship,” and created a guest worker program and a “point” system to favor immigrants with valuable skills. Despite exhaustive negotiations, opponents of the bill loaded it up with enough “poison pill” amendments that the bill was never enacted. Supporters hoped that Congress would reconsider the bill after Obama’s election, but immigration reform proved to be just as much of a hot button issue in 2009 and 2010.

Conclusion The presidency has developed a sophisticated and stable institutional structure to better accommodate the president’s expanding domestic policy role. Accordingly, there is pressure to deliver on campaign promises, and the White House must deal

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with elevated expectations in the face of deficits and national debt. Therefore, presidents face pressure to restrict the domestic agenda to maximize the chance of securing a few policy victories. The paradox is that the scope of the average domestic agenda has decreased even as the institutional capacity of the presidency has increased.40 In another paradox, the growth of the institution has opened presidential policymaking to broader interest group participation, longer deliberation and a tendency toward incrementalism, leading to a diminution of its power to deliver on its policy priorities. While the presidency still dominates the domestic policy agenda and wields the power to enact policy unilaterally, the executive branch has lost some of the comparative advantage it enjoyed relative to the congressional agenda.41 Even as “policy leader” has become one of the accepted roles of the presidency, interest group pressure and scarce financial resources have diminished the president’s ability to deliver on his policy priorities. These are not new conditions. Paul Light’s concept of the “No Win” presidency attributed the difficulties of policy leadership to a handful of trends that were well under way in the 1970s.42 The reluctance of most recent presidents to risk their limited time, resources, and political capital on lengthy and ambitious domestic agendas is no surprise, considering the difficulties they face. This helps explain their preference for unilateral policy tools, which sometimes enable presidents to continue to deliver on their campaign promises even without control of the agenda or a supportive Congress. Moreover, it explains the relative distaste for domestic policy compared to issues of foreign policy, considering that it presents the opportunities for significant accomplishments with minimal congressional involvement.

Notes 1 See Aaron Wildavsky, “The Two Presidencies,” in The Two Presidencies: A Quarter-Century Assessment, ed. Steven A. Shull (Chicago: Nelson-Hall, 1991). 2 See Shull, Policy by Other Means (College Station: Texas A&M University Press, 2006). 3 “Men of the Year,” Time, January 7, 1991. 4 See Thomas E. Cronin and Michael A. Genovese, The Paradoxes of the American Presidency (New York: Oxford University Press, 1998). 5 See Theda Skocpol, Social Policy in the United States (Princeton, NJ: Princeton University Press, 1995). 6 Ibid. 7 See George C. Edwards III and Stephen J. Wayne, Presidential Leadership, 5th ed. (New York: St. Martins, 1999). 8 Remarks of President Lyndon B. Johnson in Athens, Ohio, May 7, 1964. See John T. Woolley and Gerhard Peters, The American Presidency Project (online). Santa Barbara, CA, http://www.presidency.ucsb.edu/ws/?pid=26225. 9 See John P. Burke, The Institutional Presidency (Baltimore: The Johns Hopkins University Press, 1992). 10 See Shirley Anne Warshaw, The Domestic Presidency (Boston: Allyn & Bacon, 1997). 11 See James P. Pfiffner, The Modern Presidency, 4th ed. (Belmont, CA: Thompson Wadsworth, 2005). 12 See Paul C. Light, The President’s Agenda: Domestic Policy Choice From Kennedy to Reagan, 3rd ed. (Baltimore: The Johns Hopkins University Press, 1998). 13 Ibid.

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14 Ibid. 15 See Warshaw, The Co-presidency of Bush and Cheney (Palo Alto, CA: Stanford University Press, 2009). 16 Jeff Yates and Andrew Whitford, “Institutional Foundations of the Presidents Issue Agenda.” Political Research Quarterly 58(4, 2005):577–585. 17 See Pfiffner, The Strategic Presidency: Hitting the Ground Running, 2nd ed. (Lawrence: University Press of Kansas, 1996). 18 See Warshaw, The Co-presidency of Bush and Cheney. 19 In contrast, the low priority given to domestic policy in Bush’s second term is symbolized by the appointment of a low-profile domestic policy advisor, Claude Allen. The appointment of Allen, a little-known official from the Department of Health and Human Services, seemed to have been a symbolic gesture toward the evangelical community. Less than one year after his appointment, Allen resigned after being arrested and charged with shoplifting. See Warshaw, The Co-presidency of Bush and Cheney. 20 Ibid. 21 See Light, The President’s Agenda. 22 See Jonathan Alter, The Promise: President Obama’s First Year (New York: Simon and Schuster, 2010). 23 See Richard P. Nathan, The Administrative Presidency, 2nd ed. (New York: John Wiley, 1983). 24 See David M. Shafie, “What I Saw in Copenhagen,” STEP Ahead: Newsletter of the Science, Technology and Environmental Policy Section of the APSA. 8(1, January 2010):2–3. 25 For recent studies of prerogative power, see William Howell, Power Without Persuasion (Princeton, NJ: Princeton University Press, 2003); Philip Cooper, By Order of the President: The Use and Abuse of Executive Direction Action. (Lawrence: University Press of Kansas, 2002); and Shull, Policy by Other Means. See also Kenneth R. Mayer, With the Stroke of a Pen (Princeton, NJ: Princeton University Press, 2001) and Adam Warber, Executive Orders and the Modern Presidency: Legislating from the Oval Office (Boulder, CO: Lynne Rienner Publishers, 2006). 26 William D. Howell and Kenneth Mayer, “The Last One Hundred Days,” Presidential Studies Quarterly 35(3, 2005):533–553. 27 See Edwards and Wayne. 28 See Shull. 29 For example, see Alter, 98. 30 Ibid., 78. 31 Ibid., 47. 32 See Light, “Obama and the Federal Bureaucracy,” in Obama: Year One, ed. Thomas Dye (New York: Longman, 2010). 33 Ibid. 34 Ibid. 35 See Alter, 339. 36 Ibid., 63. 37 See Dye, Chapter 6. 38 Ibid., 244. 39 See Alter, 259. 40 Light, “Domestic Policy Making,” Presidential Studies Quarterly 30(1, 2000):109–132. 41 George A. Krause, “The Secular Decline in Presidential Domestic Policymaking,” Presidential Studies Quarterly 34(4, 2004):779–792. 42 See Light, The President’s Agenda.

11 The Presidency and Foreign Policy Meena Bose

“The Constitution . . . is an invitation to struggle for the privilege of directing American foreign policy.”1 This fundamental insight about American foreignpolicy making from Edward S. Corwin is as relevant in the twenty-first century as it was when the framers of the Constitution drafted the document in 1787. The Constitution of the United States grants shared power to the legislative and executive branches to make foreign policy—for example, Congress has the power to declare war, but the president is commander in chief of the armed forces; the president may negotiate treaties with foreign powers, but they require approval from two thirds of the Senate for ratification; the president appoints ambassadors to represent the United States abroad, but they require confirmation by the Senate with a majority vote. The two branches must cooperate to define and pursue American foreign-policy interests, even though their perspectives sometimes come into conflict with each other. While the U.S. system of separation of powers and checks and balances gives both Congress and the presidency a voice in foreign policy, the chief executive bears the primary responsibility for shaping, negotiating, and conveying U.S. priorities abroad. The many constitutional roles granted to the president mandate leadership in foreign affairs. As Clinton Rossiter writes, the president serves as chief of state, chief executive, chief diplomat, commander in chief, and chief legislator.2 Each role demands executive initiative to represent the United States abroad and guide domestic agencies and institutions, including Congress, in deciding how to address other nations’ interests and expectations of the United States. The constitutional preeminence of the president in foreign policy has become more pronounced with the rise of the United States as a global superpower. After World War II, the United States did not shift its focus inward, as it did after World War I. Instead, the United States played a highly significant role in rebuilding Western Europe with the Marshall Plan, in protecting its allies from the advance of communism through the creation of the North Atlantic Treaty Organization (NATO), and in assisting developing countries through the creation of such organizations as the World Bank and International Monetary Fund. When Richard E. Neustadt first published his classic analysis of the workings of presidential power in 1960, he included “abroad” as one of the president’s constituencies, along with executive officials, party members, Congress, and the public at large.3 Neustadt did not explain

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who “abroad” comprised—leaders of other nations or foreign publics, or both—but his recognition of the importance of foreign constituencies for presidential power indicated the importance of the chief executive in foreign policy. In addition to the president and Congress having constitutional responsibilities in foreign policy, other agencies and actors participate in the process as well. Cabinet officials, such as the secretaries of state and defense (originally war), serve as the president’s top advisers in international affairs. The National Security Act of 1947 created the modern-day Department of Defense, the National Security Council (NSC), the Central Intelligence Agency (CIA), and the Joint Chiefs of Staff (JCS) to assist the chief executive in the development of national security policy.4 The creation a few years later of the position of special assistant to the president in national security affairs, popularly known today as the national security adviser, centralized the foreign-policy making process in the White House. How presidents manage the diverse advisory and political resources at their disposal significantly influences their prospects for achieving their policy goals. This chapter evaluates the evolution of the presidency in foreign-policy making and the consequences for twenty-first-century governance. It begins by examining the constitutional debates about executive and legislative responsibilities in foreign affairs. (The judiciary plays an important role in modern American politics in defining the boundaries of institutional power in foreign affairs, and its contributions are discussed later in the chapter.) Next the chapter traces the development of American foreign-policy interests as defined by presidents, from George Washington into the twentieth century. We then examine changing presidential priorities in foreign affairs through the Cold War, focusing particularly on consequences of the Korean and Vietnam wars. Next, we consider how presidents have shaped U.S. foreign-policy priorities from the post-Cold War era into the post-9/11 world. In addition, we also examine how the presidential policy-making process has evolved in conjunction with expanding executive initiative in foreign affairs, and briefly evaluate foreign affairs in the Obama administration, concluding by assessing the prospects for and challenges of continued presidential preeminence in foreign affairs in the twenty-first century.

Constitutional Framework for Foreign Policy When the framers drafted the Constitution, they made Congress the first branch of government because it would represent the people most closely through districts in the House and states in the Senate. The president and vice president would be the only nationally elected leaders, and the executive branch would follow legislative direction in policy making. At the same time, by creating separate institutions, the framers ensured that the president would have the platform as well as the authority to define the national interest and represent U.S. interests to other nations. As Neustadt writes, the Constitution “created a government of separated institutions sharing powers.”5 The constitutional foreign-policy power that has sparked the most debate over executive-legislative authority is the power to declare war. In Article I, Section 8,

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the Constitution clearly states that “The Congress shall have Power to . . . declare War.”6 Initially the Constitution had stated that Congress would have the power to “make war,” but the framers decided that the president should be able to act quickly to protect the country in times of national emergency—as James Madison and Elbridge Gerry explained, “to repel sudden attacks.”7 Granting the legislative branch the war power marked a break with the British form of government, in which all powers for war making and foreign affairs rested with the monarch. Giving Congress this power ensured that the president would not serve as a king.8 At the same time, the Constitution also states in Article II, Section 2, that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”9 Because Congress has the authority to create and maintain the armed forces (originally an Army and Navy, as described in Article I, Section 8 of the Constitution), and to call state militias into national service, it determines the opportunities for the president to fulfill these responsibilities. Louis Fisher writes that the framers wanted the president to have the title of commander in chief to “preserv[e] civilian supremacy over the military.”10 In Federalist No. 69, Alexander Hamilton wrote that commander in chief would mean “nothing more than the supreme command and direction of the military and naval forces,”11 but Fisher points out that Hamilton understated the importance of those actions, which, he writes, “can be powerful forces in determining the scope and duration of war.”12 With appointments and treaties, the framers granted the power of initiation to the president and approval to the Senate. The Constitution states that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,”13 with a two-thirds vote required for ratification. The president also may nominate ambassadors and other diplomatic representatives of the United States, along with executive-branch officials in foreign affairs, with a majority vote in the Senate required for appointment. As the Constitutional Convention neared conclusion in the summer of 1787, the framers decided “to increase further the president’s role”14 in both appointments and treaties, recognizing the necessity and importance of executive leadership in each area. The constitutional sharing of power in foreign policy between Congress and the president, then, did not mean equal participation from idea to implementation. As Louis Henkin writes: In foreign affairs the president represents the United States, and the people of the United States, to the world. Congress represents the people at home, the sum of different groups, constituencies, interests (general and special). The president leads; Congress legislates. The president represents needs for expertise, secrecy, speed, efficiency. Congress provides wider, soberer, more deliberate, more cautious, longer-term values and judgments.15 Henkin suggests that while the president directs foreign policy on a daily basis, Congress ultimately determines American priorities and interests. This delineation of responsibility is consistent with the framers’ concerns about balancing

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the need for executive leadership with representative democracy. In practice, the president’s influence on day-to-day decisions has become highly consequential in shaping, and sometimes constraining, long-term choices.

Evolution of Presidential Power in Foreign Policy In the early decades of the United States, presidential power in foreign policy focused primarily on protecting the boundaries of the new republic. Presidential statements about the extent of American interests abroad served as doctrines that guided foreign policy through the nineteenth century. Those interests expanded with the Spanish-American War in 1898, when the United States acquired control over overseas territories in the Atlantic and Pacific. In the early decades of the twentieth century, presidents gradually expanded U.S. leadership abroad, but did not establish sustained international leadership. This changed after World War II, with the rise of the United States as a global superpower and the onset of the Cold War. The expansion of American responsibilities abroad was matched by the expansion of presidential power to determine and execute those responsibilities. When George Washington took office as the nation’s first president, he gave practical meaning to the powers outlined in Article II of the Constitution through his decisions and policies. Washington and Treasury Secretary Alexander Hamilton asserted the president’s right to issue executive orders independently of Congress through the Neutrality Proclamation of 1793, which ensured that the United States would not become involved in the war between Great Britain and France. The proclamation was issued over the objections of Secretary of State Thomas Jefferson and U.S. Representative James Madison from Virginia. In a famous written debate with Hamilton under the pen name “Helvidius,” Madison stated that the legislative branch needed to participate in making such decisions. Hamilton, using the pen name “Pacificus,” declared that “The Legislative Department is not the organ of intercourse between the U[nited] States and foreign Nations.”16 Apart from this debate over executive-legislative power, Washington is best known in foreign affairs for asserting a limited role for the United States abroad. In his Farewell Address to the nation, published in newspapers around the country in 1796, Washington encouraged diplomatic and economic ties with other nations, while cautioning against “permanent alliances.”17 As he explained, “Our detached and distant situation invites and enables us to pursue a different course.”18 President James Monroe expanded slightly on this statement in his 1823 message to Congress, in which he declared that the United States would object to any attempts by European nations to colonize western North America, or to assert control over newly independent countries in South America. The Monroe Doctrine established U.S. authority over the Western hemisphere, and became policy through presidential decree, without legislative input.19 U.S. engagement in foreign affairs expanded permanently after the SpanishAmerican War of 1898, with the acquisition of Cuba and Puerto Rico in the Atlantic, and Guam and the Philippines in the Pacific. As the United States assumed political control in overseas territories, its interest in those countries’ internal

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political debates grew as well. In December 1904, President Theodore Roosevelt famously extended the reach of the Monroe Doctrine from defensive protection of states in the Western hemisphere to the possibility of intervention in those countries if needed to ensure political stability. As Roosevelt stated in his message to Congress: “Chronic wrongdoing, or an impotence which results in the general loosening of the ties of civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however, reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of an international police power.”20 The Roosevelt Corollary to the Monroe Doctrine made the case for U.S. interventions in the Western hemisphere in the early 1900s. The president presented the doctrine to Congress in his annual written report, and he did not seek legislative input in the decision-making process, nor did Congress pursue such participation. Less than a decade after Roosevelt left office, President Woodrow Wilson brought the nation into its first global conflict, World War I, for which Congress issued a declaration of war in 1917. Wilson envisioned a postwar world in which diplomacy would supersede conflict between states, and he led the negotiations after the war ended to draft the Treaty of Versailles and propose a League of Nations to prevent future wars. But Wilson refused to address congressional concerns about restrictions that the league might impose on state sovereignty, and consequently the Senate failed to ratify the treaty, leaving the United States out of the new international organization.21 Learning from the problems that Wilson faced after World War I, President Franklin D. Roosevelt was much more attentive in World War II to including members of Congress in the planning for postwar international agencies. The International Monetary Fund, World Bank, and United Nations were all established in the 1940s through presidential initiative and congressional approval.22 And Congress had, of course, endorsed U.S. involvement in World War II after the bombing of Pearl Harbor on December 7, 1941.23 While presidents thus presented U.S. doctrine without congressional involvement in the nineteenth and early twentieth centuries, they still, for the most part, worked with the legislative branch to create international organizations that would be instrumental in American foreign policy. This balance of power between the executive and legislative branches began to change after the onset of the Cold War.

Presidential Leadership of Foreign Policy in the Cold War Presidential initiative in foreign affairs expanded permanently with the rise of the United States as a global superpower after World War II. The president defined and communicated U.S. national security interests, and Congress assisted the White House in this process through establishing institutions and organizations to develop those policies. But executive decisions to send American troops abroad into extended military conflicts in Korea and Vietnam without congressional declarations of war sparked a backlash against presidential foreign-policy

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making. Consequently, Congress attempted to re-assert its authority in foreign affairs, albeit with limited success. The Truman administration conceptualized the national security strategy that would guide American foreign policy during the Cold War, namely, the “containment” doctrine. George F. Kennan developed the doctrine as director of policy planning in the Department of State in 1947, and it provided the basis for policy choices until the fall of the Berlin Wall in 1989. Congress approved many of the specific policies that resulted from the containment doctrine, such as the Marshall Plan for foreign assistance to rebuild Western Europe, and the creation of NATO to provide collective security to participating countries against the spread of communism. But the development of the containment strategy, and its many variations from 1947 to 1989, took place in the executive branch and under White House direction.24 Congress facilitated this process with the passage of the National Security Act of 1947, which created the modern infrastructure for defense planning and policy making. The law created the Department of Defense (to replace the Department of War), the NSC, the CIA, and the JCS. These agencies are in the executive branch, and while their agency heads typically require Senate confirmation, they are part of the president’s advisory circle and they represent the president’s agenda. Thus, since the onset of the Cold War, the president has had more advisory resources to develop foreign and national security policy, thereby increasing executive leadership opportunities in both areas.25 As the president’s advisory resources in foreign affairs have expanded, organizing those resources to create a systematic decision-making process is a continuing challenge. Early studies of presidential decision making in foreign affairs concentrated on the differences between formally structured and more loosely organized, or informal, decision-making systems. More recent scholarship, drawing on the archival record in the modern presidency, presents more nuanced explanations of strengths and weaknesses in decision-making procedures, depending on the president’s personality, the issue at hand, time constraints, and other variables.26 Alexander George’s case for “multiple advocacy” in presidential foreign-policy making blends the positive features of formal and informal decision-making models to develop a carefully structured process, one that maximizes informed debate over policy options with the president’s active participation.27 Given the importance of presidential policy communication as well as policy doctrine in the modern era, multiple advocacy has relevance to the development of a president’s public speeches as well, to ensure that signals to other nations are not misinterpreted.28 In waging the Cold War, presidents managed their expanded advisory processes in different ways. The declassified record reveals that President Dwight D. Eisenhower employed what later became known as multiple advocacy through weekly NSC meetings in which advisers systematically debated policy options, and the president was fully involved in the process.29 Eisenhower created the post of special assistant to national security affairs to ensure that someone would be responsible for managing meeting preparation, debate, and follow-up actions. His successor, John F. Kennedy, initially rejected the extensive bureaucratic structure that accompanied Eisenhower’s weekly NSC meetings. After the failure of the Bay of

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Pigs invasion in April 1961, however, Kennedy adapted his decision-making procedures to incorporate some more formal organizational features, and his deliberations during the Cuban missile crisis in October 1962 are viewed as a textbook model of weighing options carefully before making a decision.30 Also under Kennedy, the special assistant for national security affairs became a policy advocate rather than only a policy manager, and the position has been known informally since then as national security adviser. White House leadership of national security decision making after World War II seemed a logical outgrowth of the U.S. role in the world. More controversial, however, were executive decisions to wage two extended conflicts without seeking a congressional declaration of war. In 1950, President Harry S. Truman decided to combat the North Korean invasion of South Korea under the auspices of a United Nations Security Council resolution authorizing the use of force to repel the invasion. Truman did not seek congressional authorization, and while he did not face significant criticism at the time, his failure to secure legislative support became more significant as the war settled into a stalemate.31 In 1964, President Lyndon B. Johnson requested an open-ended commitment to aid U.S. ally South Vietnam against communist insurgents, and Congress wholeheartedly endorsed this action by passing the Gulf of Tonkin resolution.32 The resolution became the basis for ultimately sending more than half a million U.S. troops to fight the Vietnam War. By the early 1970s, criticism of each president’s decision not to seek a congressional declaration of war was aptly illustrated by historian Arthur M. Schlesinger’s famous description of the White House as an “imperial presidency.”33 Congress responded to what it viewed as presidential usurpation of its constitutional war powers by passing the War Powers Resolution (WPR) of 1973 over President Richard Nixon’s veto. The WPR specified deadlines for the president to inform Congress of sending troops abroad and for securing congressional approval; if Congress did not authorize the use of force or ordered the president to bring troops home, then the president would have to comply. No president, however, has viewed the WPR as constitutional, and Congress to date has not pressed the president into a showdown over following it; in fact, Congress has used joint resolutions to support presidential decisions to send troops abroad.34

Changing Presidential Leadership from the Post-Cold War Era to the Post-9/11 World While the WPR illustrated congressional frustration with what legislators viewed as executive overreach in foreign affairs, those concerns became less pressing, for the most part, as the Cold War came to closure in the 1980s. President Ronald Reagan went from describing the Soviet Union as an “evil empire” in his first term to having four summit meeting in his second term with Soviet leader Mikhail Gorbachev. The meetings resulted in the signing of the Intermediate-Range Nuclear Forces (INF) Treaty, in which the two superpowers agreed for the first time to reduce their respective nuclear arsenals.35 Two years later, one of the most visible

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symbols of the Cold War, the Berlin Wall, came down, and the forty-plus-year conflict ended without confrontation between the two superpowers.36 Reagan’s legacy in foreign affairs was tarnished by the Iran-Contra scandal, in which his National Security Council sold arms to Iran and diverted profits to the Contra rebels in Nicaragua, in violation of congressional prohibitions of such assistance.37 The Iran-Contra hearings in Congress in the summer of 1987 raised anew questions about executive arrogance in foreign affairs. The Reagan administration was able to deflect some of those questions by removing officials involved in the covert program and quickly establishing a special commission to investigate the matter.38 Because the news was revealed halfway through Reagan’s second term, many members of Congress were not keen to seek major structural reforms to restrict an outgoing president’s hand in foreign affairs. In the post-Cold War era, presidents worked closely with Congress in foreign affairs, and while the executive agenda still guided U.S. actions, Congress supported presidential leadership, and at times shaped presidential actions significantly. In the 1991 Persian Gulf War, President George H.W. Bush secured approval from the United Nations Security Council to use military force to repel Iraq’s invasion of Kuwait. Although he maintained that he did not need congressional approval to send U.S. forces abroad, he ultimately secured a joint congressional resolution authorizing military action a few days before the war began.39 The Clinton administration worked closely with a Republican-led Congress in the late 1990s to resolve payment of outstanding U.S. dues to the U.N. While President Clinton’s political opponents were sharply critical of the international organization, Congress ultimately agreed to reduce U.S. arrears, provided that the percentage assessments of U.S. financial contributions to the U.N. would be reduced as well.40 Presidential preeminence in foreign affairs returned after the terrorist attacks of September 11, 2001, when the American public as well as Congress looked to the White House for leadership. One week after the attacks, Congress approved the Authorization for Use of Military Force Against Terrorists (AUMF), which gave the president power to “to use all necessary and appropriate force” against nations, groups, or people who were involved in the attacks or assisted the terrorists.41 This legislation provided the basis for the U.S. war in Afghanistan to destroy terrorist networks in the country. In October 2002, Congress passed the Authorization for Use of Military Force Against Iraq resolution, which provided the basis for the Iraq War.42 President George W. Bush also asserted in his 2002 National Security Strategy that the United States reserved the right to wage preemptive warfare to halt threats to American national security before they turned into attacks.43 Asserting the right to wage preemptive war—“even if uncertainty remains as to the time and place of the enemy’s attack”44—clearly implied that such determination would be made by executive initiative, with no mention of congressional input.45 The George W. Bush administration asserted executive power to combat terrorism in other ways as well. The administration suspended the writ of habeas corpus for what it termed “enemy combatants” and declared that they could be tried in military tribunals, issued memoranda granting broad latitude in interrogation of detainees, permitted surveillance of suspected terrorists without warrants, and

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greatly expanded the use of signing statements to declare that the president was not bound by parts of the legislation that conflicted with his authority.46 Supporters of the Bush White House’s expansion of executive power used the concept of a “unitary executive” to justify such actions, declaring that the president’s control of the executive branch granted autonomy in these areas, and that the other branches of government may not constitutionally infringe upon such autonomy.47 The office of the vice presidency was instrumental in endorsing and promoting this expansion, raising the question of whether the president or vice president was directing executive decisions in combating terrorism.48 In response to the Bush administration’s actions, Congress and the Supreme Court attempted to restore a balance of power with the executive branch in combating terrorism. Congress, for example, passed legislation that prohibited torture of detainees, and attempted to expand its oversight over surveillance of suspected terrorists when it renewed the USA PATRIOT Act. The Supreme Court held that Congress had to authorize the creation of military commissions (which it did), and that while suspected terrorists could be detained, they could not be held indefinitely without cause—they could not be denied the writ of habeas corpus.49 Nevertheless, the executive branch in the post-9/11 era still clearly retained the initiative in deciding how the United States would thwart terrorist attacks. Congress did play a larger role in establishing new executive agencies that would centralize programs to protect the United States from future threats and coordinate intelligence gathering to anticipate and prevent such disasters. Two weeks after the September 11, 2001 terrorist attacks, President Bush announced that the White House would create an Office of Homeland Security, whose director would have Cabinet status and report directly to the president.50 Members of Congress advocated the creation of a Cabinet-level department, and the White House eventually endorsed this proposal, with President Bush signing the Homeland Security Act in November 2002 to establish the Department of Homeland Security (DHS). Twenty-two federal agencies were placed under the direction of DHS, in the largest reorganization of the government since the National Security Act of 1947.51 To oversee and coordinate intelligence gathering among separate federal intelligence agencies, Congress and the president created the position of Director of National Intelligence (DNI), who would serve as the president’s primary advisor for national security-related intelligence.52 The post-9/11 era, then, is marked primarily by executive leadership of foreign affairs, viewed by some as constitutional and necessary for national security, and by others as unconstitutional and dangerous to the American principles of separation of powers and checks and balances. While Congress has endorsed many executive decisions, and played a major role in establishing new offices and institutions to combat terrorism, the new infrastructure is part of the executive branch and thus falls under presidential direction. A key concluding question to consider in evaluating post-9/11 presidential leadership is whether the conflict between the White House and Congress stems from specific individuals and institutions or represents more endemic challenges. An early evaluation of the Obama administration’s foreign policy presents some indicators.

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An Early Evaluation of President Obama’s Foreign Policy Leadership When he announced his candidacy for president on February 10, 2007, Senator Barack Obama declared that “victory against our enemies will come only by rebuilding our alliances and exporting those ideals that bring hope and opportunity to millions around the globe.”53 He concluded with the promise that Americans could work together to “usher in a new birth of freedom on this Earth.”54 In some ways, these goals were similar to those of the George W. Bush administration, particularly the emphasis on exporting democratic values and ideals abroad, but they suggested a new strategy for the next administration, one that would transform U.S. policies and policy making. This call for change was unsurprising (indeed, that was the primary theme of the Obama campaign), given the controversies surrounding much of the Bush administration’s foreign-policy agenda, from the Iraq War to treatment of detainees. Furthermore, new presidents typically seek to distinguish themselves from their predecessors, especially when they come from different political parties.55 But enacting such change, especially in foreign affairs, proves difficult in practice, and presidents often find that, at least initially, their “new” approach is evident more in rhetoric than in doctrine. To date—recognizing that an evaluation of presidential leadership before the congressional midterm elections is a very early appraisal—Obama’s actions in foreign policy have reflected clear goals, if not a unifying strategic concept, a collegial advisory team, and some tension with Congress over executive power. The challenges of developing a strategy to guide decision making are the most difficult to resolve, primarily because of the nature of threats in the post-Cold War world, especially with respect to combating terrorism. President Obama’s foreign-policy advisers, notably Vice President Joe Biden and Secretary of State Hillary Rodham Clinton, have presented administration goals fully and consistently, though potential rivalries loom over such controversial subjects as the Middle East peace process and tensions with Iran and Pakistan. And while the White House and Congress have demonstrated collegial interactions in foreign-policy choices, they have experienced some conflict over interbranch cooperation in enacting legislation. Obama’s campaign slogan of “change we can believe in” referred as much to the practice of politics as to policy choices. As a relative newcomer to Washington, first elected to national office in 2004 when he won the U.S. Senate race in Illinois, Obama made a credible case that he would govern differently than Bush or other, more experienced presidential candidates, with more openness and engagement with the American public. He also pledged significant policy changes, which in foreign affairs included reducing the U.S. presence in Iraq, as well as pursuing diplomacy with nations that posed threats to American interests, such as Iran and North Korea. In a 2007 debate with other Democratic presidential contenders, Obama made a highly publicized and much-debated statement about his willingness to meet individually with the leaders of Cuba, Iran, North Korea, Syria, and Venezuela “without precondition.” As he explained in the debate, “The

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notion that somehow not talking to countries is punishment to them—which has been the guiding diplomatic principle of [the Bush] administration—is ridiculous. I think that it is a disgrace that we have not spoken to them.”56 Since taking office, President Obama has advanced his foreign-policy agenda through policy decisions, speeches, and travel. His policies have included endorsing an international agreement to lower greenhouse gas emissions, reaching several agreements with Russia to reduce nuclear warheads and improve bilateral cooperation, and gaining NATO support for sending non-combat troops and trainers to Afghanistan. The president also has declared a significant force increase in Afghanistan as well as a plan to significantly reduce the U.S. military presence in Iraq in 2010. In his inaugural address, Obama obliquely criticized the previous administration’s policies by stating “we reject as false the choice between our safety and our ideals,” alluding to such controversies as treatment of detainees and surveillance of suspected terrorists, but he did not delve into specifics.57 The president spoke directly to the Muslim world, calling for “a new way forward, based on mutual interest and mutual respect,” and he emphasized the importance of diplomacy, promising corrupt or illegitimate leaders that “we will extend a hand if you are willing to unclench your fist.” He reiterated this point in his first speech before Congress, declaring: “In words and deeds, we are showing the world that a new era of engagement has begun.”58 Perhaps the best evidence of “engagement” by the Obama administration is the president’s travel abroad. In his first six months in office, he made trips to both large and small countries, including Russia, Ghana, and four Middle Eastern states: Egypt, Iraq, Saudi Arabia, and Turkey. In Egypt, he gave a widely publicized speech at Cairo University in which he called for a “new beginning between the United States and Muslims around the world.”59 He also participated in three European summit meetings and signed agreements to regulate the global financial system more effectively, address climate change, and promote security in Afghanistan. According to Brendan J. Doherty, who has examined early presidential travel across administrations, Obama spent twenty-five days, or fourteen percent, of his first six months in office (calculated from January 20 through June 30, 2009) on international trips.60 When Obama won the Nobel Peace Prize in 2009, the award committee explicitly recognized his “extraordinary efforts to strengthen international diplomacy and cooperation between peoples.”61 Despite the appeal of Obama’s rhetoric to many domestic and international constituencies, putting his far-reaching goals into practice has proved difficult to date. After Iranian President Mahmoud Ahmadinejad won re-election in June 2009 with disputed results, the Obama administration refrained from strong criticism of the Iranian government’s crackdown on opposition protests.62 The administration seeks to contain Iran’s nuclear program, but it has not achieved a substantive breakthrough in negotiations to date, an assessment that also describes the administration’s efforts to further the Middle East peace process and halt North Korean aggression. President Obama issued an executive order in his first week in office to close the Guantanamo Bay detention facility within one year, but the

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attempted Christmas Day bombing of a U.S.-bound airplane has ended transfer of detainees to Yemen, given possible connections between the attack attempt and al Qaeda terrorist forces there. 63 In addressing the U.S.’s multi-faceted agenda in foreign affairs, the Obama administration faces the challenge of trying to unify its actions under a single, coherent doctrine. Shortly after Obama took office, one commentator described his strategic approach as focused on process rather than on policies, emphasizing “style and temperament . . . pragmatism and perseverance.”64 The administration’s National Security Strategy, released in May 2010, emphasized the link between domestic and international interests, stating: “This strategy recognizes the fundamental connection between our national security, our national competitiveness, resilience, and moral example. And it reaffirms America’s commitment to pursue our interests through an international system in which all nations have certain rights and responsibilities.”65 Obama’s strategic doctrine is consistent with his campaign promises to pursue U.S priorities abroad by working with other nations. Early critiques focus on its efforts to encompass all possible U.S. interests; one commentator describes the strategy as “a grab bag of concerns that don’t amount to a coherent strategy.”66 The wide-ranging strategy statement may partly reflect Obama’s collegial approach to decision making, which seeks to meld diverse perspectives into policy. When President-elect Obama announced his national security team in December 2008, a widely held observation was that he had selected experienced professionals with a common worldview as well as strong personalities and leadership expectations that might spark friction. As one article questioned, “Can Obama manage this team of A-listers, many of whom have outsized personalities and tend to see themselves as leaders in their own right rather than followers?”67 Another concern was that the group might be too ideologically compatible to pay heed to dissenting views; an editorial described the group as “proven pragmatists and team players,” who risked succumbing to “groupthink,” or consensus-building that overrides policy debate.68 Obama explicitly stated in introducing his advisers that he would not face that problem, declaring “I am a strong believer in strong personalities and strong decision making.”69 After one year in office, questions about collegiality and cohesiveness in Obama’s national security team appear to have subsided. While this may be due partly to the administration’s focus on the economy and health care, it also reflects the president’s decision-making style. A 2009 column described the potential for conflict with both strong advisers and the experienced special envoys that Obama appointed for particularly thorny issues—former Senator George J. Mitchell for the Middle East, ambassador and longtime diplomat Richard C. Holbrooke for Afghanistan, and foreign policy expert Dennis Ross for Iran. Yet upon asking “So who’s running the new administration’s foreign policy?” the column concluded, “The answer turns out to be simple, clear and—in retrospect—obvious: Obama.”70 At the outset of his term, Obama issued a directive calling for diverse participation in National Security Council (NSC) meetings, including the attorney general and the secretary for homeland security in the group.71 The president also

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made his national security adviser responsible for coordinating NSC meetings, consistent with his recent predecessors. Assessing the implementation of these goals may be premature, but to date, the Obama administration has raised no red flags about its management of national security decision making. President Obama’s interactions with Congress over the extent of executive power have been more contentious. In particular, his use of signing statements— executive instructions appended to legislation to direct their implementation— raises concerns about continuing a practice that was heavily criticized in the previous administration. George W. Bush issued nearly twice as many signing statements as all of his predecessors, typically to challenge provisions in bills. While this practice dates back to the nineteenth century, it expanded significantly in the Reagan administration and has continued since then.72 Shortly after taking office, President Obama issued a memorandum declaring that his administration would exercise “caution and restraint” with signing statements, which would be “based only on interpretations of the Constitution that are wellfounded.”73 Since then, he has issued several signing statements, including one about aid to the World Bank and International Monetary Fund that states that conditions in the legislation will not be permitted to restrict the president’s authority in foreign affairs.74 Four senior Democrats in the House of Representatives expressed their dismay to the president in writing, stating, “During the previous administration, all of us were critical of [Bush’s] assertion that he could pick and choose which aspects of congressional statutes he was required to enforce. We were therefore chagrined to see you express a similar attitude.”75 While this criticism hardly signifies a major executive-legislative conflict, it does indicate continuing competition between the two branches over the appropriate balance of power in policy making.

Conclusion The role of the president in foreign policy has expanded greatly since the founding of the American republic, due to increased responsibilities for the United States as well as the evolution of the modern presidency. While the president is the primary representative of the United States to other nations, Congress has explicit constitutional duties in foreign affairs as well. Corwin’s quotation at the beginning of this chapter about an “invitation to struggle” between the two branches of government in American foreign-policy making becomes particularly significant in times of crisis. Both the legislative and executive branches bear responsibility for maintaining the constitutional system of sharing powers and checking each other. In the twenty-first century, cooperation between the branches of government may be as important as cooperation with other nations to pursue American interests in foreign affairs successfully.

Notes 1 Edward S. Corwin, The President: Office and Powers, 1787–1984, 5th rev. ed., ed. Randall W. Bland, Theodore T. Hindson, and Jack W. Peltason (New York: New York University Press, 1984), 201.

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2 Clinton Rossiter, The American Presidency: The Powers and Practices, the Personalities and Problems of the Most Important Office on Earth (New York: Harcourt, Brace, 1956), 16. 3 Richard E. Neustadt, Presidential Power: The Politics of Leadership (New York: John Wiley & Sons, 1960), 7. 4 Amy B. Zegart, Flawed by Design: The Evolution of the CIA, JCS, and NSC (Palo Alto, CA: Stanford University Press, 1999). 5 Richard E. Neustadt, Presidential Power and the Modern Presidents (New York: The Free Press, 1990), 29. 6 See the text of the Constitution at http://www.archives.gov/exhibits/charters/constitution_transcript.html 7 See Louis Fisher, Presidential War Power, 2nd ed. (Lawrence: University Press of Kansas, 2004), 7–8. 8 For a counter-perspective, which contends that the framers intended to give the presidency primary authority in war powers, see John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2006). Yoo states that Congress’s power to declare war refers to a formal recognition of conflict between states, but that the president is responsible for all negotiations and decisions preceding such a declaration. Had the framers intended to restrict presidential war power, Yoo says, they would have done so explicitly, following the model of some state constitutions. 9 See the text of the Constitution at http://www.archives.gov/exhibits/charters/constitution_transcript.html 10 Fisher, Presidential War Power, 12. 11 Federalist No. 69, quoted in Fisher, Presidential War Power, 12. For the full text of the Federalist Papers, see The Avalon Project, Yale University, at http://avalon.law.yale.edu/ subject_menus/fed.asp 12 Fisher, Presidential War Power, 12. 13 See the text of the Constitution at http://www.archives.gov/exhibits/charters/constitution_transcript.html 14 Sidney M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776–2007, 4th ed. (Washington, DC: CQ Press, 2008), 48. 15 Louis Henkin, “Foreign Affairs and the Constitution,” Foreign Affairs (1987–88): 284–310. 16 “The Pacificus-Helvidius Letters,” 1793, excerpted in The Evolving Presidency, ed. Michael Nelson, 3rd ed. (Washington, DC: CQ Press, 2008), 51–59. 17 “George Washington’s Farewell Address,” 1796, excerpted in The Evolving Presidency, 60–69. 18 Ibid. 19 “The Monroe Doctrine,” 1823, in The Evolving Presidency, 77–81. Also see Fred I. Greenstein, Inventing the Job of President: Leadership Style from George Washington to Andrew Jackson (Princeton, NJ: Princeton University Press, 2009), 69–70. 20 Theodore Roosevelt, “Fourth Annual Message,” December 16, 1904, cited in Bruce W. Jentleson, American Foreign Policy: The Dynamics of Choice in the Twenty-First Century, 3rd ed. (New York: W.W. Norton, 2007), 78–79. 21 The intellectual and policy debates about a new international order that took place in the United States during and after World War I are discussed in Ross A. Kennedy, The Will to Believe: Woodrow Wilson, World War I, and America’s Strategy for Peace and Security (Kent, OH: Kent State University Press, 2009). 22 Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations (Boulder, CO: Westview Press, 2003), 108, 263–281. 23 Stephen E. Ambrose and Douglas G. Brinkley, Rise to Globalism: American Foreign Policy Since 1938, 8th rev. ed. (New York: Penguin Books, 1997), 13–14. 24 John Lewis Gaddis presents a comprehensive analysis of containment during the Cold War in Strategies of Containment: A Critical Appraisal of American National Security Policy

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During the Cold War, rev. and expanded ed. (New York: Oxford University Press, 2005). Zegart, Flawed by Design. See, for example, Richard Tanner Johnson, Managing the White House: An Intimate Study of the Presidency (New York: Harper & Row, 1974); Cecil V. Crabb and K.V. Mulcahy, Presidents and Foreign Policy Making: From F.D.R. to Reagan (Baton Rouge: Louisiana State University Press, 1987); John P. Burke and Fred I. Greenstein, How Presidents Test Reality: Decisions on Vietnam, 1954 and 1965 (New York: Russell Sage Foundation, 1989); Patrick J. Haney, Organizing for Foreign Policy Crisis: Presidents, Advisers, and the Management of Decision Making (Ann Arbor: University of Michigan Press, 1997); Jean A. Garrison, Games Advisors Play: Foreign Policy in the Nixon and Carter Administrations (College Station: Texas A&M University Press, 1999); William W. Newmann, Managing National Security Policy: The President and the Process (Pittsburgh: University of Pittsburgh Press, 2003). See Alexander L. George, “The Case for Multiple Advocacy in Making Foreign Policy,” American Political Science Review 66, 3 (September 1972):751–785; George, Presidential Decisionmaking in Foreign Policy: The Effective Use of Information and Advice (Boulder, CO: Westview Press, 1980). For case studies of George’s concept, see Alexander Moens, Foreign Policy Under Carter: Testing Multiple Advocacy Decision Making (Boulder, CO: Westview Press, 1990); Meena Bose, Shaping and Signaling Presidential Policy: The National Security Decision Making of Eisenhower and Kennedy (College Station: Texas A&M University Press, 1998). Meena Bose, “Words as Signals: Drafting Cold War Rhetoric in the Eisenhower and Kennedy Administrations,” Congress and the Presidency 25, 1 (Spring 1998):23–41. On Eisenhower’s national security decision making, see Fred I. Greenstein, The Hidden-Hand Presidency: Eisenhower as Leader (New York: Basic Books, 1982); Bose, Shaping and Signaling Presidential Policy; Robert R. Bowie and Richard H. Immerman, Waging Peace: How Eisenhower Shaped an Enduring Cold War Strategy (New York: Oxford University Press, 2000). See transcripts from the meetings held by Kennedy and his advisers, known as the Executive Committee or “ExComm,” during the Cuban missile crisis in Ernest R. May and Philip D. Zelikow, The Kennedy Tapes: Inside the White House During the Cuban Missile Crisis (Cambridge: Belknap Press, 1997); and Sheldon M. Stern, Averting the “Final Failure”: John F. Kennedy and the Secret Cuban Missile Crisis Meetings (Palo Alto, CA: Stanford University Press, 2003). Fisher, “On What Legal Basis Did Truman Act?” The American Journal of International Law 89, 1 (January 1995):21–39; Garry R. Hess, Presidential Decisions for War: Korea, Vietnam, and the Persian Gulf (Baltimore: The Johns Hopkins University Press, 2001). Hess; Robert Dallek, Flawed Giant: Lyndon Johnson and His Times, 1961–1973 (New York: Oxford University Press, 1998). For transcripts of tape recordings that Johnson made of telephone conversations during his presidency, see Michael R. Beschloss, ed., Taking Charge: The Johnson White House Tapes 1963–64 (New York: Simon & Schuster, 1997); Beschloss, ed., Reaching for Glory: Lyndon Johnson’s Secret White House Tapes 1964–65 (New York: Simon & Schuster, 2001). Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973). Schlesinger’s analysis is a mea culpa of his original support for Truman’s decision to wage the Korean War without congressional approval. See Fisher, Presidential War Power, 102–103. For the text of the War Powers Resolution and a detailed analysis of its implementation, see the Congressional Research Service Report, “The War Powers Resolution: After Thirty Years,” March 11, 2004, at http://www.fas.org/man/crs/RL32267.html Journalist Don Oberdorfer, who covered the four summit meetings for The Washington Post, evaluates the path to the end of the Cold War in the 1980s in The Turn: From the Cold War to a New Era: The United States and the Soviet Union, 1983–1990 (New York: Poseidon Press, 1991).

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36 Mary Elise Sarotte mines the archival record in the United States and Europe to examine the fall of the Berlin Wall and the subsequent decision to reunify Germany in 1989: The Struggle to Create Post-Cold War Europe (Princeton, NJ: Princeton University Press, 2009). 37 For a highly detailed explanation of the Iran-Contra negotiations, see Theodore Draper, A Very Thin Line: The Iran Contra Affairs (New York: Hill and Wang, 1991). Also see the exhaustive report prepared by the independent counsel for the controversy, Lawrence E. Walsh, Firewall: The Iran-Contra Conspiracy and Cover-up (New York: W.W. Norton, 1997). 38 Edmund Muskie, Brent Scowcroft, and John Tower, The Tower Commission Report: The Full Text of the President’s Special Review Board (New York: Bantam Publishers, 1987). Also see David M. Abshire, Saving the Reagan Presidency: Trust Is the Coin of the Realm (College Station: Texas A&M University Press, 2005). 39 George H.W. Bush and Scowcroft, A World Transformed (New York: Knopf, 1998). Also see Bose, “Who Makes U.S. Foreign Policy? Presidential Leadership in Gulf Wars I and II,” in The Presidency and the Challenge of Democracy, ed. Michael A. Genovese and Lori Cox Han (New York: Palgrave Macmillan, 2006), 139–158. 40 The battle over U.S. dues to the U.N. in the late 1990s is discussed in Bose, “Private and Public Diplomacy: The U.S. Permanent Representative to the U.N. in the Clinton Years,” paper presented at William Jefferson Clinton: The ‘New Democrat’ from Hope Conference, Hofstra University, November 10–12, 2005. For a broader assessment of Clinton’s foreign-policy leadership, see Emily O. Goldman and Larry Berman, “Engaging the World: First Impressions of the Clinton Foreign Policy Legacy,” in The Clinton Legacy, ed. Colin Campbell and Bert A. Rockman (New York: Chatham House Publishers, 2000). 41 The text of the legislation is available through the U.S. Government Printing Office at http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/content-detail.html 42 The text of the resolution is available through the U.S. Government Printing Office at http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/content-detail.html 43 The text of the 2002 National Security Strategy is available through the National Archives at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss5.html 44 “The National Security Strategy,” September 2002, Section V, “Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction.” 45 President George W. Bush’s post-9/11 foreign policy is analyzed in Ivo H. Daalder and James M. Lindsay, America Unbound: The Bush Revolution in Foreign Policy (Washington, DC: Brookings Institution Press, 2003). 46 James P. Pfiffner evaluates the George W. Bush presidency’s actions in each of these four areas, arguing that they “undermined the constitutional balance among the branches,” in Power Play: The Bush Presidency and the Constitution (Washington, DC: Brookings Institution Press, 2008), 4. 47 Steven G. Calabresi and Christopher S. Yoo argue that the concept of the “unitary executive” dates back to the administration of George Washington, and has been applied in every subsequent presidency, in The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2008). They focus, however, on removal of executive branch appointees and direction of executive branch actions, not on foreign policy, and they explicitly note that “the classic vision of the unitary executive . . . had absolutely nothing to do with claims of implied, inherent presidential domestic and foreign policy power of the kind asserted by the [George W. Bush] administration” (p. 21). John Yoo, who served in the Department of Justice during President George W. Bush’s first term, makes the case for broad executive power in foreign affairs in The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005). For a critique of the “unitary executive” concept, see Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (Cambridge: Cambridge University Press, 2008).

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48 Shirley Anne Warshaw, The Co-presidency of Bush and Cheney (Palo Alto, CA: Stanford University Press, 2009). 49 The expansion of presidential power in the post-9/11 era as well as congressional and judicial reaction were examined in a November 4–5, 2009 symposium sponsored by Hofstra University School of Law, the Hofstra Cultural Center, and Hofstra’s Peter S. Kalikow Center for the Study of the American Presidency, titled “President or King? Evaluating the Expansion of Executive Power from Abraham Lincoln to George W. Bush.” For analyses of congressional and judicial reactions to executive decision making in foreign affairs before and after the 9/11 terrorist attacks, see Rebecca Curry, “Institutional Rivalries in Presidential War Powers Cases: A Political Perspective on the Jurisprudence” and Fisher, “Presidents Operating Under the Law,” in White House Studies 10, no. 1, forthcoming. 50 George W. Bush, “Address to a Joint Session of Congress and the American People,” Washington, DC, September 20, 2001. Transcript available at http://georgewbushwhitehouse.archives.gov/news/releases/2001/09/20010920-8.html 51 The creation of DHS is explained on the department’s website at http://www.dhs. gov/xabout/history/editorial_0133.shtm 52 The creation of the DNI’s office is described on its website at http://www.dni.gov/ who.htm. For an analysis of pre-9/11 difficulties with intelligence sharing and post9/11 efforts, see Zegart, Spying Blind: The CIA, the FBI, and the Origins of 9/11 (Princeton, NJ: Princeton University Press, 2007). 53 Barack Obama, “Announcement for President,” Springfield, IL, February 10, 2007. Available at http://www.barackobama.com/2007/02/10/remarks_of_senator_barack_ obam_11.php 54 Ibid. 55 Scholarly analyses of changes in policy between successive presidential administrations of different political parties include Bose, Shaping and Signaling Presidential Policy. Also see Valerie Bunce, Do New Leaders Make a Difference? Executive Succession and Public Policy Under Capitalism and Socialism (Princeton, NJ: Princeton University Press, 1981); Jeff Fishel, Presidents and Promises: From Campaign Pledge to Presidential Performance (Washington, DC: CQ Press, 1985); Paul C. Light, The President’s Agenda: Domestic Policy Choice from Kennedy to Reagan, 3rd ed. (Baltimore: The Johns Hopkins University Press, 1998). 56 See transcript of CNN/YouTube Democratic presidential debate, July 23, 2007, at http://www.cnn.com/2007/POLITICS/07/23/debate.transcript/ 57 All quotations from the inaugural address in this paragraph are attributed to: Barack Obama, “Inaugural Address,” Washington, DC, January 20, 2009. Available at http://www. whitehouse.gov/the_press_office/President_Barack_Obamas_Inaugural_Address/ 58 Barack Obama, “Address to Joint Session of Congress,” Washington, DC, February 24, 2009. Available at http://www.whitehouse.gov/the_press_office/Remarks-of-President-Barack-Obama-Address-to-Joint-Session-of-Congress/ 59 Barack Obama, “Remarks by the President on a New Beginning,” Cairo University, Egypt, June 4, 2009. Available at http://www.whitehouse.gov/ the_press_office/Remarks-by-the-President-at-Cairo-University-6-04-09/ 60 For comparisons to other recent presidents’ early travel, see Brendan J. Doherty, “POTUS on the Road: International and Domestic Presidential Travel,” Presidential Studies Quarterly 39, 2 (June 2009):322–346. 61 See Statement by Norwegian Nobel Committee, “The Nobel Peace Prize for 2009,” October 9, 2009, available at http://nobelprize.org/nobel_prizes/peace/laureates/2009/press.html 62 Scott Wilson, “Muted Response Reflects U.S. Diplomatic Dilemma,” The Washington Post, June 15, 2009. 63 Barack Obama, “Executive Order—Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities,” January 22, 2009. Available at http://www.whitehouse.gov/the_press_office/closureofguanta-

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64 65 66

67 68 69 70 71 72 73

74 75

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namodetentionfacilities/ See also Dan Eggen, Karen DeYoung, and Spencer S. Hsu, “Plane Suspect Was Listed in Terror Database After Father Alerted U.S. Officials,” The Washington Post, December 27, 2009. Clive Crook, “In Search of an Obama Doctrine,” The Atlantic, April 21, 2009. Available at http://clivecrook.theatlantic.com/archives/2009/04/in_search_of_an_obama_doctrine. php Quotation is from page 1 of the 2010 National Security Strategy, available at http:// www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf Max Boot, “The National Security Strategy of 2010. Or 2006. Whatever,” Commentary, May 28, 2010. Available at http://www.commentarymagazine.com/blogs/index. php/boot Boot is paraphrasing a critique by Council on Foreign Relations President Emeritus Leslie H. Gelb, available on The Daily Beast at http://www.thedailybeast. com/blogs-and-stories/2010-05-27/obama-presents-a-new-security-strategy/ Linda Feldmann, “Obama’s Team of Stars: Can He Manage It?” The Christian Science Monitor, December 3, 2008. “Team of Centrists; Barack Obama’s National Security Appointees Have Plenty in Common,” Editorial, The Washington Post, December 2, 2008. Gordon Lubold, “Obama’s National Security ‘Team of Rivals’,” The Christian Science Monitor, December 2, 2008. Doyle McManus, “Foreign Policy: Do Obama’s Globe Trotters Play?,” Los Angeles Times, July 26, 2009. Karen DeYoung, “National Security Structure Is Set: Under Obama, Council Will Grow,” The Washington Post, February 27, 2009, A3. Charlie Savage, “Obama’s Embrace of a Bush Tactic Riles Congress,” The New York Times, August 9, 2009. Barack Obama, “Memorandum for the Heads of Executive Departments and Agencies—Subject: Presidential Signing Statements,” White House Office of the Press Secretary, March 9, 2009. Available at http://www.whitehouse.gov/the_ press_office/Memorandum-on-Presidential-Signing-Statements/ A list of Obama’s signing statements is available from John Woolley and Gerhard Peters, “The American Presidency Project,” at http://www.presidency.ucsb.edu/ signingstatements.php Charlie Savage, “Obama’s Embrace of a Bush Tactic Riles Congress,” The New York Times, August 9, 2009.

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Index

Note: page numbers in italic refer to pages where there are illustrations or examples. Acheson, Dean 15 Adams, John 104 “The Administrative Presidency” (symposium) 120–1 administrative powers 139, 150, 159, 160 Administrative Procedure Act 174 Afghanistan 92, 187: Bush and 2, 33; Obama and 93, 160, 190; special envoys 89 African Americans: electoral nominees 38; federal judgeships 109 see also Obama, Barack Aid to Families with Dependent Children (AFDC) 168 Air Force One 58 Alito, Jr., Justice Samuel 28, 111, 113 Alter, Jonathan 176–7 American International Group (AIG) 49 American Political Science Association 14 Americorps 175 antiterrorism 17–18, 28, 92, 111–12, 187–8 approval ratings 62, 71, 72, 73, 74–6, 80 Army Corps of Engineers 141, 148 Article I 19, 83, 181–2 Article II 19, 93, 105, 111, 182, 183: Vesting Clause 20, 26, 27, 83, 151 Article III 111 Asian Americans 109 Authorization for Use of Military Force Against Iraq resolution 187 Authorization for Use of Military Force Against Terrorists (AUMF) 187 Barrett, Andrew 62 Baum, Lawrence 114 Berger, Raoul 16

Biden, Joe 33, 189 Binder, Sarah A. 105, 109 Bipartisan Campaign Reform Act (BCRA) (2002) 43, 48, 51, 112–13 bipartisanship 36, 43, 91; see also partisanship Birnbaum, Elizabeth 137 Biskupic, Joan 109 Black, Justice Hugo 13 Blackstone, Sir William 12 Blair, Tony 59 Bob Jones University v. U.S. 114 Bork, Robert 106, 109 Boumediene v. Bush 111, 112 Brace, Paul 74–5 Brennan, Justice William 108 Breyer, Justice Stephen 111 British Petroleum (BP) 129, 136–8, 148–9, 160 Brody, Richard A. 73 Bromwich, Michael 137 Brown, Jeremy 77 Brown v. Board of Education 16 Brownlow Committee 122–3, 156 Budget and Accounting Act (1921) 169 Budget, Bureau of (BoB) 156, 169, 170 Burger, Chief Justice Warren 110–11 Burke, John 169 Busch, Andrew E. 38, 41 Bush, George H.W. 5, 33, 58, 72, 166 Bush, George W. 2, 5, 14, 17–18, 20, 28, 45, 49: Afghanistan 2, 33; campaigns and elections 33–4, 43; The Courts 103, 104, 105, 109, 110, 111–12, 115; domestic policies 170–2; educational reform 171; executive power and 14, 17–18, 20, 28;

216

Index

Bush, George W. (cont.): foreign affairs and policies 92, 93, 187; healthcare reform 171; Hurricane Katrina 138, 159; immigration 177; interviews 58; Iraq 33, 45, 138, 187; majority seats in Congress 86; news coverage 61, 62, 63, 65; 9/11 attacks 138, 171, 187, 188; public opinion 72, 73, 74; signing statements 92, 95–6, 188, 192; social security reform tour 60, 62, 65; speeches 57; “War on Terror” 17–18, 28, 92, 111–12, 187–8; White House Office (WHO) 59, 124, 129 Bush v. Gore 103 Butler, Pierce 21 cabinet departments 140, 141, 181 cable news 4, 55, 65–70, 149 Calabresi, Steven 27 campaigns and elections: 2008 Election 43–5, 46, 47, 48–9, 50, 51; advertising 42–3; Bush 33–4, 43; candidate endorsements 48; candidate-driven era 34, 77; Carter 36, 37, 38; Clinton 33, 42; Congress and 36; delegate selection 34–6; electability 38; Electoral College 49, 50, 51, 80; fund-raising and spending 34, 36, 37, 41, 42, 43, 48–9, 51, 112–13; Iowa/New Hampshire 38–9, 40, 41, 44, 51; Johnson (LBJ) 35, 36, 77; Kennedy 36, 77; legislation and 35–6; media and 34, 36; Nixon 36, 72, 77; polling operations 76–80; primaries and caucuses 34, 35, 36, 46, 47, 149; Reagan 33; Republican Party and 33, 34, 35, 39, 46, 47; staffing 77–8; strategies and innovations 33–4, 36, 37–8; superdelegates 38, 45, 46, 48 candidate endorsements 48 Canes-Wrone, Brandice 75, 132 Cantril, Hadley 77 Carpenter, Dan 139, 150 Carter, Jimmy 59, 85, 86, 124: campaigns 36, 37, 38; signing statements 28 Case of Ship Money (1637) 12 Catholicism 34 caucuses see primaries and caucuses Central Intelligence Agency (CIA) 124, 138, 141, 181 Cheney, Dick 75 Chief of Staff 124, 128, 175

Chrysler 176 Church, Frank 91–2 Citizens United v. FEC 112–13 Civil Aeronautics Board 154 Civil Service Commission (CSC) 153, 156, 173 Civilian Conservation Corps (CCC) 168 Clean Air Act 169 climate change 177 Clinton, Bill 2, 5, 14: approval ratings 72, 76; campaigns 33, 42; communications and media 57, 58, 59; Congress and 85, 86, 173; The Courts 111, 115; domestic policies 170, 171; executive orders 174; foreign affairs and policies 187; health care reform 170; news coverage 61, 62, 63, 66 Clinton, Hillary Rodham 33, 45, 46, 48, 189 Clinton v. Jones 111 coalition of minorities 72 Cohen, David 128 Cohen, Jeffrey 61 Coke, Sir Edward 12 The Cold War 4, 5, 15, 91, 184–7 Commander in Chief Clause 2, 3, 22–6, 83, 182: war powers 18, 19, 180 Commentaries on English Law (Blackstone) 12 communications and media 54–5, 66–7: audience share 54; cable news and other media 4, 55, 65–70, 149; mediated President 61–5; presidential leadership of 55, 56, 61, 63–4, 65, 67; public presidency 56–9; White House and 56, 57, 58–60, 64, 65–7, 130 Communications, Office of 60 communism 4, 5, 15, 91, 180, 185 Congress: appointment process 87–90; campaigns and elections 36; domestic policies 85; foreign affairs and policies 84, 90–3, 96–7, 181, 188, 192; majority party seats 86; Obama and 85, 86, 89–90; polarization of 149–50; Presidential relations with 84–6, 173; public opinion 76; unilateral Presidential powers and 93–4, 95, 96; war powers and 23, 24, 182 Constitution 1, 3, 12–14, 28–9: Commander in Chief Clause 22–6; Executive Branch and 139, 151; foreign affairs and policies 18–20, 181–3; fundamental values 108, 180; nuclear era 15–16; Presidential powers and 14–18; public

Index involvement 80; Royal Prerogative and 12, 20; signing statements 27–8; Unitary Executive Theory 26–7; war powers and 20–22, 23, 24 Continental Congress 23 Cornwell, Elmer 74 Correspondence, Office of 130 Corwin, Edward S. 14, 83, 192 The Courts: Bush and 103, 104, 105, 109, 110, 111–12, 115; cases involving matters of interest to Presidents and Presidency 110–13, 115; foreign affairs and policies 181; intersections between Presidency and 105–6, 139; judicial activism/restraint 107–9; judicial selection process 90, 103, 105, 106–10; Obama and 109–10, 112–13, 115; Reagan and 111; Solicitors General and Presidency 113–16 see also Supreme Court Cronin, Thomas 17 Cuban Missile Crisis 16, 185–6 czars 89, 128–9 Daschle, Tom 175 Dean, Howard 48 debates, presidential 36 Declare War Clause 18 Deepwater Horizon oil spill 129, 136–8, 146–9, 159, 160, 177 Deering, Christopher 88 Defense, Department of (DoD) 140, 181, 185 DeIulio, John 172 delegate selection 34–6 DeMint, Jim 86 Democratic National Committee 35, 73–4, 77, 78 Democratic Party: bipartisan committees/ commissions 36, 43; campaigns and elections 33, 34, 35, 39, 45, 46, 47; executive orders 174; women and 73 Dickinson, Matthew 121 Director of National Intelligence (DNI) 188 Director of the Office of Personnel Management 131 District of Columbia v. Heller 112 “divided government” 84 Doherty, Brendan J. 190 Dole, Bob 33, 41, 42 domestic policies: approval ratings 73; Bush 170–2; Clinton and 170, 171; Congress and 85; czars 89; domestic agendas 170–3; Executive Branch

217

and 174–7; foreign affairs and policies and 92–3, 166–7, 174–7; “institutional domestic presidency” 169–70; Johnson (LBJ) 167, 168–9, 170; Kennedy 168, 170; news coverage 64; Nixon 169, 170; Obama and 54, 170, 174–7; prerogative powers 173–4; President’s role 167–9; Reagan 170; Roosevelt (FDR) 169–70, 174–5; “two presidencies” theory 90–3, 96, 166–7; Unitary Executive Theory and 26–7 see also foreign affairs and policies Domestic Policy Council (DPC) 170 Due Process Clause 107–8 Dukakis, Michael 41, 44 Economic Advisers, Council of 78 Economic Opportunity, Office of 169 The Economy 72, 85–6, 167, 176: New Deal 4, 103, 104, 155, 167–8 Education, Department of 140, 141 educational reform 171, 172 Edward M. Kennedy Serve America Act 175 Edwards, George 56, 66 Edwards III, George C. 6–7, 63, 64, 75, 76, 84 Eisenhower, Dwight 4, 21, 72, 77, 123, 185 Eisinger, Robert 77 electability of presidential candidates 38 elections see campaigns and elections Electoral College 49, 50, 51, 80 Ellsworth, Oliver 22 The Elusive Executive (King and Ragsdale) 7–8 Ely, John Hart 21 Emanuel, Rahm 124, 175 “enemy combatants” 92, 94, 187–8 Environmental Protection Agency (EPA) 141, 155, 169, 173 Ervin, Sam 16, 17 Estrada, Miguel 109 Ethics in Government Act (1978) 111 Executive Branch: Constitution and 139, 151; domestic policies and 174–7; employment figures 140; historical background 150–5, 181; Johnson (LBJ) and 157; management of 125, 126, 139, 155–9, 172–3; Nixon and 126; outsourcing to third parties 142, 143, 144, 145, 146–50, 160; overview 139– 42; perceived failures 136–9; presidential positions 158, 159; Roosevelt (FDR) and 155–7

218

Index

Executive Clerk, Office of 130 executive memoranda 84, 93, 96 Executive Office of the President (EOP) 120, 121, 123, 142, 156 executive orders 84, 93–4, 95, 174, 183, 190 executive powers 12–13, 16, 83: Bush 14, 17–18, 20, 28 Executive Schedule 142 Faith-based and Neighbourhood Partnerships, Office of 89, 95, 172 Farnsworth, Stephen J. 62 Federal Bureau of Investigation (FBI) 138 Federal Communications Commission 154 Federal Election Campaign Act (FECA) (1971) 36, 41, 42, 51 Federal Election Commission (FEC) 36, 42 Federal Emergency Management Agency (FEMA) 138, 159 Federal Register 143, 146 Federal Reserve 167, 176 Federalist Papers (Hamilton): appointment process 87; Commander in Chief Clause 24, 182; The Courts 104; Executive Branch 138–9, 159, 161; Unitary Executive Theory 26; war powers 20, 21, 22 Fein, Bruce 26 Feinberg, Kenneth 129 first 100 days: majority party seats 85, 86; Obama 76, 89, 90; political appointments 127, 172–3; presidential addresses 94, 95 First Lady 122 Fisher, Louis 16, 21, 26, 27, 97, 182 Florida 44, 46, 49 follower presidency 74–5, 78 Ford Foundation 5 Ford, Gerald 27, 36, 57, 86, 91–2, 124 foreign affairs and policies: approval ratings 73; Bush and 92, 93, 187; Clinton and 187; The Cold War 4, 5, 15, 91, 184–7; Congress and 84, 90–3, 96–7, 181, 188, 192; The Constitution and 18–20, 181–3; The Courts 181; czars 89; domestic policies and 92–3, 166–7, 174–7; news coverage 63–4; Obama 21, 63, 189–92, 193; post-Cold War to post-9/11 world 186–8; Presidental power 17–18, 183–4; Reagan 186–7; Roosevelt (FDR) 184 see also domestic policies

Foreign Intelligence Surveillance Act 91 Fraser, Donald 35 “frontloading” 40, 44, 51 fund-raising and spending 34, 36, 37, 41, 42, 43, 48–9, 51, 112–13 Gallup 72, 73 Garfield, James 153 Gaza 95 Geithner, Tim 176 General Motors 176 General Services Administration (GSA) 141 Generalized System of Preferences 94 George, Alexander 185 Gerry, Elbridge 21, 182 Gibbs, Robert 80 Gilmour, Robert 142 Ginsburg, Justice Ruth Bader 111 Glass-Steagal Act 167 “going local” 60, 62, 64–5 Going Public (Kernell) 74, 75 Goldman, Sheldon 90, 109, 110 Gonzales, Alberto 22, 25 Gore, Al 41, 43, 72, 103 Government Accountability Office (GAO) 137 A Government of Strangers (Heclo) 159 Graber, Doris 61 Great Depression 14, 72, 103, 167, 168, 175 Griswold v. Connecticut 108 Guantanamo Bay 92, 95, 190–1 gun rights 112 Hamdan 111, 112 Hamdi v. Rumsfeld 112 Hamilton, Alexander (Federalist Papers): appointment process 87; Commander in Chief Clause 24, 182; The Courts 104; Executive Branch 138–9, 159, 161; Unitary Executive Theory 26; war powers 20, 21, 22 Han, Lori Cox 61 Harding, Warren 34 Hargrove, Erwin 8 Harris, Fred 35 Hart, Gary 39 health care reform: Bush 171; Clinton 170; Obama 54, 55, 74, 79, 80, 86, 170, 173, 176 Heclo, Hugh 5–6, 139, 146, 159 Henkin, Louis 24, 182–3 Herman, Alexis 44

Index Hinckley, Barbara 74–5 Hispanics 109 Holbrooke, Richard C. 89, 191 Homeland Security Act (2002) 188 Homeland Security, Department of (DHS) 124, 140, 141, 159, 188 Hughes, Chief Justice Charles Evan 104 Hult, Karen 130 Humphrey, Hubert 35 Humphrey’s Executor v. United States 154 Hunt, James 38 Huq, Aziz 21, 25 Hurja, Emil 77 Hurricane Katrina 138, 159 immigration 177 impeachment 14, 18, 28, 111 The Imperial Presidency (Schlesinger) 17 inauguration 1, 173 INS v. Chadha 27 institutional approach to studying the Presidency 7 intelligence agencies 89, 91–2, 124, 188: Central Intelligence Agency (CIA) 138, 141, 181 Interior, Department of 140, 141 Intermediate-Range Nuclear Forces (INF) Treaty 186 International Monetary Fund 180, 184, 192 internet 58, 65–6 Interstate Commerce Commission (ICC) 153–4 interviews (press) 58 Iowa 38–9, 40–1, 44, 51 Iran 14, 93, 187, 189, 190 Iraq: Bush 33, 45, 138, 187; Obama 2, 92, 93, 189, 190; news coverage 62 Iredell, James 13 iron triangle model 147, 148, 149 isolationists 91 Jackson, Andrew 3, 152 Jackson, Jesse 41, 44 Jackson, Justice Robert H. 29 James I, King of England 12 Jefferson, Thomas 3 Johnson, Lyndon: campaigns 35, 36, 77; domestic policies 167, 168–9, 170; Executive Branch 157; Vietnam 4, 16, 157; 186 Joint Chiefs of Staff (JCS) 181 Jones, Charles 83 journalists and reporters 58, 60, 61 judicial activism/restraint 107–9

219

judicial selection process 90, 103, 105, 106–10 Kagan, Elena 109, 115 Kamarck, Elaine 37 Keep Commission 156 Kennan, George F. 185 Kennedy, John F.: campaigns 36, 77; Catholicism 34; Cuban Missile Crisis 16, 185–6; domestic policies 168, 170; media 4 Kennedy, Robert 35 Kennedy, Ted 38, 67 Kernell, Samuel 56, 74, 75 Kerry, John 43, 173 King, Gary 7–8 Kissinger, Henry 131 Koenig, Louis W. 3, 4–5 Korean War 21, 181, 184 Krause, George 131–2 Kumar, Martha Joynt 59 Kurland, Philip 17 Labor, Bureau of 140, 141 Latinos 38, 49 League of Women Voters 36, 43 Legislative Affairs, Office of 172, 175 Lehman Brothers 49 Lev, Daniel 27 Lewis, David 127, 150, 159 Lewis, John 48 Lewis-Beck, Michael S. 41 Libby, Lewis “Scooter” 124 Lichter, S. Robert 62 Light, Paul 8, 127, 146, 157, 156, 178 Lincoln, Abraham 3, 14 Lindsey, Lawrence 172 Little v. Barreme 24 local newspapers 60, 62, 64–5 Lofgren, Charles 16 Lowi, Theodore 17 McCain, John 33, 43, 44, 45, 48, 49 McCurry, Mike 59 McDonald v. City of Chicago 112 McGovern, George 35 Mackenzie, G. Calvin 87 Madison, James 20: presidential power 13, 14, 182, 183; war powers 21, 22, 23, 24 Maltzman, Forrest 105, 109 Management and Budget, Office of (OMB) 142, 170, 173, 176 Marbury v. Madison (1803) 13, 27, 104

220

Index

Marine One 58 Maritime Commission 154 Marshall, Chief Justice John 13, 104 Marshall Plan 180, 185 Mayer, Kenneth R. 9 Mayer, William G. 38, 41 media: cable news 55, 65–70, 149; campaigns and elections 34, 36; journalists and reporters 58, 60, 61; local newspapers 60, 62, 64–5; “narrowcasting” 149; news networks 58, 62; soft-news programs; television 4 media affair consultants 58–9, 60 Medicare 168, 171 Meese, Edwin 26 Michigan 44, 46 Mineral Management Service (MMS) see Ocean Energy Management, Regulation and Enforcement, Bureau of Mitchell, George J. 191 Model Cities 168–9 modern presidency 4 Moe, Terry 125, 126 monarchism 19, 22, 25, 28 Mondale, Walter 39 Monroe Doctrine 183, 184 Monroe, James 27, 183 Morrison v. Olson 27, 111 Mueller, John 72 multiple advocacy 185 Myers v. United States 154 Nathan, Richard 87 National Addresses 54, 56, 57, 58, 63, 66 National Aeronautic and Space Administration (NASA) 155 National Economic Council (NEC) 170, 176 National Labor Relations Board (NLRB) 154 National Security Act (1947) 181, 185 National Security Advisor 131, 181, 186 National Security Council (NSC) 181, 191 National Security Strategies 20, 171, 185, 187, 191 Natural Resource Revenue, Office of 137 NBC Nightly News 55 Nebraska 49 Nelson, Ben 65 Nemacheck, Christine 87–8 Neustadt, Richard 83, 93, 125: “power to persuade” 67; Presidential Power 6, 7, 15–16, 180–1; on public opinion 74, 75 Neutrality Proclamation (1793) 183 Nevada 44

New Deal 4, 103, 104, 155, 167–8 New Hampshire 38–9, 40–1, 44, 51 “new institutionalism” 7, 91 The New York Times 64, 86 news coverage: Bush 61, 62, 63, 65; Clinton 61, 62, 63, 66; domestic policies 64; foreign affairs and policies 63–4; Iraq 62; Obama 62–3, 113 The News Hour 71 news networks 58, 62 9/11 attacks 2, 28, 90, 138, 141, 187–8 Nixon, Richard 56, 63: campaigns 36, 72, 77; domestic policies 169, 170; Executive Branch 126; majority party seats in Congress 86; presidential powers 16; Watergate scandal 4, 14, 17, 92, 110–11, 124; White House Office (WHO) 123–4, 129, 131, 157 No Child Left Behind Law 171 Norrander, Barbara 40 North Atlantic Treaty Organization (NATO) 180, 185, 190 North Carolina 49 North Korea 186, 190 nuclear era 15 oath of office 1 Obama, Barack 2, 5, 28, 67: Afghanistan 93, 160, 190; campaign and election 33, 34, 45, 46, 48, 49, 51, 65–6; climate change 177; Congress and 85, 86, 89–90; The Courts 109–10, 112–13, 115; Deepwater Horizon oil spill 137–8, 148–9, 159, 160, 177; domestic policies 54, 170, 174–7; The Economy 85–6; foreign affairs and policies 21, 63, 189–92, 193; Guantanamo Bay 92; health care reform 54, 55, 74, 79, 80, 86, 170, 173, 176; immigration 177; inauguration 1; interviews 58; Iraq 2, 92, 93, 189, 190; National Addresses 54, 58; news coverage 62–3, 113; Nobel Peace Prize (2009) 190; polling operation 78–9, 80; public opinion 71, 72, 73, 74, 76, 80; signing statements 96, 192; unilateral executive power 95; White House Office (WHO) 124, 127, 129, 175 Ocean Energy Management, Regulation and Enforcement, Bureau of (formally Mineral Management Service (MMS)) 136–8, 141, 146–8, 159, 160 O’Connor, Sarah Day 111 Ohio 49

Index oil industry 129, 136–8, 146–8, 159, 160, 177 opinion polls 71 “Out of Iraq” Caucus 93 outsourcing to third parties 142, 143, 144, 145 Pakistan 89, 189 Palin, Sarah 33 partisanship 1, 2, 74, 84; see also bipartisanship party activists 51 Party Structure and Delegation Selection, Commission on 35 Paterson, Justice William 24, 25 Patterson, Bradley 122, 124–5, 129 Patterson, Thomas E. 62 Paul, Ron 48 Paulson, Henry 176 pay discrimination 95 Peake, Jeffrey 62, 64 Pendleton Act (1883) 153 Pennsylvania 49 Perry v. Schwarzenegger 112 Persian Gulf War (1991) 187 Personnel Management, Office of (OPM) 131 Peterson, Mark 76, 83, 84–5 Pfiffner, James 19, 22, 25 Pious, Richard 14, 16 Plouffe, David 79 policy addresses and speeches 57, 64 Policy Development, Office of (OPD) 170 Political Communication 63 Politico 78, 80 polling operations 76–80 popular vote 72 postmodern presidency 4–5 powers (presidential): administrative 139, 150, 159, 160; The Cold War 15; The Constitution and 14–18; evolution of 1, 183–4; executive 12–14, 17–18, 20, 28, 83; foreign affairs and policies 183–4; Neustadian approach 6, 15–16, 67, 74, 93; prerogative powers 12, 173–4; unilateral 19, 20, 21, 84, 93–4 95, 96, 188; war powers 2, 16, 17–18, 19, 20– 22, 23, 24, 91, 180, 181–2, 186 prerogative power 12, 173–4 The Presidency of the United States (Woodward) 5 The President: communications and media 61–5; individuality of 8;

221

“institutional domestic presidency” 169– 70; intersections between The Courts and 105–6, 139; legal cases involving matters of interest to 110–13, 115; relations with Congress 84–6, 173; role in domestic policies 167–9 president-centred model 6, 87 presidential addresses and speeches 54, 55, 56, 57, 58, 63, 64 presidential appointments with Senate confirmation (PAS) 158 Presidential Debates, Commission on 36, 43 presidential eras 3–5 Presidential Leadership of Public Opinion (Cornwell) 74 Presidential Nomination Timing and Scheduling, Commission on 44 Presidential Power (Neustadt) 6, 7, 15–16, 180–1 presidential selection see campaigns and elections Presidential Studies Quarterly 8–9, 26, 120–1 press conferences 58–9, 137 Press Office 60, 130 Press Secretary 130 Price, David 44 primaries and caucuses 34, 35, 36, 46, 47, 149: Iowa/New Hampshire 38–9, 40, 41, 44, 51 proclamations 84, 93, 94 Project for Excellence in Journalism 55 public fundraisers 57 public matching fund system 48 public opinion: approval ratings 62, 71, 72, 73, 74–6, 80; Congress 76; evaluating the Presidency 71–4; Neustadt on 74, 75; polling operation 76–80; presidential agendas 171–2 Public Works Administration (PWA) 167–8 Pyle, Christopher 14 radio addresses 58 Ragsdale, Lyn 7–8 Ramsey, Michael 25 Rasul v. Bush 112 Reagan, Ronald 5, 33, 86: communications and media 56, 57, 58, 63; The Courts 111; domestic policies 170; executive power 26, 28; foreign affairs and policies 186–7; Iran 14; public opinion 72, 73, 79; White House Office (WHO) 124

222

Index

Records Management, Office of 130 Regan, Donald 124 Rehnquist, Chief Justice William 111 Republican National Committee (RNC) 35, 48–9 Republican Party 19, 20: bipartisan committees/commission 36, 43; campaigns and elections 33, 34, 35, 39, 46, 47; executive orders 174 revisionists 91 Richardson, Bill 175 Roberts, Chief Justice John Roberts 111 Roberts, Justice Owen 104 Rockman, Bert 56 Roe v. Wade 108 Rogers, Desiree 124 Roosevelt Corollary to the Monroe Doctrine 184 Roosevelt, Franklin D. 4, 77, 103, 104, 129, 154: domestic policies 169–70, 174–5; Executive Branch 155–7; foreign affairs and policies 184; New Deal 4, 103, 104, 155, 167–8 Roosevelt, Theodore 4, 156, 167, 184 Ross, Dennis 191 Rossiter, Clinton 180 Royal Prerogative 12, 20 Rudalevige, Andrew 126, 132 Safety and Environmental Enforcement, Bureau of 137 Salazar, Ken 137, 141, 147 same-sex marriages 112 Savage, Charlie 28 Scalia, Justice Antonin 107, 111 “Schedule C” appointments 131, 159 Schlesinger, Jr., Arthur 17, 186 Schwarz, Jr., Frederick 21, 25 Securities and Exchange Commission (SEC) 154, 167 security advisors 131, 181, 186 Seidman, Harold 142, 153 Senate Judiciary Committee 90 Senate Select Committee to Investigate the Intelligence Agencies of the United States (“Church Committee”) 91 Senior Executive Service (SES) 158 Sherman, Roger 22 Shull, Steven 56 signing statements 27–8, 92, 95–6, 188, 192 Smith, Ben 78, 80 social security 60, 62, 65 Social Security Act (1935) 168

“soft money” 42–3 soft-news programs 61 Solicitors General 106, 113–16 Sotomayor, Sonia 109 Souter, David 105 South Carolina 44 Soviet Union 186 Spanish-American War (1898) 183 Specter, Arlen 92 speeches 54, 55, 56, 57, 63, 64 speechwriters 58, 59 Spellings, Margaret 172 Spitzer, Robert 27 Squire, Peverill 41 Staff Secretary 129–30 state governors 3 State of the Union Address 63, 66 Steel Seizure Case 16, 29 Strategic Defense Initiative (SDI) (Star Wars) 79–80 studying the Presidency 1–3, 9–10: administrative studies 120–1, 132; presidential eras 3–5; recent research trends and future directions 131–2; theories and methodologies 5–9, 85 Studying the Presidency (Edwards and Wayne) 6–7 Sullivan, Terry 121–2 “Super Tuesday” 41, 45 superdelegates 38, 45, 46, 48 Supremacy Clause 20 Supreme Court 13, 51: appointments 87– 8, 90, 105; campaigns 51; foreign affairs and policies 188; “politicizing” of 103– 4, 109; presidential power 16, 23–4, 93 Take Care Clause 13, 25, 26, 27, 28 Technical Board on Economic Security 168 techopols 148 Tennessee Valley Authority (TVA) 168 Tenpas, Kathryn Dunn 130 terrorism 17–18, 28, 92, 111–12, 187–8 text messaging 95 “Torture Memos” 17 traditional presidency 3–4 Treasury 140, 176 Treaty of Versailles 184 Troubled Assets Relief Program (TARP) 176 Truman, Harry 4, 14, 16, 77, 123, 185: Korea 21, 186 Tulis, Jeffrey 56 “two presidencies” theory 90–3, 96, 166–7

Index Unitary Executive Theory 26–7 United Nations 184 United States Emergency Refuge and Migration Assistance Fund 95 United States v. Smith 24 U.S. v. Nixon 111 USA Patriot Act 188 Van Buren, Martin 152–3 Vesting Clause 20, 26, 27, 83, 151 veto challenges 84 Vice-President 33, 122, 124, 181, 188, 189 Vietnam War 24, 91, 181, 184: Johnson (LBJ) 4, 16, 186 Virginia 49 Wallace, Lawrence 114 Wanta, Wayne 63 War on Poverty 168–9 war powers 2: Commander in Chief Clause and 18, 19, 24, 180, 182; Congress and 23, 24, 91, 181–2, 186; The Constitution and 20–22, 23, 24; executive unilateralism and 15, 16, 17–18 War Powers Resolution Act (WPR) (1973) 91, 186 “War on Terror” 17–18, 28, 92, 111–12, 187–8 Washington, George 3, 14, 23, 183 The Washington Post 62, 64 Watergate scandal 4, 14, 17, 92, 110–11, 124 Waterman, Richard 88 Watt, James 136 Wayne, Stephen J. 6–7

223

West Coast Hotel v. Parrish 104 White House Counsel 130–1 White House Office (WHO) 5: appointments 131, 172–3, 175; campaign staff 77–8; centralization of 125–6; communications and media 56, 57, 58–60, 64, 65–7; expansion of 123–5, 157, 158; function of staff 121–2; historical dynamics of staff 122–7; institutionalization of 123; key personnel 128–31; Nixon and 123– 4, 129, 131, 157; Obama and 124, 127, 129, 175; politicization of 126–7; Reagan and 124 White House Transition Project 121 Wildavsky, Aaron 90, 166, 167 Williams, Brian 55 Wilson, James Q. 151 Wilson, Joe 54, 55 Wilson, Woodrow 4, 91, 129, 167, 184 “winnowing” 40, 44 women; approval ratings and 73; electoral nominees 33, 38; federal judgeships 109; right to personal privacy 108 Wood, B. Dan 63, 64 Woodward, Augustus B. 5 Works Progress Administration (WPA) 168 World Bank 180, 184, 192 Wormuth, Francis D. 16 writ of habeas corpus 187–8 Yoo, John 17, 18, 19, 20–1, 22, 25 “Your Weekly Address” 58 YouTube 66