Notice & Comment

The Bureaucracy Also Empowers the Unitary Executive

*This is the eighth post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here.

The President’s power over the administrative state is typically understood as the power to direct executive branch agencies and officials to act in accord with the President’s policy preferences. The problem with this understanding is that it is too limited, grounded in a conception of personal rather than official power. It is natural and easy to focus on the single person who at any one time serves as President. That person brings to the position an identifiable set of strengths, weaknesses, and policy priorities. But the President’s constitutional power comes not from her person, but from the office she occupies.

Executive orders are among the most formal and visible tools the office of the presidency makes available to each individual President. Andrew Rudalevige’s fascinating book offers a compelling and nuanced account of where executive orders come from and how they are—or are not—issued. The analysis complicates the typical understanding of presidential power as purely or even primarily a matter of personally directing the actions of the administrative agencies or officials. Rudalevige shows that only about 20% of executive orders are developed through a centralized process that might colloquially be called unilateral. Meanwhile, “some 6 in 10 EOs are formulated primarily outside the Executive Office of the President, and more than 4 in 10 preponderantly by the departments and agencies with little EOP intervention” (p. 99).

The book powerfully demonstrates how the organizational realities of the executive branch limit a President’s power to unilaterally direct administration through executive orders. A new President arrives in office with her own policy priorities and political appointees. But that President takes office midstream, inheriting a government already in operation. That government has already been organized and staffed with the employees necessary to carry out the myriad statutory commands of prior Congresses. Its operation has been shaped by previous Presidents, courts, and administrative officials. The placement of the office of the presidency atop this vast, continuing bureaucracy constrains each individual President’s power to unilaterally direct the federal government.

What deserves greater attention is how those organizational realities also empower the office of the presidency. The bureaucracy may thwart a President’s personal goals, but it also equips the office of the presidency with powers and privileges that are essential to the success of a unitary chief executive. These include (at a minimum) the powers to delegate, coordinate, and veto, all of which are supported by the extraordinary privilege of access to the knowledge and expertise that is disbursed throughout the executive branch.

The power to delegate. A single person could not plausibly direct the day-to-day operations of the federal government, let alone do it well. Fortunately, the office of the presidency is supported by the bureaucracy. The President can rely on existing agencies to continue to implement statutory mandates through routinized agency operations that demand little or no presidential attention. Closer to home, the President is supported by officials in the EOP and can delegate to them the work of managing the two-way street between the office of the presidency and the wider bureaucracy. The President’s power to delegate tasks to officials throughout the executive branch is essential to fulfill executive obligations and narrow down the matters worthy of presidential attention.

The power to coordinate. Competent administration requires coordination among agencies with crosscutting jurisdiction and overlapping expertise. The office of the presidency is the ultimate locus of the power to coordinate. The actual work of interagency coordination is time consuming and strenuous yet delicate, and it is typically undertaken on delegated authority. But the President’s power to coordinate makes it possible for the administration and the agencies to fulfill executive obligations. The lurking threat of direct presidential intervention surely makes agencies more willing to participate in the process. Without the President’s power to coordinate, most executive orders could never be issued.

The power to veto. Just as the President can veto Congress, so too can she veto the bureaucracy. In some instances, this power is asserted to overrule agency objections that stand in the way of successful coordination. Or the President may break a tie between agencies that cannot come to an agreement by choosing one option for an executive order over another (p. 214). In other instances, an executive order may bubble up through the decentralized processes of the bureaucracy only to be defeated by a firm presidential “no.”

The privilege of access to executive branch knowledge. In the exercise of all these powers, the President has the privilege of access to the deep knowledge and experience of the executive branch. This information includes subject matter expertise, institutional memory, and even disbursed knowledge of present political realities. The office of the presidency comes fully equipped with the governmental equivalent of Hermione’s enchanted handbag: a bureaucracy full to the brim with information that no single person could ever individually possess. It is unsurprising—even heartening—to discover that the policy priorities of an individual President may be affected and even altered once she gains access to this extraordinary resource. And while it may seem to interfere with the President’s personal power to direct administrative activities, it enriches the office’s more subtle powers to delegate, coordinate, and veto.

To really understand presidential power, we must resist the intense pressure to focus too intently on the person who occupies the office. The President has strong incentives to take exclusive credit for completed executive orders and to complain loudly when her policy priorities seem to be impeded by the bureaucracy. Rudalevige’s analysis invites us to take a longer and less personal view, refocusing on the limitations, powers, and privileges that attach to the office of the presidency. The limitations imposed on the President by the bureaucracy are real, but to focus exclusively on them is to fall yet again into the trap of defining the presidency in personal terms. To expand our understanding in scope and across time, we should give further attention to the ways in which the vertical bureaucracy empowers the Constitution’s unitary executive to function.

Emily S. Bremer is an associate professor of law at the University of Notre Dame Law School, where she teaches and writes in administrative law, civil procedure, and regulatory process.