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Chapter One

Bureaucracy, Democracy, and Legitimacy

There is a famous story of President Abraham Lincoln, taking a vote in a cabinet meeting on whether to sign the Emancipation Proclamation. All his cabinet secretaries vote nay, whereupon Lincoln raises his right hand and declares: “The ayes have it!”

The story is apocryphal, but it well captures the truth of Lincoln’s relations with his cabinet. That cabinet included supremely ambitious men, substantial political figures in their own right, several of whom had sought the presidency in 1860 and remained convinced that they,
not the country lawyer from Illinois, should be sitting in his chair. Yet Lincoln came to dominate this “team of rivals” and seized the responsibility
that was inescapably his.

Such a story brings a smile when the president under discussion is the most revered political leader in the history of the republic. But our modern political culture and sensibility are more ambivalent. When less revered presidents make controversial decisions, what do we really believe about presidential authority? How do we feel, for example, about Richard Nixon overruling the dissent of both his secretary of state and his secretary of defense to order military escalations that he thought essential to prosecute the Vietnam War? What do we think of Ronald Reagan pursuing what he thought was a strategic opening with Iran, over the objection of his chief cabinet officers? With respect to the very public anguish of Secretary of State Colin Powell and his State Department over George W. Bush’s decisions on Iraq, do we identify with Bush or with Powell? How often do we read in the press about White House “interference” in the work of experts in the departments and agencies, and complaints that their work is being “politicized”? One part of our brain seems to side with the permanent government. In the age of the whistle-blower, what do we really think about a president’s authority to decide and carry out policies with which subordinates disagree?

The answer should not depend simply on one’s own policy or partisan preferences. There ought to be neutral principles, not only to guide the public discourse but also to guide presidents. The modern trend, especially since the United States emerged from World War II as a global power, has been to expand the White House staff and institutions like the National Security Council (NSC) precisely to enable more centralized control, or at least better central coordination, over an expanding policy community. That policy community includes traditional cabinet departments with an international role (State, Defense, Treasury), other institutions (the Central Intelligence Agency, the uniformed military, and agencies in charge of trade and foreign aid policy), and departments and agencies only recently playing an important role in foreign policy (the departments of Justice and Homeland Security, the Federal Bureau of Investigation, and the Drug Enforcement Administration). But like a law of physics, presidential efforts to strengthen control over this expanding community only stimulate the countertrends that are at work—powerful centrifugal forces in Congress, in the media, and in the Executive Branch itself.

The subject of this book is not the question of presidential prerogative vis-à-vis Congress. Library shelves are already filled with books on the two “co-equal” branches, and especially the ancient debate over war powers. The issue here is presidential control over the Executive Branch.

Congress’s role, however, is an enormously important factor. As scholar Richard Neustadt has expressed it, the Constitutional Convention of 1787 did not, as commonly thought, create a system of separated powers. “Rather, it created a government of separated institutions sharing powers.” Presidents undoubtedly have more freedom of action in the national security realm than in making domestic policy. Nonetheless, cabinet secretaries and their departments have obligations to Congress by statute; they are beholden to Congress for the final disposition of their budgets and their testimony is a duty. Cabinet secretaries are thus inevitably responsive, at least in part, to Congress as well as to the president. But that only restates the problem.

Neustadt recounts that President Harry Truman in 1952, contemplating the possibility that Dwight Eisenhower would be elected to succeed him, predicted that the eminent general would have problems adjusting: “ ‘He’ll sit here,’ Truman would remark (tapping his desk for emphasis), ‘and he’ll say, “Do this! Do that!” And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.’ ” Truman’s own experience was: “I sit here all day trying to persuade people to do the things they ought to have sense enough to do without my persuading them. . . . That’s all the powers of the President amount to.”

That was Neustadt’s analysis as well. His answer was to counsel presidents and would-be presidents on how to maximize their power to persuade. His classic book Presidential Power, first published in 1960, explained that a president’s success depended on expanding and husbanding his personal political leverage and prestige, his mastery of tools of influence that convince his subordinates that what the president wants them to do comports with their own personal and bureaucratic interests. Neustadt graded presidents according to their “power sense”—their instinct for maintaining their personal political power; he thought Franklin Roosevelt and Harry Truman had this “power sense,” but Eisenhower did not. His book was seized upon by the new administration of John F. Kennedy as a primer on how to strengthen presidential control. However, the centrifugal forces have only strengthened since then—to the point where Neustadt, in an edition of his book twenty years later, felt compelled to go out of his way to debunk the notion of the “imperial presidency” that had become fashionable in some circles in the interim. As late as 1990, even after the Reagan presidency, Neustadt was still preoccupied with what he saw as the weakness of the office: “Weakness is still what I see: weakness in the sense of a great gap between what is expected of a man (or someday a woman) and assured capacity to carry through.” Part of this weakness resides in the expansion of the modern bureaucracy and the increasing difficulty of a single individual’s asserting systematic control over it.


Concepts of Legitimacy

Our Constitution, on the face of it, seems unambiguous about who is in charge of the Executive Branch: “The executive power shall be vested in
a President of the United States of America” (Article II, section 1). But, as usual, a closer reading of our founding document reveals a more
complex picture. Passages in section 2 of the same Article II refer specifically to the “executive departments” and to Congress’s power to authorize the heads of those departments to appoint subordinates. The president’s authority over the civilian establishment is less explicit than his authority as commander in chief of the armed forces. The renowned constitutional scholar Edward S. Corwin concluded that the phrase “executive power” is a “term of uncertain content.” While the United States may have a cabinet, we do not have a cabinet system, which is what the British have. The cabinet at Westminster is “the government”—the body of ministers (what we would call cabinet secretaries) headed by the prime minister, who is in theory only the “first among equals.” This institution evolved in the seventeenth and eighteenth centuries as the leadership of the Parliament, which extracted from the monarch the right to form his government. In parallel it became the leadership body of the political party that held the parliamentary majority. As such it embodied the distinctive characteristic of parliamentary government—what British scholar Walter Bagehot called the “nearly complete fusion” of the executive and legislative powers.

An important element of this system is the theory of the cabinet’s collective responsibility. Certainly the personal role and power of the prime minister have grown considerably over the last century and a half, and many would argue that prime ministerial government has eclipsed the cabinet. But there are occasional reminders that the system has nowhere near evolved into presidential-style government. When Winston Churchill assumed office during the great crisis of May 1940, in the first three weeks he was nearly outvoted in the war cabinet by a faction that wanted to pursue a negotiation with Hitler. Even more recent prime ministers who have achieved extraordinary political dominance have discovered that, when political fortunes ebb, the party asserts its collective will. Just ask Margaret Thatcher and Tony Blair. There have been a few attempts in the United States over the years to limit presidential authority in a manner suggestive of British cabinetstyle arrangements, but they were short-lived exceptions that prove the rule:


• John Quincy Adams took a vote at a cabinet meeting on at least one occasion and bowed to the majority when he was outvoted. But Adams, chosen as president in 1824 by the House of Representatives after not receiving even a plurality of either the electoral or popular vote, was one of our weakest presidents. Among other things, he adamantly refused to consider party affiliation when making government appointments. For “power sense,” Professor Neustadt would have graded him an F.

• When the National Security Council was created in 1947, there were those who saw it as a way of pressing presidents to make decisions in a more collegial framework. The British system was viewed as a model. This was a reaction to FDR’s freewheeling management style and to doubts whether Harry Truman was up to the job. As we shall see, Truman, acutely sensitive to any challenge to his constitutional prerogative, eluded the trap.

• When Richard Nixon was engulfed by the Watergate scandal, one of the arguments he used in his defense was that removal from officebefore the end of his term would alter our political system in the direction of a parliamentary system, eroding a crucial pillar of the president’s constitutional independence. The argument did not convince. When his political support finally collapsed in early August 1974, it was a delegation of senior Republican Party leaders who came to see him; they could not force him to resign, but only seek to persuade him that resignation was best for the country and for the party. This he agreed to.

• An implication that the top man might not be fully up to the job may have played a role in the 1980 discussions about Ronald Reagan’s taking on ex-President Gerald Ford as his running mate, with Henry Kissinger slated once again to be secretary of state. Reagan and Ford permitted their close advisers to hold a series of secret meetings at the Republican National Convention on this idea—which some dubbed a “co-presidency”—before the two principals agreed to drop it.


Our constitutional structure thus seems strong enough to withstand attempts to turn it into something it isn’t. If one source of presidential authority is constitutional legitimacy, a second is democratic legitimacy.

Our political system puts itself through great convulsions every four years to elect a president (though it seems more and more a never-ending process). Presumably we do this on the premise that something important is at stake in the election, namely the authority to determine the direction of national policy for the next four years. It is generally assumed that we are choosing the individual we want to set the policies that the Executive Branch will carry out. That is what the phrase “popular mandate” refers to. Democratic legitimacy is also democratic accountability. This calls to mind another major difference from the British system, and indeed from European and most other systems. An American president today has around three thousand so-called political appointments to make to key positions in the government, several layers down into the bureaucratic machinery. These include not only cabinet secretaries, but deputy secretaries, under secretaries, and assistant secretaries. These several layers give the president a considerable ability to put his or her political stamp on the policies that will emerge from this machinery. When a new president enters office, especially if a change of political party is involved, the turnover is huge and the transition tumultuous.

Both political parties in this country have cadres of people to bring into government with the advent of a new administration. They come from private business, the academic and policy think tank community, and congressional staffs, and thus have a claim to professionalism as well as to responsiveness to the elected president’s philosophy. Many who enter at senior positions have served at lower levels in prior administrations of the same party, and thus come with experience as well.

Britain, and most other countries, have nothing resembling this. The permanent civil service populates ministries up to much higher levels of the government. Even when a general election sweeps a new party into office, the incoming political leadership consists of cabinet ministers, a few other members of Parliament who serve as junior ministers in each department, and a handful of other assistants—perhaps 100 to 120, all together, in Britain. The rest are civil servants whom they meet when they arrive. Even in the prime minister’s office, the cabinet tradition severely constrains a new prime minister’s freedom to bring in more than a few personal advisers in any field.

One advantage of this system is continuity. When an election brings a change of leadership, the new political team, small as it is, is easily in place in a matter of days. The principle is that the civil servants shift their loyalties immediately to the new leaders and in the most professional manner help them implement whatever changes of policy are directed. The disadvantage is that the permanent government may not be as amenable to effective political control as the theory holds.