Streamlining The Executive Branch Of The United States – OpEd
The US Constitution is brilliant for its simplicity and eloquence: The Legislative branch makes laws expressing the will of the people that embody different geographies, industries, and demographics; the Executive branch executes the will of the Legislature as defined by law; and the Judicial branch hears grievances about conflicts that arise from the constitutionality, legitimacy, or application of laws.
The Constitution defines the Executive as one who “executes” or gets the job done. The President and his officers are answerable to the legislature, the states, and the people. If he fails in this job, he can be impeached for misconduct or through indictment for “high crimes and misdemeanors”, a term employed at the time of the drafting of the Constitution to cover a variety of shortcomings, including failures of omission.
Growth of Government
The framers of the Constitution were unlikely to foresee the massive changes in population, technology, and culture that characterize the modern US. The first US census in 1790 counted a population of 3,929,214, and the most recent census in 2020, a population of 329,842,223. The 84-fold increase in population was accompanied by massive demographic shifts from rural to urban along with technological, social, and environmental changes affecting every aspect of life.
The size, breadth, and complexity of the US government were different in the 18th century than they are in the 21st century. Today, the Executive branch of the Federal government employs more than 2,000,000 civilians and a contract workforce of 4,100, 000. When postal service workers and active military are included, the total number of Federal employees exceeds 9.1 million. Federal agencies and departments number somewhere between 252 to 443 –the wide range of estimation arises from different qualifications for inclusion. Clearly, the size and complexity of the Federal government is stupendous.
Powers of the President
The Constitution may be interpreted as bequeathing kingly powers to the President as written in Article 2, Section 2:
[2] He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper,
The appointment power of “all other Officers of the United States” includes any government official who acts on behalf of the government to execute legislative, executive, or judicial directives –unless otherwise determined by legislation. However, the clause cites that the appointment of “inferior officers” may be vested “in the President alone, in the Courts of Law, or in the Heads of Departments.” This implies a distinction between superior or inferior, greater or lesser, and that the Congress may make this distinction, reserving appointment to “heads of Departments”.
Unwieldy Presidential Appointments
At the time the Constitution was adopted, personal appointment of these officers by the President may have been feasible. However, with the growth of government through the 19th century, two problems with Presidential appointments became obvious. First, the Federal government and number of officers had increased to such an extent that a President could not realistically select and appoint so many officers. Second, political patronage had become rife and the government had become laden with marginally competent appointees who placed their own benefit above that of the Republic.
The limits of Presidential competence for appointment of “all other officers of the United States” became evident with the increased size and complexity of government. The practice evolved for the President to select officers with “significant authority” who, in turn, were delegated authority to select “lesser officers”. However, delegation did not address cronyism, so much so that during the administration of Andrew Jackson, as early as 1829, Presidential patronage became characterized as a “spoils system”.
The problem of patronage was only addressed by legislation in 1853 that required merit-based examination of prospective civil servants followed by enactment in 1883 of the comprehensive Pendleton Act which ended the spoils system and established the United States Civil Service Commission. In 1979, the Civil Service Reform Act of 1978 replaced the Commission with the Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB). Together these agencies, in conjunction with the Equal Employment Opportunity Commission (EEOC), the Federal Labor Relations Authority (FLRA) and the Office of Special Counsel (OSC) oversee the functions of the earlier Civil Service Commission.
Executive Department Composition and Management
The current embodiment of the appointment clause for selection of Officers of the United States is Presidential appointment of officials with “significant authority”. The President appoints approximately 4,000 officials of which about 1,200 require Senate approval. This number neither includes the thousands of advisory committee positions throughout the executive branch nor contractors hired by the Executive office.
The officers appointed by the President include principal directors, assistant directors, deputy directors, financial officers, and personnel at “choke points” in agency operations. For example, The Chief Financial Officers (CFO) Act of 1990 determined that each Federal Department would have an appointed Chief Financial Officer who controls Agency expenditures. The CFO of a department may declare insufficient funds for a project and stop it cold. These officers are answerable to the President and as they are appointed by the President, they may be discharged by the President.
Presidential appointments coexist with merit-based appointments through competitive evaluation for approximately 90 percent of Federal employees. By sheer numbers, career Federal employees carry the weight of Federal departments. These employees are trained and experienced in areas of expertise central to the agency purposes. Expertise varies by department and departmental mandates. For example, the Environmental Protection Agency (EPA) requires career employees with expertise in coastal ecology, toxicology, and climatology; the Department of Energy, employees with expertise in the areas of coal, nuclear, wind, or solar energy production; the Department of Commerce, employees with expertise in the areas of vehicular, oceanic, or airborne transit.
The point is that government oversight, program implementation, regulation, and the like require refined and specialized knowledge. In contrast to most Presidential appointees who must learn on the job or bring a partisan view, career Federal employees are knowledgeable about agency purposes, directives, regulations, personnel, conflicts, and alliances.
Presidential Appointees and Departments
Governance under the Constitution has been tweaked over the centuries, like an old house with appended rooms. The tweaks favored one constituency and then another. Changes of principal officers for Federal agencies are like changes of executive staff for businesses, sometimes friendly, sometimes hostile, that have profound effects upon agency priorities, funding, operations, and morale. The power of these Presidential appointments over agency functioning cannot be underestimated.
The history of Presidential appointees is mixed, at best. In successive administrations, some Federal Departments are viewed as allies and some as hostile. Friendly agencies are supported, and “hostile” agencies are choked. The dysfunction of Federal agencies arises from administrative “on-again, off-again” favoritism, interference, and disdain. Only the Department of Defense seems immune.
However, in recent decades, political influence has tilted toward large corporations, contractors, sponsored think tanks, and political action committees. News, information, and journalistic opinion are dominated by a handful of centralized sources. Government “of, by, and for the people” has metamorphosed to government “of, by, and for” the powerful and well-connected.
Trump’s administrative appointments to Federal Departments are instructive. The Secretary of State, Mike Pompeo, graduated from the US Military Academy and served in the Military for five years, ending as a tank platoon leader. After a stint at Harvard to obtain a law degree, together with friends from the Military, Pompeo was funded in 1998 by venture capital contributors, including Koch Industries, to purchase an aerospace parts company in Kansas. After selling his interest in 2006, Pompeo moved on to become President of an oil equipment manufacturer partnered with Koch Industries, and with support from Koch Industries, a member of the House of Representatives.
Pompeo’s background is not in statecraft, international relations, or diplomacy. He is a former tank platoon leader in charge of the State Department. In accord with his formative experience, he approaches international relations as a zero-sum game, and threatens disfavored nations by confrontation and bullying. His approach to conflict resolution seems at loggerheads with the mission of his department and with Congress itself. For example, he was instrumental in the firing of the State Department Inspector General, Steve Linick, who was conducting an investigation into whether the administration had unlawfully declared an “emergency” to resume weapons sales to Saudi Arabia and the United Arab Emirates for war in Yemen.
Andrew Wheeler, the Director of the Environmental Protection Agency, was a lobbyist from 2009 to 2017, where he represented the coal producer Murray Energy, privately owned by Robert Murray, an avid supporter of President Trump. During his lobbying career, Wheeler opposed climate regulations for power plants and attempted to persuade the Energy Department to subsidize coal. Under his watch, the EPA has rolled back consumer and manufacturing protections and guidelines for automobile efficiency and pollution.
Alex Azar, Secretary of Health and Human Services (HHS), is a former pharmaceutical industry lobbyist and executive. From 2012 to 2017, Azar was President of the U.S. division of Eli Lilly and Company. During his tenure at HSS, Rick Bright, former Director of the Biomedical Advanced Research and Development Authority (BARDA), told Congress that his repeated early warnings (in January, 2020) about the coronavirus threat and supply shortages were rebuffed. At a Congressional Hearing, Bright said, “I was told that my urgings were causing a commotion, and I was removed from those meetings.” Apparently, warnings about the likely effects of Covid-19 did not jive with the administration agenda. Subsequently, Bright was transferred to a lower-level position at the National Institutes of Health. Had Bright’s warning been acknowledged by competent superiors, many thousands of lives may have been saved.
With few exceptions, such as Sonny Perdue the Secretary of Agriculture, top administrative appointees are political or business appointees. Their job histories suggest conflicts of interest with the legislative mandates and missions of their Departments. In fact, State Department, EPA, and HSS programs and mandates have been sidelined or reversed. Career employees have been disempowered. The Congress and public has been left out to hang. Unfortunately, this is often the rule with change of administrations. The wind blows one way, then blows another.
Redefining Roles of Senior Officers
The role of the President as Chief Executive is to execute the will of the legislature and the people as expressed in acts of Congress. The Constitution did not intend that he or his appointees have the power to sabotage congressional mandates or departmental missions established by law. He is not elected to be king.
Historically, the President may have required appointees to keep track of departmental budgets and progress. The rise of new technology, artificial intelligence, ease of reporting and record-keeping requires fewer, rather than more, appointees. Departmental budgets and progress can be efficiently reported by Federal career staff.
Current political appointees include Deputy Secretaries, Under Secretaries, Assistant Secretaries, Information Officers, miscellaneous departmental officials, and Departmental Attorneys General. At least three quarters of current political appointments can be eliminated and replaced by senior executive service career employees. The senior executive service career candidates who would replace “choke point” political appointees.
Senior executive service career employees are roughly at the same pay grade as Presidential appointees, but must pass rigorous evaluation for knowledge, experience, and administrative skill. As is the case for most Federal workers at present, hiring, advancement, and termination would be assessed by criteria designed to attract and retain the most qualified personnel. Thereby the bulk of political appointees would be replaced by merit-based personnel dedicated to their departmental missions. The replacement of appointees by senior executive service personnel would remove some of the sand from the gears of government.
The retained Presidential appointees would serve as the President’s “eyes and ears” to oversee and report on departmental and agency conformity to personnel practices, budgetary constraints, legislative mandates, and the like. A provisional list of appointees includes departmental Secretaries, agency directors, general counsels, inspectors general, members of boards and commissions, directors of selected independent agencies, and members of the executive office of the President.
The roles of appointees would be defined to harmonize with the career employees. For example, Department Secretaries would select senior executive service career candidates from rosters put forward by the Office of Personnel Management. In addition, Departmental Secretaries would possess the “bully pulpit”, meet with department and agency personnel, coordinate with other agency heads, and forward budget and policy recommendations to the President. But they would no longer be in a position to sideline departmental programs, intimidate career employees, or pepper departments with “moles”.
However, the list of appointees is compiled, appointments would be geared to promote information flows, identify redundancies and duplications of government services, promote interdepartmental cooperation, and managerial efficiency. Appointments would enhance the Presidential ability to evaluate the relevance and integrity of government departments in light of their purposes and legislative charges. In addition, the President through formal processes may direct departments to accord with their missions. He proposes the annual budget and makes recommendations to the Congress. Above all, he fulfills the will of Congress by promoting departmental morale and integrity, insuring conformance to lawful mandates, and encouraging efficiency.
Quarterly Departmental and Agency Reports
The shift to greater Federal departmental autonomy requires greater transparency of operations. Departmental openness and transparency of department expenditures and operations are essential for an informed legislature and democratic people.
The rules and regulations compiled by the Securities and Exchange Commission (SEC) for reporting by publicly traded companies provide a model for Federal departments. Just as listed companies must report quarterly and annual expenditures and liabilities, along with progress and problems concerning program implementation, so also departments of the Federal government would make quarterly and annual reports to the legislature and the public. When matters of public concern or interest arise, departments would be required to inform constituencies through press releases or newsletters. Thus, departments become educational vehicles, mission-oriented, program-oriented, and serve the public interest. The legislature directs, the departments perform. the Executive harmonizes.
Perhaps in tacit recognition of how opaque government has become through conflict of interest, overlapping mandates, and disempowerment, these proposals are consistent with numerous bills that have been enacted to make government accessible to the people. Among these acts are the 1966 Freedom of Information Act, the 2007 Honest Government and Open Government Act, the 2014 Digital Accountability and Transparency Act, and the 2019 Open Government Data Act as a part of the Foundations for Evidence Based Policymaking Act.
Conclusion & Summary
Currently the President is king, but a king with too many attendants, too many voices, often with little experience or little inclination to serve the interests of the departments to which they have been appointed.
The proposed streamling of the Executive Branch eliminates choke point and otherwise superfluous appointees. Consistent with Article 2, Section 2, significant administrative officials would select lesser officials and executives in accord with Office of Personnel Management criteria.
Federal departments or agencies would be held accountable through required standardized quarterly and annual reporting by career service employees. With required reporting, the legislature and people would know the real state of government and its conduct.
What is discouraged is the subversion of government by special interests or the peccadilloes of agendized cliques, who operate outside the consciousness or reach of the legislature or the public.The Executive branch would be put on notice to do its job. Dialog with established career employees of government would be necessitated. Enhanced departmental independence would encourage leadership sensitive to Congressional mandates and the will of the people, and discourage institutional misdirection and demoralization.
*Leland van den Daele, PhD, ABPP is Professor Emeritus of Psychology at the California Institute of Integral Studies in San Francisco, CA. He trained at the American Institute for Psychoanalysis (AIP) in New York City and has taught at University of Illinois, Rutgers University, Columbia University, and California School of Professional Psychology. Leland is a clinical psychologist with interests in culture, character, and social cohesion.