Public administration, executive power, and constitutional confusion

Abstract

This article examines the ambiguity in the meaning of executive power in both the text of the U.S. Constitution and in subsequent judicial interpretations. This ambiguity has had a profound impact on the constitutional position of the public administration. In the recent independent counsel case, the U.S. Supreme Court offered a restrictive interpretation of the President's constitutional powers to remove subordinate officers. This new interpretation could lead to increased congressional control over administrative agencies. The proper place and function of the public administration, unfortunately for the public administration, have been and remain inherently ambiguous because of the longstanding confusion about executive power in the Constitution of the United States. Richard Neustadt captured this ambiguity nicely when he noted that the two great themes that have characterized the American presidency have been “clerkship” and “leadership.”(1) There is no easy formula to bring clerks and leaders together to make them march in lock-step, and yet the President is clearly both. Today we may tend to emphasize his role as leader with imperial pretensions and Nixonian excesses still relatively fresh in our memories, but this is only a question of emphasis. No one denies that the President is a legally accountable officer who must do the bidding of the Congress. This is the clerkship side of the presidency. Herbert Storing counsels against any effort to cut the Gordian knot and to try to determine once and for all just what it is our President is supposed to be: clerk or leader. “The beginning of wisdom about the American presidency,” Storing maintains, “is to see that it contains both principles and to reflect on their complex and subtle relation.”(2) Following Storing's advice, this essay reflects on the inherent ambiguity of the executive power that provides the constitutional foundation of the public administration. First, we examine the text of the Constitution and the meaning of executive power at the time of the founding. Then we study the confusion that the Supreme Court has created in its efforts to draw practical conclusions for presidential personnel management from the constitutional grant of “the executive power” to the President in relation to the removal power. Third, we examine some of the recent problems of executive power that surfaced in Watergate and became salient in the important constitutional debate over the special prosecutors, those most unwelcome intruders into the inner precincts of the Reagan administration.