Internal Checks and Balances?

Semi-powered bureaucracy and constitutional stability

Riggs's main point: U.S. stability, compared to other presidential systems, is due in part to its uniquely "centrifugalized, semi-powered" bureaucracy.

The career patterns of bureaucrats

Disinctions in background

Professionals:

  • special training and norms;
  • “functionist” orientation;
  • “extra-bureaucratic orientation”

vs.

political appointees

  • retainers: remain in office long-term (common in presidential systems; common in U.S. prior to Jackson). Owe appointment and retention to personal connections.
  • spoils system

vs.

Mandarins

  • Elite generalist managers (often trained in one or a few places)
  • The British or Confucian model

Disinctions in tenure

Transients

  • rotationism
  • professionals who go on to careers outside govt

vs.

Career officials

  • civil service & career professionals
  • retainers
  • mandarins

 

U.S. vs. other presidential bureaucracies

  • transients: political appointees in supervisory positions
  • specialist professionals: subject to external incentives & norms
    • strong influence on policy in own area
    • membership in interest networks ("subgovernments")
    • diverse backgrounds; trained in a wide variety of public universities
    • managed by transient non-professionals
  • "functionist" career civil servants

Other presidential bureaucracies:

  • retainers: patronage appointees who remain long-term
  • mandarins: trained generalists selected competitively from elite classes
  • problems of concentrated power and competent corruption

Historical development

Constitution dictates transient political leadership of executive departments

19th-c experience of the spoils system

  • incompetence
  • corruption, often revealed due to incompetence
  • elected politicians’ activity revolved excessively around patronage

The Morrill Act (1862)

  • professionals in distinct subfields of "agriculture and the mechanic arts"
  • economic class dispersal
  • geographic dispersal
  • [applies as well to the military; and Morrill Act also created ROTC]

Civil service (Pendleton Act, 1883)

  • merit system, competitive examinations
  • “excepted” professional categories
  • Gradual extension and development
    • Increased inclusion at every partisan change-over
    • Civil Service Reform Act (1978)

Progressive era (and later New Deal) emphasis on “scientific administration”

  • Judicial and legislative oversight of agency decisions regularized by Administrative Procedure Act (1946)

Creation of a large standing military with a professionalized leadership core

  • colonial acquisitions of 1898-99
  • Cold War

Whistleblower Protection Act (1989)

  • extended by ICWPA (1998) to govt and contractor employees in intel agencies
  • extended by Whistleblower Protection Enhancement Act (2012), which made further special provision for whistleblowers with access to classified materials

 

Internal checks in place of congressional oversight

Two concerns: effective executive decision making, since so much policy is made there; and maintaining political accountability.

Failures in congressional oversight

Exemplified in 9/11 responses

Major historical sources

  • "collapse of the non-delegation doctrine" in New Deal
  • INS v. Chadha (1983): eliminated the legislative veto
  • Chevron v. NRDC (1984): courts will defer to agency interpretation of its own statute ("Chevron deference")

Internal checks and balances ideas

  • bureaucratic overlap to create competing interests
  • Foreign Service examples: career inducements, plus "Dissent Channel"
    • superiority to Civil Service
  • signoff procedures, internal adjudication -- examples
    • current DoJ rules for Special Prosecutor: reports to AG, who does not supervise in detail; can only be fired by the AG, and only for cause
    • Divide OLC into an advisory panel and a fixed-term Director of Adjudication
    • required reports to Congress upon certain decisions: example of Special Counsel
    • courts could require such procedures as condition for deference to administrative decisions
  • Not examined by Katyal: Inspectors General
    • 1921 Budget & Accounting Act moved Comptroller, and general auditing functions, out of Treasury and put the Comptroller General in charge of a new General Accounting Office (now General Accountability Office, GAO)
    • statutory IGs (Inspectors General Act of 1978) now in 73 departments and agencies
      • combine auditing and investigative responsibilities
      • presidential nomination, Senate confirmation; must report to Congress upon firing
      • not supervised by agency/department head
      • coordinate with GAO and with each other through Council of the Inspectors General on Integrity and Efficiency (CIGIE)
  • Notice that the power of most of these devices comes ultimately via the threat of publicity, which depends in turn on reporting to Congress and protection by Congress. Recommnends:
    • strengthen Congressional oversight, especially in one-party government
    • minority party ombudmen: IGs for good policy
    • investigative powers for committee minority

 


This page compiled by Randall Calvert © 2019. Email comments and questions to calvert at wustl