The Presidency and the Constitution

The Presidency and
Public Policy Making
Historical Overview
The framers of the Constitution did not intend to make
the president a major domestic policymaker. Article II
clearly establishes Congress as having the policymaking
power. The Congress is to legislate and the president is
to “take care that the laws are faithfully executed.” The
president is given authority to recommend legislation that
is necessary and expedient. However, nowhere in the
constitution is there an expression of intent that the
president will be chief domestic policymaker.
Yet this is precisely what has occurred. The president is
expected by citizens, groups, the parties, Congress, and
presidents alike to propose a legislative program and
use influence to make sure it is enacted. If the president
fails in this regard citizens hold the president
accountable through elections, approval, and historical
The framers did not envision the president as chief
domestic policymaker, but they did provide the president
some policymaking powers.
 Recommend necessary and expedient legislation
 Lattitude in the execution of the law.
These two prerogatives have evolved as the
Constitutional basis of the president’s policymaking role.
For the first one hundred years presidents 1)
recommended measures, 2) took positions on legislation
before Congress, 3) occasionally even drafted bills, but
4) did not formulate a cohesive domestic policy on a
regular basis.
By the 1880s there was a changing public sentiment
toward the role of the federal government in the US
system. This changed sentiment was brought on by
market competition carried to its extreme, and resulting
from the laissez faire policy and hands off approach of
the strict constructionist constitution.
Government promoted commercialism and industry as a
measure to develop the economy. However, “big”
business grew bigger and was able in many arenas to
dominate markets through monopoly. Business and
monopolists were quite arrogant about their price fixing
and efforts to monopolize. You might call it nose
thumbing when Standard Oil was created by the buying
out of 39 independent oil companies, virtually eliminating
economic competition. Likewise in the steel industry, the
ruthless behavior or Carnegie, Rockefeller, etc. virtually
eliminated small steel companies. Similarly in the
banking industry, J.P. Morgan attempted to create a
banking trust. The railway industry was similarly
arrogant, even after having been created by massive
public subsidies.
Popular calls for change emerged, but Congress, as it is today, was
fragmented, dominated by special interests, and lacking in policy
In 1886, Congress passed the Interstate Commerce act to address the
problem of rate discrimination by the railroads against farmers. This was
during the first Grover Cleveland adminisration (a Democrat). It was
amended in early 1887 to prevent the Republican president (Benjamin
Harrison) from failing to implement the legislation by placing responsibility
for implementation in an independent commission.
In 1890 during the Benjamin Harrison administration (a Republican),
Congress passed the Sherman Antitrust Act. Harrison signed the
legislation. Effectively, however, the Supreme Court gutted these
enactments based on a restrictive interpretation of the 10th amendment.
The legislation was not used in court cases for some years.
William McKinley (1897-1901) was also business friendly, leading to little
action to suppress monopoly practices.
Beginning with Theodore Roosevelt in 1901 and continuing through
Woodrow Wilson, presidential participation in the policymaking process
expanded. Roosevelt consulted frequently with Speaker of the House
Joseph Cannon. Cannon’s power as Speaker helped Roosevelt get
progressive era legislation through Congress.
Roosevelt’s legislative program was called the “square deal”. It included
legislation dealing with things from the Panama Canal to creating a National
Parks Service, to various conservationist measures.
Administratively, Roosevelt attempted to push a trustbusting strategy using the Sherman Act, but the Courts
restricted his ability to do so.
Pure Food and Drug Act of 1906 in reaction to the
excesses of the meat packing industry.
White Slave Trade Act of 1910- the Mann Act which
prohibited the shipment of Women in interstate
commerce for the purpose of prostitution and white
slavery. This was during the Taft presidency.
While he did not have the reputation for doing so, Taft
actually continued many of the policies from the
Roosevelt administration, including more vigorous efforts
at trust busting.
Hepburn Act gave the ICC the power to set rates in
interstate commerce.
Woodrow Wilson expanded the presidential role even
further. Wilson was a political scientist. He wrote a book
while a professor at Princeton entitled Congressional
Government. The book was descriptive, depicting
government in the US as primarily Congress centered.
The president was depicted as assuming a rather limited
policymaking role. Nevertheless, Wilson saw his
responsibilities as similar to those of the British prime
minister-to propose an integrated set of measures that
addressed social and economic problems and then to
use personal and political influence to see that they get
Wilson personally helped formulate a legislative
program, even drafting some legislation. He also often
went across to address Congress. He was the first
president since John Adams to personally deliver a state
of the union address.
Wilson’s legislative program was dubbed by publicists as
the New Freedom. It included labor measures, tariff
reform, and consumer protection.
He introduced legislation that created the Federal
Reserve System for the purpose of stabilizing the money
He also secured passage of the Adamson Act which
established the 8 hour work day for Railroad workers.
The Clayton Antitrust Act was intended again to reign in
monopolies and trusts and made illegal activities such as
price fixing, mergers that restricted competition,
interlocking directorates, rate collusion, etc.
He also oversaw the creation of the Federal Trade
Commission Act of 1914 which was intended to regulate
anti-trust and consumer protection. This was an
independent commission not under the direction of the
The Supreme Court continued to take a restrictionist
view of the expanded role of the federal government that
flowed from the progressive era. Gutted the FTC Act,
the Clayton Act, etc. as they pertained to anything other
than the federal level. A restrictive interpretation of the
10th amendment implied that the federal government did
not have the authority to regulate matters in intra-state
commerce or to interfere in the economies or affairs of
the states.
Wilson’s Republican successors, Harding, Coolidge, and
Herbert Hoover, did not seek to expand the president’s
policymaking role. Their conservative philosophy
undoubtedly influenced their conception of a limited
presidential role. A return to the normalcy of the 19th
century. Nevertheless several important regulatory
enactments occurred through this period, reflecting the
path of modern technology.
The Civil Aeronautics Board and the Federal Aviation
Administration. The Federal Communications
Commission. Federal Maritime Commission.
The depression did more to expand the president’s role
than any other single event.
The 19th century had seen numerous monetary panics,
runs on banks, recessions and mini-depressions.
However, in 1929 a major interruption occurred in the
market economy. It was of such proportions as to cause
panic among the mass public. 9,000 banks failed, and
when a bank failed in those days people lost everything
they had. GNP fell from $104 billion to $56 billion.
Business investment fell by 88 percent. Unemployment
grew from 3.2 percent in 1929 to 24.9 percent. 85,000
businesses failed. Wages and salaries dramatically
declined. People were literally going hungry.
Herbert Hoover took a basically hands off approach to
resolving the nation’s economic difficulties. Quote from
HH. “The evidence of our ability to solve great problems
outside of government action and the degree of moral
strength with which we emerge from this period will be
determined by whether the individuals and local
communities continue to meet their responsibilities.
Throughout this depression I have insisted on the
organization of these forces through industry, through
local government, and through charity, and that they
should meet this crisis by their own initiative, by
assumption of their own responsibilities.
The nation’s governors also generally advocated a
hands off approach early in the depression. Let me
quote one of them. “There is a tendency and to my mind
a dangerous tendency, on the part of the national
government to encroach on one excuse or another more
and more upon state supremacy. The elastic theory of
interstate commerce has been stretched to the breaking
point.” Franklin Roosevelt, Governor of New York.
Presidential leadership by Franklin Roosevelt
addressed many of the problems of the
depression. From this point onward, the
president was expected to be chief policymaker.
Banking Act of 1935- Centralization of the banking system and
federal regulation of depository institutions.
Federal Deposit Insurance Corporation-Insured bank deposits.
Securities and Exchange Commission-regulated the sale of
Agricultural Adjustment Act- payments to farmers to control
production and reduce acreage and competition, affect prices.
National Industrial Recovery Act- fair competition in specifying
wages and hours for labor and prices.
Civil Works Administration and Civilian Conservation Corpspublic works projects.
National Labor Relations Act- relations between management
and workers.
Social Security Act- old age assistance and disability insurance.
Roosevelt actively participated in designing a program
for bringing the nation out of the depression. Drafted
legislation, fought for that legislation in Congress. When
the Supreme Court struck down major components of
the New Deal, Roosevelt threatened to “pack” the court
with one new justice for every one that opposed the
Two Cases struck down the New Deal:
 Schechter Poultry Corporation vs. U.S. (1937)
 NLRB vs. Jones and Laughlin Steel Company (1937)
However, these two cases were reversed after
Roosevelt’s threat to pack the Supreme Court.
From here on, the locus of policymaking in the new
policy making system has been the president.
Presidents have been expected to be chief
policymakers. They are, however, constrained in their
time and attention. There are three demands on
presidential attention: 1) Ongoing operations of
government, 2) Crisis Management, and 3) Pushing the
President’s personal agenda, which may be rooted in
campaign promises. Because of these demands, the
ability of the president to personally set the policy
making agenda for the system is limited.
Nevertheless, every president from Truman through
Clinton has presented to Congress a legislative program.
When Eisenhower in his first year failed to present one,
he was soundly criticized so that he did submit one every
other year.
Presidents Roosevelt through Eisenhower expanded the
role of the federal government in the economic sphere.
Kennedy and Johnson expanded the role of the federal
government to include social welfare and civil rights
measures. Quality of life issues. Medicare and
Medicaid. Civil Rights Act of 1964. Equal Pay Act of
1963. Age Discrimination in Employment Act of 1965.
National Highway Traffic Safety Act of 1965.
Later, during the Nixon administration this social agenda
was expanded under a Democratic Congress, but with
the approval of the president. EPA, OSHA, CPSC, NRC,
Energy Department, OSM.
The 1960s were a period of unbridled prosperity and
economic development. However, the weakening of the
economy beginning during the early Nixon administration
produced new constraints. Higher inflation, greater
unemployment, declining productivity, increasing foreign
competition, and decreasing natural resources restricted
the ability of the federal government to address both
economic and social problems. The public’s mood also
shifted through this period into a more restrictive mode.
Presidents from Carter through Clinton actually
attempted to shrink the role of the federal government in
affecting the economy and in the area of social welfare.
However, government grew substantially during the
Carter through Bush I presidencies. Indeed, the federal
debt grew enormously during the Reagan administration.
Only Clinton was successful in shrinking the size of the
federal government, both in terms of personnel and
government expenditures as a proportion of GDP.
The size of the federal government has expanded
dramatically during the George W. Bush administration,
both as a function of the new Department of Homeland
security, increased defense spending, and the recent
expansion of Medicare benefits.
It would appear that the current administration lacks a
sense of fiscal constraint from expanding deficits and
These are matters that a future administration will be
forced to deal with, just as the current president Bush’s
father was forced to do following the Reagan
The OMB and Presidential
Presidents require staff support in order to be chief
policy makers. If policies cost money they need advice
from financial experts, in the OMB and Treasury
Department. If policies require a policy strategy they
need advice from policy experts. Much of this support
comes from the OMB and the line agencies. Other such
support comes from the Office of Policy Development
within the White House.
Exercising central clearance-Presidents in the modern
era have exercised clearance over initiatives originating
anywhere in the executive branch. This was initially
done in the Bureau of the Budget beginning in the
1930s. The OMB since 1970 has performed this role.
Any policy proposal emanating from the
executive branch that the OMB believes conflicts with
the president’s policy is not sent across to Congress.
In making their judgments the OMB uses presidential
campaign statements, major speeches and reports, and
special messages to Congress. If there is uncertainty,
the White House is consulted directly. Decisions are
usually final.
Presidents find this process to be useful, because it
produces coherent policy and centralized leadership. It
also takes some of the burden off the president in
assuring coherent policy.
Indicates those proposals with the president’s approval,
Makes departments and agencies aware of the president’s
Helps resolve interagency disputes.
Congress also finds the process to be useful since it
limits the number of executive branch proposals to be
From the standpoint of the departments the clearance
process represents a constraint and the OMB is the
policing agency. Operates today in much the same
manner as it always has. However, central clearance
under OMB is far more politicized than it was prior to
1970. Policy must be consistent with the prevailing party
ideology, and not just the president’s preferences.
This increased politicization of the clearance process
may also have led to illegalities. During the 1970s the
NHTSA had conducted formal rulemaking procedures to
require passive restraints for all auto manufacturers by
1982. The Reagan administration under the central
clearance process nullified this NHTSA rule. The
Supreme Court ruled that this was an unconstitutional
denial of due process. The Reagan administration had
to go through “contrived” rulemaking to nullify the rule,
which it ultimately did.
In addition to exercising central clearance for the
president, OMB performs a coordinating function. It
solicits and summarizes recommendations from the
executive branch on legislation that has passed both
houses of Congress, but not been signed by the
president. These may form the basis for presidential
After legislation has been passed by both houses, OMB
circulates copies of the legislation to all executive branch
units that are affected, as well as the White House. The
departments and agencies are given 48 hours to make a
recommendation to the president. Their
recommendations, accompanied by supporting
arguments and evidence, are then summarized by OMB,
which adds a recommendation of its own and sends the
entire file to the White House within the first 5 days of the
10 days the president has to sign or veto the legislation.
A similar process designed to solicit the views of White
House aides was begin in 1955.
Today, presidential decisions to sign or veto pending
enactments receive the advice of a plethora of
individuals with vast technical knowledge and diverse
perspectives. Of all the participants in the executive
branch, presidents are most influenced by OMB. OMB
recommendations to approve of legislation are almost
always accepted. On the other hand, OMB advice to
veto may be ignored if there is significant political
pressure from other fronts. Cole and Wayne find that
OMB recommendations to veto are followed only slightly
more than 50 percent of the time.
The role of the OMB was extended during the Carter
administration by the Paperwork Reduction Act. A new unit was
established in OMB, the Office of Information and Regulatory
Affairs, to administer the legislation. Initially its function was to
eliminate excessive reporting requirements by federal
regulatory agencies. Within one month after assuming office
the Reagan administration imposed an additional function on
this office.
EO 12291 under Reagan meant that all new regulations had to
be subjected to regulatory review and cost benefit analysis. In
1985, Reagan extended these duties to include all prerulemaking activities of the Departments and agencies.
In response, agencies diminished the number of new rules. The
number began to increase during the Bush administration.
The federal bureaucracy is required to analyze the costs and
benefits of any new rules estimated to have an impact of
greater than $100 million. These are called major rules.
The Clinton administration continued to use OIRA to
monitor agency regulations. Clinton actually expanded
the use of regulatory review by making the definition of
major rules more inclusive. Clinton also issued an
executive order in 1993 requiring agency officials to
disclose their contacts with interest group
representatives and requiring groups to issue their
opinion in writing on new regulations.The Clinton
administration charged Al Gore with coordinating its
regulatory priorities and agendas.
The current Bush administration has continued the
regulatory review process, claiming to increase its
stringency and to diminish the flow of new regulations
from administrative agencies.
Regardless, as a result of OMB and regulatory oversight
the president extends influence over bureaucratic
policymaking in the executive branch. This circumvents
the “iron triangle” relationships which existed in the 80s.
The Domestic Policy Council and the
President’s Annual Legislative Program
Satisfies the president’s need to articulate a program.
Satisfies Congress’s need to have an agenda upon
which activities are focused.
During the Truman and Eisenhower administrations BOB
coordinated the process through its annual budget
review. Collected ideas and sent to the White House.
The State of the Union address became the vehicle for
presenting policy proposals to Congress.
The president’s program tended to have a departmental
orientation prior to the 1960s. With Kennedy and
Johnson it tended to take on more innovative directions.
Resolving public problems that had heretofore been
ignored by the departments and executive branch.
Kennedy and Johnson bypassed OMB and set up task
forces of intellectuals, party activists, business and labor
leaders, experts, and political strategists in formulating a
legislative agenda. Under Kennedy and Johnson the
number of task forces increased, but their
recommendations to the president were secret.
The president’s domestic policies were first coordinated
by the Domestic Policy Office within the White House
beginning in 1965. The Domestic Policy Office was
charged with staffing Johnson’s task forces and then
reviewing their recommendations and converting them
into a legislative format, and executive order, or a
proposed departmental regulation.
Nixon institutionalized this arrangement by creating a
Domestic Council composed of cabinet secretaries and
supporting staff. Organized as a separate unit in the
EOP, the staff quickly assumed dominance over the
process. All domestic policy documents passed through
this office which was supervised by John Erlichman
during the Nixon administration.
The Domestic Council designs and coordinates the
president’s policies. The size of these staffs have varied
considerably depending on how active the president was
in promulgating new policies.
Ford reduced the role of the Domestic Council, but
Carter resuscitated it.
Reagan again reduced the role of the Domestic Council
to more or less administrative tasks, since he had no
intention of proposing new programs, but wanted to do
away with some old ones.
Bush had no well defined domestic policy agenda and
did not rely heavily on the Domestic Council.
However, Clinton did and revived this system.
Under President Bush, the Domestic Policy Council
oversees major domestic policy areas such as
education, health, welfare, justice, federalism,
transportation, environment, labor, and veterans' affairs.
The Office of National AIDS Policy (ONAP), the Office
of National Drug Control Policy (ONDCP), and the
Office of Faith-Based and Community Initiatives
(OFBCI) are also affiliated with the Domestic Policy
The Domestic Policy Council's formal membership
includes the cabinet Secretaries and Administrators of
federal agencies that impact the issues addressed by the
Models of Presidential Policy
Top-Down-The president is the innovator. The president
perceives and defines the public problem. Collects
information, develops proposals, designs a legislative or
administrative strategy, and exercises personal
persuasion to accomplish a policy goal. President
mobilizes public, interest group, and legislative support.
Example: Clinton and health care. Clinton made
campaign promise on reforming health care. Assigned
Hillary and a team of policy experts to formulate
recommendations, designed a bill which went to
Congress where the president put substantial energy
into passage. It failed as a result of a massive lobbying
campaign by the health care industry and opponents in
Congress. This case illustrates the peril of the top-down
Bottom-Up- The public or groups perceive and define a
public problem. Group aggregation and mobilization
occurs. This brings it to the attention of the president.
Information and proposals may flow from groups or the
president. Basically the president is in a responsive
mode in pushing the policy. Example: Environmental
politics in the 1960s. Disasters in Donora, Penn.
Congressional limited responses under Muskie. Nixon
and one-upmanship during 1970. Eventual passage of
the clean air act of 1970.
Stochastic Response Model-Focusing events shift
attention to the policy, and the president responds in a
sort of crisis mode. Example: Bush administration
response to 9-11. Here there was no plan by the
administration, or pressure from interest groups to place
more emphasis on homeland security. The president
was forced by virtue of events to respond to the crisis in
a way that would produce a greater sense of security in
Question: Would it have mattered who the president was
following 9-11 with regard to the nature and magnitude of
the response? It could be argued persuasively that any
president would have responded strongly to 9-11,
because the perception of crisis forced them to.
Evolution of the Plural Presidency
Prior to the 1970s the executive and BOB were relatively
oblivious to interest group influence. They operated in a
relatively closed style, with little public visibility.
Presidential advice was relatively impermeable to
external influence.
One response to Watergate and the closed Nixon White
House was to open up White House policy making to the
public and pluralistic forces.
Plural presidency concept. Following Watergate,
lobbyists began to contact the OMB and White House
directly. The White House began in turn to use interest
group and community leaders to help build support
By the mid-70s a separate office had been established in
the White House to accomplish the objective of
communicating with interest groups. The Office of Public
Presidents use interest groups to legitimize their policy
positions, improve their political status, build coalitions,
and extend representation and access to groups.
Positive aspect of the plural presidency. Extends
representation to a more micro level.
Negative aspect is the “revolving door.” Or, White House
officials leaving and going to work for private interests.
Innuendos of past favors. Michael Deaver, deputy chief
of staff for Reagan during his first term left the
administration to become a lobbyist. Later he was
accused of violating a federal conflict of interest law that
restricts contracts to former insiders.
To avoid the appearance of impropriety, President
Clinton requested that appointees take a pledge not to
have contacts with those with whom they worked in
government for a period of 5 years after they left public
President Bush has abandoned that policy.
Building an Agenda
Domestic policymaking, because of the massive
responsibilities, requires that the president limit the
number of items on the agenda, prioritizing those items
that achieve the president’s agenda, and cycling them
more effectively over the congressional calendar. Recall
the bank account versus political investment model.
Limiting the number of items on the president’s agendaThink of the president’s agenda as a space limited in
volume in which only a few issues can attain
prominence. This space includes foreign policy, the
symbolic presidency, as well as domestic policy. As new
issues arise, they must push old issues out of the space.
Issues come and go as a function of the personal
dimension the president brings to office (Johnson and
civil rights and poverty, Carter and the energy crisis,
Reagan and taxation, reducing the size of government,
Clinton and economic stimulus package, budget reform,
and health care). Bush II and …
Issues also come and go as a function of exogenous events
(Three Mile Island, Assassination attempt or Kansas City
bombing and gun control, 9-11 and domestic security).
Wise presidents limit the number of items occupying the
restricted agenda space. Helps presidents set the tone and
pace of the debate. Helps maintain public focus on
presidential initiatives. Contributes to the perception that they
are in charge.
Negative side to limiting agenda is that some will say that the
administration is not addressing the most important problems.
Cycling political issues- The administration’s priorities must be
cycled over the course of the congressional calendar. They
cannot wait to make initial proposals and cannot also inundate
Congress with proposals. Moving quickly is important:
electoral cycles, departmental pressures, and public moods
tend to decrease presidential influence over time.
Presidential discretion in cycling policy issues is limited
by 1) election campaigns, 2) the range of policy
alternatives being considered, 3) the political
environment, and 4) the type issue.
Election campaigns may move new issues into the
limited space and take old issues off.
Range of alternatives considered. If there is no available
alternative, it makes little sense to push an issue.
Abortion is an example.
Political environment shapes what might be acceptable
policy to address and appropriate solution.
Type issue-presidents have influence over some issues
more than they do on others. More influence over tax
policy than over agriculture policy where interest groups
are influential. Macro versus subsystem politics.
Presidents must package their domestic program
strategically by manipulating image and coopting as
much support as possible.
As strategists, presidents must discern the important
issues from the unimportant domestic issues. Success
is more likely if an issue is widely perceived as important
and there is consensus on the solution.
Presidents, as representatives of the general electorate,
need to maintain a national perspective. An ideological
framework may be useful, but it is more important to
frame issues in terms of the national interest.
Presidents also need to maintain a long range
perspective. Incrementalism versus long range
planning. Congress tends to make policy that is
incremental. The president must focus that
incrementalism toward a long range goals.