We Can’t Wait (Except When We Can)

Apr 23 '12

This weekend, former Nixon staffer Charles Colson died at the age of 80. Colson was, of course, well known for his Watergate-related crimes (as well as for his subsequent turn to Christian ministry) but it is worth noting too his contributions to what has become known as the “administrative presidency.”

In Nixon’s day a number of strategies were developed to enhance presidential control over the wider bureaucracy. Among other initiatives, an early version of regulatory review was essayed, and the Bureau of the Budget was transformed into the Office of Management and Budget. In the new OMB, the White House hoped, management was supposed to mean (in John Ehrlichman’s wonderful phrase from a 1972 memo) “get[ting]-the-Secretary-to-do-what-the-President-needs-and-wants-him-to-do-whether-he-likes-it-or-not.”

Further, especially in the second term, there was an explicit plan to take administration appointments far more seriously in terms of systematic evaluation of appointees’ responsiveness and loyalty to the president rather than simply on their managerial abilities. This involved outreach to “ethnic” voters (as opposed to WASPs) and others who had traditionally leaned Democratic, in hopes of consolidating a “New American Majority.”

Here Colson was a very important player. In a typical memo (see here for page 1, and here for page 2) from early 1973 I unearthed at the Nixon Library last summer, Colson disparages the aim of looking only for “the best-qualified people.”  Instead, he urges the appointment of “true believers” who can “really rock the boat” and who “are dedicated to the President…and to the social and political goals he has set for the country.” (Colson also warns that the White House had better “be absolutely sure that [the prospective appointees] are in fact Italians. We’ve been burned that way before.”)

Nixon’s efforts, thanks partly to Watergate, stalled – they were, in the end, (in SUNY’s Richard Nathan’s phrase) “the plot that failed.”  But future presidents, seeing its potential, helped the plot thicken. Presidents Reagan (see Nathan’s The Adminstrative Presidency), Clinton (see Elena Kagan’s Harvard Law Review novella, “Presidential Administration”), and George W. Bush (see many sources, including my own The New Imperial Presidency) were key contributors.  Or, simply see today’s banner New York Times story pointing out Barack Obama’s new(ish) acceptance of the desirability of executive action (complete with a front-page quote from University of Chicago political scientist Will Howell).

The story notes a number of the unilateral actions taken by the administration ranging from the interpretation of statutorily delegated power to the January recess appointments that sought to redefine what counted as a legislative recess. It is perhaps worth noting that uncovering these particular actions did not require the coded movement of flowerpots or clandestine meetings in DC-area parking garages. After all, the administration has put out numerous press releases trumpeting these moves, and even has a section of the White House website dedicated to the “We Can’t Wait” agenda. Still, I will never complain about prominent coverage of issues of presidential power; and in other reporting, Charlie Savage has shown that Obama’s actions in this arena are more extensive still, especially as extended to the war power and related issues of due process.

The piece also usefully notes Congressional acquiescence to presidential expansionism. Sometimes this is by inaction, which leads to acceptance and thus to precedent; sometimes by explicit endorsement. Sometimes, too, presidents re-purpose old law to suit new priorities. For instance, the Obama administration’s aggressive prosecution of leakers has been conducted at least in part under the auspices of the Espionage Act of 1917, still on the books. More benignly, perhaps, his recent proclamation designating 15,000 acres of wilderness around California’s Fort Ord as a national monument springs from authority granted by the Antiquities Act — itself an antique dating from 1906.

All this might have pleased Chuck Colson. Even so, it is worth noting that unilateral action is itself hardly unconstrained (and perhaps not always truly unilateral). Consider last week’s accounts of President Obama’s urging legislative action – the passage of the Employment Non-Discrimination Act (ENDA) – as an alternative to his issuing an executive order prohibiting federal contractors from discriminating on the grounds of sexual orientation (see here and here.)  Here, buffeted by election-year winds, the president has discovered what John F. Kennedy did in 1961 when faced with a parallel order seeking to prevent housing discrimination. Namely — sometimes, we can wait!  When, and how long, is likely subject to the same sorts of calculations, contexts and constraints as those governing presidential actions in other areas.