Agencies by Presidential
Design
January 1, 2000
William Howell
University of Wisconsin-Madison
David Lewis
College of William and Mary
Abstract
Scholars
have largely ignored one of the most important ways in which presidents
influence the administrative state in the modern era, that is, by creating
administrative agencies through executive action.Because
they can act unilaterally, presidents alter the kinds of administrative
agencies that are created and the control they wield over them.We
analyze the 425 agencies established between 1946-1995 and find that agencies
created by administrative action are significantly less insulated from
presidential control than are agencies created through legislation.We
also find that the ease of congressional legislative action is a significant
predictor of the number of agencies created by executive action.We
conclude that the very institutional factors that make it harder for Congress
to legislate provide presidents new opportunities to create administrative
agencies on their own, and to design them in ways that maximizes executive
control.
The
administrative state is the nexus of public policy making in the modern
era.While Congress writes the laws,
administrative agencies do the work of translating vague and often conflicting
legislative provisions into concrete public policy.To
understand what the federal government does, one must understand the bureaucracy
– which agencies constitute it, how these agencies are structured, and
who controls them.
Until recently, the literature on the federal bureaucracy proceeded under the assumption that Congress created all administrative agencies, or at least directed their creation through delegation and oversight.The congressional dominance literature, which represents the most developed and sophisticated body of work in political science on bureaucratic oversight, forcefully argues that Congress retains final say over which agencies are created, what functions they serve, and how they are designed (Bawn 1995, 1997; Epstein and O’Halloran 1994, 1996, 1999; Fiorina 1986; Horn 1995; Macey 1992; McCubbins 1985; McCubbins, Noll, and Weingast 1987, 1989).
Recently,
however, renewed interest has been directed toward presidents and the influence
they wield over the federal bureaucracy.In
particular, scholars have begun to consider how presidents appoint and
remove employees, reorganize the bureaucracy, and manipulate budgets to
augment their control over agencies within it (Clayton 1992; Moe 1982;
Snyder and Weingast 1994; Stewart and Cromartie 1982; Waterman 1989; Wood
and Waterman 1991; Wood and Anderson 1993).
Presidency
scholars, however, have yet to investigate one of the most important ways
in which modern presidents influence the administrative state, that is,
by creating administrative agencies through executive action.Since
the end of World War II, presidents have unilaterally created over half
of all administrative agencies in the United States.Using
executive orders, department orders, and reorganization plans, presidents
have established administrative agencies that would never have been created
through legislative action; and almost always, presidents design these
agencies in ways that maximize their control over them.
We
analyze the 425 administrative agencies established between 1946 and 1995.We
find that presidents exercise significantly more control over those agencies
that they create through a unilateral directive than those agencies that
Congress and the president establish through legislation.We
also find that congressional strength is inversely related to unilateral
activity.When Congress is strong
(defined by the relative cohesion of its members’ preferences), presidents
create fewer administrative agencies; and when Congress is weak, they create
more.These findings suggest that
the very institutional factors that undermine Congress augment presidential
influence and control.
The
paper is divided into six sections.The
first section briefly reviews the existing literature on presidential oversight
of the bureaucracy.The second section
shows that agencies created by administrative action are much less insulated
from political manipulation than agencies created by legislation—thereby
greatly expanding the president’s control over them.The
third section examines how Congress uses its budgetary powers to restrict
the president’s freedom to unilaterally create administrative agencies.The
fourth section specifies when presidents will create administrative agencies
on their own.Then, using quantitative
data collected on agencies created in the United States between 1946 and
1995, the fifth section tests the proposition that unilateral activity
increases as Congress’s capacity to legislate decreases, and vice versa.The
final section then concludes.
I. The Focus of the Administrative Presidency Literature
This research, however, has proceeded without recognizing that prior to any appointment, budget proposal, or outlay of funds, the president has a tremendous amount of say over which agencies are created and how these agencies are designed (Moe 1989; Moe and Wilson 1994; Zegart 1999; McCarty 1999).While much of this influence comes through his position as party leader and the power to veto legislation, presidents also hold a trump card that most scholars have overlooked.When they cannot convince Congress to build an administrative agency that they want, presidents can, and often do, strike out on their own.
Rather than haggle with Congress over the particular design of an individual agency, presidents often can act independently, build the agency they themselves prefer, and then leave it up to Congress to respond.By overlooking the president’s capacity to create administrative agencies on his own, the existing literature on the administrative presidency (and bureaucratic oversight generally) underestimates the power of the presidency and distorts the underlying politics of agency design.For as we shall soon see, the power to act unilaterally lends presidents significant influence over the kinds of agencies that are created and the structures that are imposed upon them.
II. How Presidents Use their Unilateral Powers to Influence the Bureaucracy
Until
1983, when the Supreme Court struck down the legislative veto,[2]
Congress frequently gave presidents and their subordinates reorganization
authority (Fisher 1998).Typically,
presidents submitted reorganization proposals to Congress, and unless Congress
took positive steps to alter or negate them, the proposals automatically
took effect after a specified period of time.While
certainly a weaker form of unilateral activity (rather than having to enact
new legislation to overturn a reorganization plan, Congress needed only
to pass a one-house veto, a two-house veto, or a joint resolution), reorganization
plans nonetheless granted presidents important discretion over the design
of administrative agencies.These
plans, for example, created the Department of Health, Education and Welfare,
the Environmental Protection Agency, the Drug Enforcement Agency, and the
Federal Emergency Management Agency.
A Different Kind of Federal Agency
Agencies
created by administrative action are generally smaller than agencies created
through legislation.In 1992 dollars,
the average initial budget for a unilaterally created agency is $2.0 billion.The
average budget for a legislatively created agency, by contrast, is $4.1
billion.In addition to the greater
resources devoted to them, agencies created by legislation tended to have
significantly longer life spans than those created by an executive or department
order.The average duration of legislative
agencies is 17.6 years; for agencies created by executive order, just 8.8
years; and for agencies established by department order, 12.1 years.
The
fact that unilaterally created agencies are relatively small, however,
does not mean that they are trivial.The USGM
excludes advisory agencies, educational and research institutions (e.g.
West Point or the National Eye Institute), and multilateral international
agencies.The agencies that make
into our dataset employ thousands of people, operate on sizeable budgets,
and assume control over important policy matters.
What
is more, presidents used their unilateral powers to design agencies that
they could control.To maximize
their influence over administrative operations, presidents rarely placed
agencies in distant parts of the federal bureaucracy.Fully
67 percent of agencies created by executive order and 84 percent of agencies
created by department order are placed either within the EOP or the cabinet,
as compared to only 56 percent of agencies created legislatively.
Presidents
also were less likely to create agencies governed by independent boards
or commissions.Rather, agencies
created through executive action almost always reported directly to the
president.Independent boards or
commissions, which dilute presidential control, governed only 13 percent
of all agencies created unilaterally, as compared to 31 percent of agencies
created through legislation.
Presidents rarely placed limitations on who they could appoint to their agencies.Forty percent of agencies created through legislation had some form of qualifying restrictions for appointees, as compared to only eight percent of unilaterally created agencies.In addition, presidents almost never imposed party-balancing limitations on agencies they created on their own, though Congress required as much from 12 percent of the agencies it established through legislation.
Presidents
also enjoyed significantly more discretion to fire heads of unilaterally
created agencies.Not a single federal
agency created by executive order or department order between 1946 and
1995 had fixed terms for political appointees.Political
appointees served for fixed terms in only three agencies created through
reorganization plans.By contrast,
over one third of all agencies designed through legislation had fixed-term
appointments.
Presidents
use their unilateral powers to create agencies that they can more easily
control—placing them closer to the EOP, requiring that bureaucrats report
to them rather than an independent board or commission, and eliminating
restrictions on political appointments.What
presidents may lose in the size or significance of agencies they can create
unilaterally, presidents gain back in the control they exercise over them.
III. Isn’t
Congress Really in Charge?
Perhaps
Congress only delegates authority to the president when it wants an uninsulated
agency.Surely, there are occasions
when members of Congress prefer less insulation, and rather than do the
work themselves, they may simply allow the president to take charge.If
this supposition holds, then congressional influence hardly appears diminished,
nor presidential influence enhanced.Rather,
presidents’ unilateral actions only reflect the underlying wishes of Congress.
But
what exactly are Congress’s wishes?When
asked directly, the question appears odd.Congress
is not a unitary actor who enacts legislation that clearly, and inescapably,
represents its basic preferences.Rather,
the institution consists of 535 members representing hundreds of separate
constituencies.Its members are scattered
across two chambers and dozens of committees and subcommittees.Burdened
with all kinds of collective problems and facing multiple veto points,
the least of which is the president’s own, members of Congress have an
extremely difficult time monitoring the president, and making sure that
his actions comply with their diverse interests.The
notion that congressional interests are homogenous, and that members can
easily enact legislation that embodies these interests, profoundly obscures
the true nature of the institution (Moe 1989).
What
is more, the claim that Congress effectively controls the president through
delegation assumes that its members, with each new session, decide what
the current president can do and what he cannot.Given
scarce time and resources, however, members usually renegotiate the amount
of delegated power that the president retains in only a few policy spheres
(Moe and Howell 1999).Most of the
time, when acting unilaterally, presidents rely upon vague and conflicting
statutes and old delegations of authority to create agencies that hardly
reflect the current Congress’s presiding interests.
A Case in Point: The National Biological
Service
After accepting two amendments that watered down the initial bill, the House passed HR 1845 on October 26 of 1993 by a vote of 255 to 165.The first amendment outlawed the use of volunteers to perform survey activities and the second mandated that the NBS receive written permission before entering private property.The Senate, however, never took action on its version, S1110.
Congress
never authorized the NBS.Instead,
the agency continued to operate in the Department of Interior as specified
by Secretary Babbitt’s initial order.By
1995 the service employed more than 1,900 persons, operated 15 science
centers, 90 field stations, and 54 cooperative research units.It
is doubtful that Congress would have ever created the NBS through legislation,
and certainly not in the form it assumed through executive action.Congress
simply could not garner the votes needed to create the agency on their
own – but nor could they assemble enough votes to dismantle the NBS once
it was fully operational.
The
history of the NBS illustrates two important points.First,
Congress does not perfectly delegate its legislative authority.Secretary
Babbitt turned to delegated authority from a 1950 reorganization plan to
justify creating the NBS – the willingness of the current Congress to delegate
additional authority proved largely irrelevant.Second,
by relying upon his unilateral powers, the president created a version
of the NBS that was significantly different from what Congress might have
produced, had it managed to act at all.
Why
can’t Congress just pass new legislation or refuse funding?
Even
when a majority in Congress prefers some alternative to a unilaterally
created agency, members frequently cannot coordinate an effective legislative
response.While vying for scarce
space on the legislative calendar, bills also must compete for the attention
of committees and party leaders.Committee
chairs and the Rules Committee often can prevent bills from coming to the
floor for a vote.Individual senators
can filibuster and place anonymous holds on bills.And
every bill is subject to a possible presidential veto.The
process of building and then sustaining a coalition to pass legislation
is time-consuming, fraught with institutional obstacles, and in the end,
most likely to end in failure.
Action
by the president, on the other hand, is not subject to these types of constraints.Proceeding
with independent constitutional authority and authority delegated to the
president over time, the president and his subordinates can make policy
with the stroke of a pen, leaving it up to Congress to respond (Mayer 2001;
Moe and Howell 1999; Moe and Wilson 1994).Presidents
often exploit the difficulties of legislative action by unilaterally setting
policies that at least a third of Congress supports, making it virtually
impossible for Congress to deliver a counterproposal that can overcome
a presidential veto.
Congress,
though, still holds a key strategic advantage.Should
the president design a particularly controversial agency, members of Congress
can simply cut off funding.In this
instance, non-action on the part of Congress is functionally equivalent
to outward opposition.Unless the
president secures funding for an agency he unilaterally creates, eventually
the agency will die.The travails
of the legislative process, here, work against the president, rather than
for him.
The
need for budgetary appropriations certainly limits what presidents can
accomplish unilaterally.But the
president’s influence does not disappear entirely.Three
reasons explain why.First, the legislative
process is significantly more difficult to navigate than the appropriations
process.This process is streamlined
for the simple reason that failure to pass an appropriations bill means
that checks are not written, programs go unfunded, and government employees
are not paid.Passing appropriations
usually requires only a simple majority, as compared to a supermajority
for most legislation (Krehbiel
1998).Therefore,
there is a range of actions that presidents can take on their own that
Congress will fund, even though these actions could not survive the legislative
process.
Second,
in many instances a new agency has been up and running for months before
Congress considers whether or not to appropriate additional funding.The
new agency is presented as a fait accompli supported by the administration,
employees within the agency, and friends in Congress.Consider
the Peace Corps.In the 1950s Senator
Hubert Humphrey (D-MN) and Representative Henry S. Reuss (D-WI) first proposed
the idea of sending volunteers overseas to help develop particularly impoverished
regions in the world.Humphrey and
Reuss introduced legislation in 1960 to study the practicality of such
a program.Republicans, however,
rejected the proposal as a “juvenile experiment,” and Richard Nixon claimed
that its volunteers would just be seeking to escape the draft.Once
in office, though, Kennedy bypassed the legislative process and created
the Peace Corps by executive order.Congressional
Republicans decried his actions, arguing that the Peace Corps was too expensive,
of little value, and its creation by executive order represented an abuse
of presidential power.But by the
time Congress formally moved to grant a statutory basis for the Peace Corps,
the Corps had 362 Washington employees and 600 volunteers at work in eight
countries (Whitnah 1983).Congress,
then, had little choice but to continue funding, else fight the interest
groups that had grown up around the fledgling organization.
Finally,
because the larger budget process shields them, presidents retain significant
discretion over the design of administrative agencies.Given
the enormous size of the budget, Congress must pick its battles.If
it re-examined every line, and challenged every spending item, Congress
could not possibly complete the budget every year.Consequently,
many agencies, even those opposed by a majority in Congress, are funded
year in and year out through the momentum and cover provided by larger
budget battles (Kaufman
1976).Of
course, presidents will not unilaterally create agencies that offend a
large number of congressional representatives, knowing ex ante that Congress
will decline their budgetary requests.In
this sense, we primarily observe equilibrium-type behaviors.But
a basic insight holds: presidents create all kinds of administrative agencies
that Congress would not establish through legislation, secure in the knowledge
that funding will be forthcoming.[9]
IV. When
do Presidents Unilaterally Create Federal Agencies
Presidential
Preemption
There are a lot of things that happened under Nixon that people don’t think of Nixon in association with.But they didn’t happen necessarily because Nixon wanted them to.They happened because of the reality of the American political system.The most striking example here is the imposition of wage and price controls, very un-Republican, very un-Nixonian, but he did it.He did it to stave off Congress from doing it in even more drastic fashion than he did it in.(Ambrose 1996)
Influence need not come from positive steps taken in the direction one prefers; frequently, it involves proceeding a few steps in just the opposite direction to ensure that one’s political opponents go no further.
When
he created the Loyalty Review Board by executive order in 1947, Harry Truman
employed this same strategy.Given
his druthers, the federal government would never have entered into the
business of monitoring federal employees’ national allegiances (Lewy1983).The
trouble, though, was that the Republican majority in Congress had rallied
broad-based support for legislation to create a powerful agency overseeing
the loyalties of employees throughout the federal bureaucracy.Absent
presidential action on the matter, it was quite clear that Republicans
had the votes to override a presidential veto.
By
establishing a smaller, and slightly weaker, board on his own, Truman successfully
derailed the support of moderates in Congress who previously preferred
a strong agency to none at all.Truman’s
board lacked important resources and enforcement powers for which Congress’s
version provided.Given his actions,
though, the Republicans’ bill subsequently passed the House, but it never
made it through the Senate.And having
held up funds for Truman’s modest Loyalty Review Board, Republicans eventually
appropriated funding, conceding that they could not enact their own alternative.
Gridlock
The
FEPC ensured that all training and vocational programs in the defense industries
were “administered without discrimination because of race, creed, color,
or national origin.”EO 8802, however,
did not establish standards of discrimination and failed to allocate direct
enforcement powers.While the FEPC
was to “receive and investigate complaints of discrimination in violation
of the provision of this order,” it was not given any formal powers to
prosecute.Consequently, the order’s
importance largely derived from its symbolic value.
The
following year Congress introduced several bills that attempted to deal
with these deficiencies.Representative
Vito Marcantonio of New York introduced legislation (HR 7412) that would
have made the FEPC a statutory agency, with the added power to issue cease
and desist orders.Being subject
to judicial review, these orders lend critical enforcement powers to the
FEPC.Marcantonio’s bill, however,
never even made it out of committee.
It
was only because the president retained the power to act unilaterally that
the federal government managed to create a civil rights agency.While
the FEPC was relatively weak, it nonetheless carved out a role for the
government to protect civil rights.The
subsequent four presidents each built upon the foundation laid by Roosevelt,
creating additional agencies with stronger and stronger enforcement powers
(Truman’s Fair Employment Board within the Civil Service Commission,
Eisenhower’s Committee on Government Employment Policy, Kennedy’s Committee
on Equal Employment Opportunity, and then Johnson’s Equal Employment Opportunity
Commission).In
each instance, the alternative to the agencies presidents created through
unilateral action was not an agency designed through legislation.Rather,
it was no agency at all.
To
claim that the president does Congress’s bidding when he creates an administrative
agency is to miss a fundamental point about how presidents use their unilateral
powers.All else equal, presidents
would prefer to establish administrative agencies with legislation, if
only because these agencies are more durable over time.Presidents
establish agencies on their own not because Congress wants them to, but
because Congress is incapable of legislating at all.
V. Theory Testing
Unfortunately,
without making strong assumptions about the location of status quo policies
in relation to the preferences of Congress and the president, testing the
second prediction poses significant problems.Without
a consistent measure of the kinds of agencies that the president supports,
those that he opposes, and the likelihood that Congress will enact either,
we cannot systematically identify when presidents are using their unilateral
powers to preempt Congress, and when they shifting policies that Congress
would not otherwise act upon at all.As
previous case studies indicate, presidents do use this strategy.It
is just unclear how we would systematically test its predictions without
reliable measures of the status quo, and the direction and distance that
unilateral actions change it.
Consequently, the empirical tests that follow focus exclusively on the relationship between legislative gridlock and presidential lawmaking, a prediction that does not depend upon any particular distribution of status quo policies.In the future, however, we hope to sort through the legislative agendas and agency proposals of modern presidents and congresses in order to explore the politics of preemption more systematically.
Data
To
measure unilateral activity, we analyze the number of agencies created
by administrative action over time.Using
the USGM, we gathered data on all administrative agencies created
in the United States between 1946 and 1995, excluding advisory commissions,
multi-lateral agencies, and educational and research institutions.To
qualify as new, each agency had to have a different name and set of functions
from any previously existing agencies.[11]So,
for example, the National Archives and Records Service (NARS), created
in the General Services Administration in 1949, is included even though
it retained much of the character of the National Archives Establishment,
a previously existing independent agency.In
addition to a change in location, the NARS assumed a new name and additional
responsibilities over federal government records.
Our
dependent variable consists of the number of agencies created by executive
action each year between 1946 and 1995.Because
presidents stopped submitting reorganization plans after 1983, and because
the politics associated with reorganization plans differs somewhat from
that of other unilateral directives, we restrict the dependent variable
to include only executive and departmental orders.[12]In
addition, because administrative agencies often take as many as three years
before appearing in the USGM,
the timeline terminates at 1995.[13]
Figure
1 graphs the number of agencies created by executive action between 1946
and 1995.The number of agencies
created each year varies from zero to seventeen with a mean value of 4.18
and standard deviation of 3.64.Substantial
variability exists from year to year and congress to congress.On
the whole, presidents tend to create between three and seven agencies per
year.During five years (1957-58,
1966, 1987 and 1989), presidents failed to unilaterally create any agencies
whatsoever, and during two others presidents created as many as seventeen
(1950 and 1961).
Independent
Variables: Congressional Weakness and Controls
There are a wide variety of ways to measure Congress’s capacity to legislate. Some scholars argue that Congress is most effective when majority parties are strong and unified and/or minority parties are small and divided. The size of congressional majorities, “party unity scores,” and “legislative potential for policy change” indices represent some attempts to assess congressional strength (Brady, Cooper and Hurley 1979; Binder 1999). Each of these measures makes strong assumptions about the capacity of party leaders to guide policy initiatives through a long and difficult legislative process. Party strength, in this sense, is equivalent to congressional strength.
Undoubtedly, considerable debate surrounds the claim that Congress’s capacity to legislate hinges upon the strength of its parties (Krehbiel 1993).We have no stake in this debate’s outcome. To minimize controversy, therefore, we gauge congressional strength not by tracking the size of party majorities, but instead by directly measuring the harmony of members’ ideological orientations, both within and between chambers. As members’ preferences disperse, coalitions should have a harder time enacting major policy changes; conversely, as preferences conform, the travails of the legislative process should attenuate.[14]
To calculate the variance of members’ preferences, we use transformed W-Nominate scores that allow for inter-temporal and cardinal comparisons (Poole 1998; Poole and Rosenthal 1997; McCarty and Poole 1995). We construct a composite index that consists of three components: the standard deviation of House Nominate scores, the standard deviation of Senate Nominate scores, and the distance between the median members within the two chambers. The first two components capture the ideological divisions within the chambers; the final captures the level of disagreement between the chambers. To build the index, we standardized and then summed each component. We then rescaled the index to range from zero to one.
Throughout
most of the post-WWII era, the same political party held majorities in
both chambers of Congress.Between
1980 and 1986, however, Republicans ran the Senate while Democrats held
the House.It is possible that these
party divisions introduced obstacles in the legislative process that are
not captured by a measure of congressional weakness based upon chamber
medians.We therefore constructed
a second measure of congressional weakness that substitutes for the differences
between chambers medians the differences between majority party medians.
Figure 2 graphs both measures of congressional weakness.Not too surprisingly, they show similar trends (the correlation between the two measures is .64).Both spike in the late 1940s, mid-1970s, and early 1990s.Both trend lines suggest that the congresses of the 1960s and early 1970s were relatively strong compared to other congresses.As one might expect, the two series deviate from one another between 1980 and 1986, when Democrats ran the House and Republicans controlled the Senate.
When estimating the impact of congressional weakness on unilateral activity, the models control for divided government and include fixed effects for each president.We include an indicator for divided government since Congress is likely to keep a tighter reign on executive unilateral activities when the president is from the opposite party, and we do not want to falsely attribute the estimated independent effect of ideological divergence between the branches of government to the estimated effect of congressional weakness.[15]We also include fixed effects to eliminate false correlations based upon the uniqueness of individual presidents, their partisanships, or leadership styles.
Methods
To analyze the impact of congressional weakness on unilateral activity, one might estimate logistic regressions on all agencies created since 1946. The dependent variable could be coded one if an agency is created by executive action, and zero if an agency is established via statute. This approach, however, is problematic because it takes as given that an individual agency will be created, and then tries to explain whether it is more likely that the agency will be created through legislation or administrative action. The trouble here is that the sample of agencies created may differ significantly from the population of agencies proposed; for as we discovered earlier, the alternative to an agency created by executive action is often no agency at all. As such, logistic models do not appear appropriate.[16]
We instead use event count data and estimate a series of simple Poisson regressions.Poissons are a special case of negative binomial regressions where the ancillary parameter (or dispersion parameter), a, equals zero.A likelihood ratio test of nested models suggests that we cannot reject the null hypothesis that a equals zero, making Poissons appropriate.[17]
Table 2 includes estimates of four models of unilateral agency creation.The first two models include the measure of Congress’s capacity to legislate based upon preference divergence within chambers and across chamber medians.The last two models rely upon the composite measure of congressional weakness that substitutes in the differences between majority party medians in the two chambers.All four models are estimated with only 50 cases so the standard errors of the models are relatively large.Still, even with these limitations, they perform quite well.We can reject the null hypothesis that they do not improve on a constant-only model (p< 0.05).
First
consider column one.Congressional
weakness has a statistically significant and positive impact on the number
of executive agencies presidents create on their own.As
members’ preferences disperse, unilateral activity increases; and as they
conform, activity decreases.Controlling
for the unemployment rate and periods of war, as column two does, hardly
affects the estimated relationship between congressional strength and unilateral
activity.[18]
Using
the second measure of congressional weakness, we re-estimated these models
in columns 3 and 4.Little changes.Whether
or not we control for periods of war or economic crisis, congressional
weakness has a statistically significant and positive relationship with
the number of administrative agencies that presidents unilaterally create
each year.A shift of one standard
deviation of the weakness measures leads, on average, to an increase of
between 0.4 and 0.8 executive created agencies per year, or two to three
agencies per administration.These
shifts represent a 10 to 20 percent increase in unilateral activity.Comparing
the weakest and strongest congresses, these models estimate annual differences
of between 1.5 and 2 new agencies.
Beyond this central finding, the results also indicate that presidents create fewer agencies by executive action during periods of divided government.The estimates from models 1 and 3 in table 2 suggest that two fewer agencies are created annually when different parties run the legislative and executive branches.In the more fully specified models, when controls for the unemployment rate and periods of war are included, the impacts of divided government become relatively small and statistically insignificant.
Finally, as one might expect, the models show that more agencies are created during foreign and economic crises.During periods of war, the president creates as many as 2.5 additional agencies per year.Similarly, increasing the yearly unemployment by one standard deviation leads to a jump of 0.5 agencies created each year by executive action.
The
findings in table 2 corroborate our prediction that as the preferences
of congressional members disperse, the frequency of agency creation should
increase.A priori, however, we have
no clear expectation about the functional form of the relationship between
congressional weakness and unilateral activity.Up
until now, we have assumed linearity— across its entire distribution, a
marginal shift in congressional weakness leads to the same unit change
in the dependent variable.The true
impacts, however, could just as easily be nonlinear.For
extremely strong or extremely weak congresses, a small shift may have little
impact; but between these extremes, minor changes in congressional strength
may yield significant changes in the number of administrative agencies
presidents create.
We
find mixed evidence for this supposition.Diagnostic
tests show that the first measure of congressional weakness based upon
differences in chamber medians has a linear relationship with the number
of administrative agencies established each year.For
the measure of congressional weakness based upon differences in majority
party medians, however, the relationship appears non-linear.Including
a nonlinear transformation of this second measure of congressional weakness
significantly improves the fit of the model.
Table
3 reports the regression results.The
linear congressional weakness term is now negatively signed, while the
squared term has positive relationship with the number of administrative
agencies created each year.Both
terms are statistically significant.Substantively,
these findings suggest that for low values of congressional weakness (that
is, when Congress is quite strong), a marginal shift in either direction
has little impact on the number of agencies created each year.As
one moves across the continuum, however, the impact of congressional weakness
rapidly increases.
Figure
3 illustrates this relationship.The
figure graphs the expected number of agencies created each year for different
simulated values of congressional weakness, holding all the other covariates
at their means (Tomz et al 1999; King et al 2000).The
bars show the 90 percent confidence intervals around the expected values.The
figure does not report values at the tails of the distribution, where the
confidence intervals are widest.
When
Congress is quite strong (i.e., when the value of the weakness measure
is low), a marginal shift to the right has virtually no impact on the number
of administrative agencies created each year.But
beyond roughly the median value for congressional weakness, the trend turns
upward.Marginal increases in congressional
weakness have successively larger positive impacts on the number of administrative
agencies that presidents create.At
its maximum, presidents can be expected to create roughly 18 agencies per
year.
We
do not have a definitive explanation for why the functional forms of the
two measures of congressional weakness differ.Perhaps,
heterogeneity between majority parties in the two chambers has a significant
impact on unilateral activity only within certain ranges along its distribution,
while heterogeneity between the two chambers generally has a more uniform
effect.Alternatively, the observed
differences in functional forms may simply represent random noise in the
data; it is worth remembering, we are only working with 50 observations.In
the future, we plan to extend the time series and further investigate the
precise character of the observed impact of congressional weakness on unilateral
activity.
VI. Conclusion
For years, scholars have examined how presidents influence the bureaucracy by making strategic appointments, removing insubordinates, and proposing and reassigning budgets.Missing, however, has been an appreciation that these powers vary dramatically depending on how each administrative agency is initially designed.When it legislates, Congress often imposes restrictions that effectively insulate an agency from the president.By striking out on their own, however, presidents structure the agency in ways that significantly increase the amount of control they subsequently exercise over it.In this sense, the president’s power to create agencies precedes, and largely defines, all of his other powers to oversee the bureaucracy.
The empirical tests presented here strongly suggest that Congress is not in the driver’s seat.Its members do not dictate when or how presidents unilaterally create administrative agencies.On the contrary, presidents create more agencies when Congress is relatively weak, and hence less capable of expressing its preferences or punishing the president should he contravene them.Rather than using their unilateral powers to fulfill the expressed wishes of Congress, presidents appear to exercise these powers precisely when these wishes are individually most divided, and collectively least coherent.
The ability to act
unilaterally, we believe, has become so important over the past 50 years
that it stands out as one of the most important characteristics of the
modern presidency.By strategically
employing these unilateral powers, presidents have managed to create a
broad array of administrative agencies that perform functions that congressional
majorities oppose.Modern presidents,
and those working under him, have unilaterally created a solid majority
of the administrative agencies that currently operate in the federal bureaucracy.Absent
the president’s capacity for unilateral action, many of the most important
agencies in the federal bureaucracy would not even exist.It
is our hope that scholars will continue to examine the precise conditions
under which presidents can exercise this power and assess the influence
that it affords.
BIBLIOGRAPHY
Ambrose,
Stephen in Richard Nixon: Man and President, A&E Biography,
1996.
Arnold,
Peri E.1998.Making
the Managerial Presidency: Comprehensive Reorganization Planning, 1905-1996,
2nd , rev. ed.Lawrence, Kan.:University
Press of Kansas.
Bawn,
Kathleen. 1995. "Political Control Versus Expertise: Congressional Choices
about Administrative Procedures." American Political Science Review.
89(1): 62-73.
Bawn,
Kathleen. 1997. "Choosing Strategies to Control the Bureaucracy: Statutory
Constraints, Oversight, and the Committee System." Journal of Law, Economics,
and Organization. 13(1): 101-126.
Binder,
Sarah. 1999. "The Dynamics of Legislative Gridlock, 1947-96." American
Political Science Review. 93(3): 519-34.
Brady,
David, Joseph Cooper and Patricia Hurley. 1979. “The Decline of Party in
the U.S. House of Representatives, 1887-1968.” Legislative Studies Quarterly.
August (3): 381-407.
Chang,
Kelly.1999.The
President Versus the Senate:Appointments
in the American System of Separated Powers and the Federal Reserve.Manuscript,
University of Wisconsin.
Clayton,
Cornell.1992.The
Politics of Justice:The Attorney
General and the Making of Legal Policy.Armonk,
NY:M.E. Sharpe.
Emmerich,
Herbert.1971.Federal
Organization and Administrative Management.University
of Alabama Press.
Epstein,
David and Sharyn O'Halloran. 1994. "Administrative Procedures, Information,
and Agency Discretion." American Journal of Political Science. 38(3).
Epstein,
David and Sharyn O'Halloran. 1996. "Divided Government and the Design of
Administrative Procedures: A Formal Model and Empirical Test." Journal
of Politics. 58(2).
Epstein,
David and Sharyn O'Halloran. 1999. Delegating Powers: A Transaction
Cost Politics Approach to Policy Making under Separate Powers. New
York: Cambridge University Press.
Falk,
Stanley L.1964.“The
National Security Council Under Truman, Eisenhower, and Kennedy.” Political
Science Quarterly 79(3):403-34.
Fiorina,
Morris. 1986. "Legislator Uncertainty, Legislative Control, and the Delegation
of Legislative Power." Journal of Law, Economics, and Organization.
2(1): 33-51.
Fisher,
Louis.1975.Presidential
Spending Power.Princeton,
N.J.:Princeton University Press.
Fisher,
Louis.1998.The
Politics of Shared Power: Congress and the Executive, 4th ed.College
Station:Texas A&M University
Press.
Horn,
Murray J.1995.The
Political Economy of Public Administration: Institutional Choice in the
Public Sector.Cambridge
[England] ; New York, NY:Cambridge
University Press.
Kaufman,
Herbert.1976.Are
Government Organizations Immortal?Washington:Brookings
Institution.
King,
Gary, Michael Tomz, and Jason Wittenberg. 2000. "Making the Most of Statistical
Analyses: Improving Interpretation and Presentation." American Journal
of Political Science. 44(2): 347-361.
Krehbiel,
Keith.1998.Pivotal
Politics: a Theory of U.S. Lawmaking.Chicago:University
of Chicago Press.
_____________.
1993. "Where's the Party?" British Journal of Political Science.
23:235-66.
LeLoup,
Lance T.1980.Budgetary
Politics.Brunswick,
OH:King's Court.
Lewy,
Guenter. 1983. The Federal Loyalty-Security Program: The Need
for Reform. Washington, DC: American Enterprise Institute.
Long,
J. Scott.1997.Regression
Models for Categorical and Limited Dependent Variables.Thousand
Oaks, CA:Sage Publications, Inc.
Macey,
Jonathan. 1992. "Organizational Design and Political Control of Administrative
Agencies." Journal of Law, Economics, and Organization. 8(1): 92-110.
Mayer,
Kenneth.2001.With
the Stroke of a Pen: Executive Orders and Presidential Power.Princeton,
NJ:Princeton University Press.
McCarty,
Nolan.1999."Bargaining
Over Authority:The Case of the Appointment
Power."Paper presented at the Annual
Meeting of the American Political Science Association,Atlanta,
GA.
McCarty,
Nolan M., and Keith T. Poole. 1995. "Veto Power and Legislation: An Empirical
Analysis of Executive and Legislative Bargaining from 1961 to 1986." Journal
of Law, Economics, and Organization 11:282-312.
McCubbins,Mathew.
1985. "The Legislative Design of Regulatory Structure." American Journal
of Political Science. 29: 721-48.
McCubbins,
Mathew, Roger Noll and Barry Weingast. 1987. "Administrative Procedures
as Instruments of Political Control." Journal of Law, Economics, and
Organization. 3: 243-277.
McCubbins,
Mathew, Roger Noll and Barry Weingast. 1989. "Structure and Process, Politics
and Policy: Administrative Arrangements and the Political Control of Agencies."
Virginia
Law Review. 75(2): 431-482.
Moe,
Terry M. 1982. "Regulatory Performance and Presidential Administration."
American
Journal of Political Science 26:197-224.
Moe,
Terry M.1985.“The
Politicized Presidency” in The
New Direction in American Politics, edited by John E. Chubb
and Paul E. Peterson.Washington,
DC:Brookings.
Moe,
Terry M.1987.“Interests,
Institutions, and Positive Theory.” Studies in American Political Development.
2:236-299.
Moe,
Terry M.1989.“The
Politics of Bureaucratic Structure.” in Can
the Government Govern?, edited by John E. Chubb, and Paul E.
Peterson.Washington, DC:Brookings.
Moe,
Terry M., and William G. Howell.1999."The
Presidential Power of Unilateral Action."Journal
of Law, Economics, and Organization. 29(4): 850-872.
Moe,
Terry M., and Scott A. Wilson.1994.“Presidents
and the Politics of Structure.” Law
and Contemporary Problems 57(2):1-44.
Morgan,
Ruth P. 1970. The President and civil rights: policy-making by executive
order. New York,: St. Martin's Press.
Nathan,
Richard P.1969. Jobs and Civil
Rights: The Role of the Federal Government in Promoting Equal Opportunity
in Employment and Training. Washington, D.C.: Government Printing Office.
Nathan,
Richard P. 1975.The
Plot that Failed:Nixon and the Administrative
Presidency.New York:John
Wiley.
Nathan,
Richard P.1983.The
Administrative Presidency.New
York:John Wiley.
Poole,
Keith, and Howard Rosenthal.1998.“Estimating
a Basic Space from a Set of Issue Scales.” American Journal of Political
Science 42(July):954-93.
Snyder,
Susan K., and Barry R. Weingast.1994."The
American System of Shared Powers:The
President, Congress, and the NLRB."Manuscript,
Stanford University.
Snyder,
SK, and Barry Weingast. 2000. "The American system of shared
powers: the President, Congress, and the NLRB." The Journal
of Law, Economics, and Organization 16(2):269-305.
Stewart,
Joseph, Jr., and Jane S. Cromartie. 1982. "Partisan Presidential Change
and Regulatory Policy: The Case of the FTC and Deceptive Practices
Enforcement, 1938-1974." Presidential Studies Quarterly 12:568-73.
Szanton,
Peter (ed.).1981.Federal
Reorganization:What Have we Learned?Chatham,
NJ:Chatham House Publishers, Inc.
Tomz,
Michael, Jason Wittenberg, and Gary King (1999). CLARIFY: Software for
Interpreting and Presenting Statistical Results. Version 1.2.1. Cambridge,
MA: Harvard University, June 1.
Waterman,
Richard W.1989.Presidential
Influence and the Administrative State,
1st ed.Knoxville:University
of Tennessee Press.
Whitnah,
Donald R.1983.Government
Agencies.Westport, CT:Greenwood
Press.
Wood,
B. Dan, and Richard W. Waterman.1991.“The
Dynamics of Political Control of the Bureaucracy.” American Political
Science Review 85(3): 801-828.
Wood,
B. Dan, and Richard W. Waterman.1994.Bureaucratic
Dynamics: the Role of Bureaucracy in a Democracy.Boulder:Westview
Press.
Zegart,
Amy Beth.1999.Flawed
by Design.Stanford,
CA: Stanford University Press.
II. Author’s Cites
2000b.Presidents
and the Politics of Agency Design:Political
Insulation in the United States Government Bureaucracy, 1946-1997.Dissertation,
Stanford University.
This
figure shows the number of administrative agencies created each year through
either an executive or a departmental order that were mentioned in the
USGM.
