1. Q. In a recent article for the Journal of Law, Economics and Organization, Terry Moe and William Howell argue that: "Essentially ... the constitutional and statutory powers of presidents are fundamentally ambiguous, and that this sets the stage for a relentless (and usually moderate andincremental) brand of presidential imperialism that Congress and the courts cannot be counted on to stop – in part because their incentives don’t prompt them to want to, and in part because they both suffer from distinctive institutional weaknesses... [Congress] has also had a very difficult time responding when presidents have gone off on their own, and it has not done an effective job of protecting its own institutional interests."

Do you share the view that "Congress has not done an effective job of protecting" its interests? Do you have any thoughts on what Congress could/should be doing better in this regard?

A. Professors Moe and Howell advance a powerful and largely accurate model, particularly in its capacity to account for the balance of power between Congress and the President from the Nixon Administration through the end of the Bush Administration.. Nevertheless, I believe that the model requires some refinements and, lacking them, that it may misperceive presently prevailing conditions.

1. Given the extraordinarily high retention rates that members of Congress have enjoyed over long periods of time, the typical member of Congress would have to be superhumanly risk-averse to be so exclusively focused on his or her reelection. While reelection concerns are important, Members of Congress are also motivated by considerations that would tend to support an allegiance to the institutional interests of Congress. Prominently, members of Congress are motivated by considerations of their place or rank within Congress. Members will seek to secure positions on powerful committees, chairmanships of significant committees or subcommittees, and offices within the leadership of their party’s caucus. The value of these "plums" increases along with power of the institution and so tie, to some extent, the interests of members to the interests of the institution.

2. The article fails to appreciate corresponding incentives that can drive a wedge between the interests of a given President and the institutional interests of the Presidency. A particularly significant incentive is the President’s concern for his legacy. The Moe and Howell model assumes (p.136) that a President’s concern for his legacy will tighten identity of interest between President and presidency, because a President will seek to be regarded as having been a strong and effective leader. This consideration may lead a President to seek to maximize the institutional powers of the presidency. It is not, however, inevitable. And, under some circumstances, may predictably lead a President to cede power to Congress.

   Two important factors will predict whether a President will cede or augment the institutional powers of the Presidency. The first factor is whether the President sees his legacy in terms of accomplishing an affirmative domestic agenda, or instead sees his legacy in terms of either a negative domestic agenda or of foreign relations. By an affirmative domestic agenda, I mean an agenda that seeks to accord the federal government an active role in identifying domestic problems and goals and in resolving those problems and achieving those goals. By a negative domestic agenda, I mean an agenda that seeks to minimize the role and presence of government in domestic affairs. In terms of party, the Democratic Party has generally favored an affirmative domestic agenda, relative to their Republican counterparts, while the Republican Party has embraced a negative domestic agenda, relative to their Democratic counterparts.

   Because the President’s power of unilateral action is rather modest on the domestic side, a President who sees his legacy in terms an affirmative domestic agenda must secure the cooperation of Congress in order to be successful. A President who sees his legacy in terms of limiting the affirmative role of government in domestic affairs or in terms of foreign policy is not similarly constrained. On the domestic side, a President’s veto power will normally be sufficient to realize his agenda. Even as to existing authorities, a President need not secure enactment of a repeal. Instead, he could veto the appropriations necessary to continue the function. As to foreign affairs, the range of unilateral presidential authority is relatively expansive, in large measure because the Constitution’s text grants the President broad categories of authority but does not vest Congress with the sorts of power it does on the domestic side. Thus, a President who views his legacy primarily in terms of either foreign affairs or of a negative domestic agenda does not rely on the cooperation of Congress in the way that a President with an affirmative domestic agenda does.

   The second factor is whether the President’s party is in the majority in Congress. The President is acknowledged to be the leader of his party. One component of a President’s legacy is whether the President was an effective leader of his party. When the President’s party holds the majority in Congress, this consideration will lead a President to be relatively more accommodating. When the opposition party holds a majority in Congress, the President is apt to be relatively more assertive of institutional powers.

3. These two factors generate a matrix of four possible states of affairs. Each will predict a different balance of power between the branches.

   (A) The President has an affirmative domestic agenda and his party is also the majority party in Congress.

   (B) The President does not have an affirmative domestic agenda and his party is also the majority party in Congress.

   (C) The President has an affirmative domestic agenda and faces an opposition Congress.

   (D) The President does not have an affirmative domestic agenda and faces an opposition Congress.

   The thesis that the President enjoys advantages over Congress in the accumulation of power is generally accurate. The extent of those advantages, however, has been exaggerated by the circumstances that have typically prevailed in the last 30 years. From 1969 until 1995, the circumstances of American government have most often fallen into category (D). Here, Congress’s leverage over the President is at its low point. Neither his legacy nor his interest in supporting his party will lead him to cede power to Congress. Each, in fact, will lead the President to be aggressive in expanding his institutional prerogatives and to act unilaterally. This thesis applied most forcefully during the Reagan and Bush Administrations, each of which vigorously asserted the institutional powers of the presidency.

   The thesis is not nearly so powerful under current circumstances. 1995 marked a historic paradigm shift. Not since the administration of President Truman had a Democratic President faced a Republican Congress. Even then, Truman’s focus and legacy can be understood as having emphasized foreign affairs and national security (the Korean War, the Marshall Plan, and Soviet containment). The currently prevailing circumstance — of a President whose legacy rests mainly on an affirmative domestic agenda facing an opposition Congress — has no obvious modern analogy.

   Viewing the circumstances in the abstract, there is reason to believe that Congress’s leverage over the President will be at its maximum. First, the President needs congressional cooperation to achieve any significant component of an affirmative domestic agenda. This element alone will incline a President to yield significantly on institutional prerogatives. For example, even when President Clinton did not face an opposition Congress, he made significant concessions. In order to secure the support of certain members of Congress for his health care reform measure, President Clinton signed legislation making the Social Security Administration an independent agency. Thus, he relinquished authority over this significant executive agency leaving it subject exclusively to congressional control through oversight and appropriations.

   Second, an opposition Congress does not have political incentive to assist the President. Moreover, insofar as the Congress’s domestic agenda is not affirmative, it can stalemate the President by declining to fund government operations at levels in excess of the preceding year. Indeed, there is precedent for Congress funding the federal government for an entire fiscal year through a continuing resolution. In light of these factors, it is not surprising that President Clinton has allowed substantial control over his constitutional appointment power to flow to the opposition in the Senate. Notwithstanding these factors in its favor, Congress can overplay its hand. The government shutdown was an example of Congress overestimating the extent of its advantages, which is not to deny the existence of a relative advantage.

2. Scholars Moe and Howell argue in their article for the Journal of Law, Economics and Organization that it is wrong to say that the Congress makes the law and the President executes them -- as if to imply that the President is an agent of Congress. Instead, they argue that the President is "an independent authority under the Constitution, and thus has an independent legal basis for taking actions that may not be simple reflections of congressional will." Can you discuss your view of the "gray area" that exists between the realms of lawmaking and law-executing?

At the general level at which you pose the question, I do not think I can improve upon Justice Jackson’s famous albeit enigmatic pronouncement in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).

The Moe and Howell article, in the passage the question cites, also contends that the Congress is required to rely upon the President to act as its executive officer and has no ability, outside of impeachment, to remove him. In fact, Congress has other options. It can vest many functions in independent agencies. Congress can also assign executive or administrative authority to the states, private parties, or international organizations. In fact, it frequently does so. Examples include, welfare reform, the qui tam provisions of the False Claims Act, and the World Trade Organization.

The determination of whether to employ one of these alternatives to the President should be made on a case-by-case basis. Some authorities and functions are best insulated from the President’s supervision, such as control over federal monetary policy, while others are best left subject to accountability through the President, such as the functions of the Federal Bureau of Investigation and the Department of Justice generally.

3. Some scholars argue that the fact of presidents acting unilaterally to "make law" has been reality throughout the history of our country, but that the power of presidents in this regard has grown in recent history and has become more significant. What factors do you believe account for this trend? Do you see the trend as a positive or negative development from the perspective of the institutional prerogatives of the Congress, or just a neutral fact of modern life?

Phrasing the inquiry this way begs the question, significant for what purpose? In many respects the President’s lawmaking power seems less significant than it once did, at least outside the context of foreign affairs. No modern President has issued an executive order of the moment of Abraham Lincoln’s Emancipation Proclamation, or of Theodore Roosevelt’s establishment of the system of national parks, or of Andrew Jackson’s effectively repealing the Bank of the United States by withdrawing all federal deposits.

Certainly the number of occasions of presidential lawmaking has increased, even multiplied. But this increase directly corresponds to the increase in congressional lawmaking. As I explained in my statement, an increase in presidential discretion is inevitable and even desirable whenever Congress enacts legislation. Viewed relative to the power of Congress, the increase in the President’s lawmaking power may not be significant at all. Indeed, this is the perspective that is relevant for separation of powers purposes. The Constitution looks to a balance of power between the branches. The increase in the President’s lawmaking power derives from Congress’s decision to expand its legislative reach. Insofar as this is the case, the power of each institution relative to the other remains roughly in balance. From the standpoint of the Constitution, then, this is a positive development.

Foreign affairs may present a different picture. As the world becomes more integrated, the President’s power to respond may increase without Congress exercising a corresponding power. Such a development would be harmful from the standpoint of the interbranch balance of power. But such a development is not inevitable. Congress possesses the power to regulate foreign commerce and should use this power to set the policies that govern how the President responds to changes in the global economy. The President should be given discretion to respond to crises and developments in this sphere, but that does not preclude Congress from setting forth in statute the mechanisms that the President may use and the conditions under which he may use them. In this way, Congress can establish the policies that govern the nation’s participation in the global economy, which role the Constitution plainly assigns to Congress.

5. What role should the public play in this tension between the President and the Congress? Is the system set up well enough to ensure that the people have enough information about executive orders and their impact to make their preferences known? What is the obligation, in your view, of the two branches with respect to transparency of executive orders and their impact?

It is unrealistic to expect the public to play an important role in policing the balance of power between Congress and the President. If the public supports the substance of a given executive order or, to turn the tables, an oversight hearing, it is difficult to imagine the public objecting on the abstract grounds of separation of powers. In this respect, separation of powers is similar to federalism. Support for the abstract principle tends to evaporate when it impedes realization of desired concrete policy objectives.

The Constitution looks to each branch to act as the guardian of its own constitutional domain. In doing so, however, each branch may usefully appeal to the public. If a regulatory regime is not sufficiently popular to secure its enactment as ordinary legislation, there will be a ready reservoir of opposition for Congress to draw upon should the President attempt to promulgate the regime through an executive order. In this connection, interest groups that oppose the order can be especially effective. For example, the opposition of the national Governors’ Association was a significant factor in the President’s decision to rescind his initial executive order on federalism.

Transparency is an important value in government generally. It allows the public to exercise its democratic powers and responsibilities effectively. Yet, transparency may not always be possible. For instance, it is often crucial that executive orders, and the deliberations leading to their promulgation, dealing with national security remain secret.

6. What is your view of the practice of Congress passing legislation after the fact to sanction an executive order that has already been implemented? Do you believe this enhances or erodes the legislative prerogatives of Congress?

In general, passing legislation that formally repeals an executive order, or that achieves the same effect by denying appropriations to enforce the order, will enhance the institutional prerogatives of Congress. Insofar as Congress increasingly asserts its institutional prerogatives, the President can be expect to assert his institutional prerogatives correspondingly. Whether Congress best maximizes its power and influence over federal policy through the inevitably confrontational course of asserting its prerogatives or through cooperation and accommodation with the President will depend upon an intricate and context-bound political calculation.

7. In your testimony you make the point that you believe Congress is "amply equipped" to protect its turf. Would you also conclude that Congress makes proper use of the tools it has available to guard its prerogatives?

There is a remarkable symmetry between the executive and legislative branches. This is anticipated and encouraged in the Constitution’s design. The Constitution expects that each branch will attempt to encroach upon the other. The Constitution arms each branch to protect itself against the encroachments of the others and looks to each branch’s instinct for self-preservation as the primary guardian of the separation of powers.

On the whole, both Congress and the President make proper use of their respective powers of self-protection. Your question focuses on Congress, so that is where I will focus my answer. At least with respect to matters of domestic policy, Congress seems to protect its turf effectively from unilateral executive branch encroachment. It is true that the historic record reveals some dramatic examples of unilateral executive action: Jackson withdrawing the assets of the Bank of the United States, Lincoln’s Emancipation Proclamation, Theodore Roosevelt establishing the system of national parks, and Lyndon Johnson adopting the first affirmative action program. These examples are dramatic, in part, for how aberrational they are. One scans the Code of Federal Regulations in vain to find a similar example from a recent administration.

The Clinton Administration has yielded at most two possible significant executive orders relating to domestic policy: the executive order banning federal contractors from permanently replacing lawfully striking employees, and its initial order on federalism. A careful reading of President Clinton’s executive order on federalism does not disclose how it would have worked any meaningful change from its predecessors, much less an objectionable change. The striker replacement order could have had appreciable and possibly significant results, but this was not its inevitable course. In any event, neither order was ever put into actual operation.

Each branch makes occasional misuse of its constitutional powers and in doing so encroaches upon the other. This has been a bipartisan exercise. Under both parties, congressional committees have, on occasion, exercised their oversight and investigative powers to coerce executive without even a fig leaf of a legitimate congressional purpose. Presidents of both parties have also made extreme claims to unilateral war powers. The exercise of such powers is especially pernicious because Congress is put in the position of either acquiescing in the President’s decision or denying support for US troops engaged in military combat and undermining the position of the united States in the international community. The most proper course for Congress is to act before the President deploys troops or, failing that, to respond after the fact with appropriate legislation.

8. You state that it is your view that Congress should "repeal or amend executive branch lawmaking whenever it disapproves of the executive branch’s rules." This statement suggests that the result you advocate is one that is easy to achieve. It takes a 2/3 majority of the Congress to accomplish such action, making it likely that in reality it will not occur that often. Please comment on that point.

If Congress were to respond to an executive order in the most straightforward manner -- by drafting a bill to repeal the order and passing the repeal -- the President would surely veto the repeal. Consequently, such a straightforward repeal would become effective only if Congress were to override the veto. By constitutional design, congressional override is extraordinarily difficult to accomplish. Thus, limiting our consideration to straightforward repeal, the question implies a valid rejoinder to my testimony -- Congress cannot effectively respond to an executive order by enacting a straightforward repeal.

Congress, however, has a number of effective arrows in its quiver. Rather than a straightforward repeal, it can attach a rider to appropriations legislation stating that no funds may be spent to enforce the executive order. No executive order can be enforced without the expenditure of at least some funds. If an executive branch functionary spends even a minute considering the order, some funds -- in the form of the functionary’s salary prorated for one minute -- will have been expended. If done in contravention of an appropriations rider, this would violate the Antideficiency Act and, if done wilfully, would be a crime. The President might veto an entire appropriations bill in order to preserve an executive order. The order would have to be popular enough to allow him to avoid blame for shutting down the agencies of the government covered by the appropriations bill. If the rider were attached to, say, the Defense Appropriations Act, it would be very difficult to justify a veto on the basis of preserving the typical executive order.

Congress can also achieve the repeal of an executive order through the time-honored method of legislative compromise. The President may be forced to bend to Congress’s will and repeal an executive order as a condition for the enactment of some other piece of legislation that the President supports. This is precisely what occurred in the recent controversy over funding for international family planning organizations that promote abortion rights. President Ronald Reagan had issued an executive order prohibiting grants from being made to such organizations. President Clinton rescinded the Reagan order. Congress required President Clinton to agree to, in essence, rescind his rescission of the Reagan order as a condition for receiving the United Nations funding he had fervently sought. The effectiveness of this approach will depend on the specific political setting that prevails at the time of the proposed compromise. Where a President views his legacy mainly in terms of achieving an affirmative domestic agenda, as has President Clinton, Congress will be in a strong position to force the President to rescind or amend executive orders that Congress finds problematic.

9. You make the very valid suggestion that Congress should be more vigilant in exercising oversight on existing statutes and ensuring that it understands the manner in which legislation interacts. Given the balkanized jurisdiction that exists among the committees of Congress, do you believe that Congress is currently well-equipped to meet that challenge?

Balkanized committee jurisdiction can represent an obstacle to effective oversight. There are committees with jurisdiction broad enough to detect collisions between legislative regimes. The Government Reform and Oversight Committee, for example, could perform such a function. The most significant obstacle to its doing so stems from priorities; the committee has chosen to focus on investigations rather than on oversight.

Moreover, Congress need not take the initiative in detecting problems that arise from overlapping statutes. As most legislation involves some enforcement by a federal agency, this sort of information should already be available to the various agencies of the federal government. A congressional committee or subcommittee could require all federal agencies to report problems arising from statutory interactions. Inasmuch as such interactions lead to executive branch lawmaking, this subcommittee could properly assert jurisdiction to require such reports.