Madison’s Ratchet: Ambition Counteracting Ambition and the Aggregation of Political,Managerial,and Legal Controls Over Federal Administration

Abstract

In Federalist 47 and 51, James Madison contended that the accumulation of legislative, executive, and judicial powers in the hands of one body or person would produce tyranny. He explained that one defense against such tyranny was to make “ambition . . . counteract ambition” by giving each of the three constitutional branches of the federal government the “means,” “motives,” and wherewithal to “resist encroachments” on their powers by another. However, after the development of the contemporary administrative state in the 1930s, rather than serving as a check against encroachments alone, the process of ambition counteracting ambition prompts each branch to develop its own set of controls over federal agencies without necessarily trenching on the powers of the other branches. “Madison’s Ratchet” is the tendency for these controls overwhelmingly to aggregate and thereby vastly complicate federal administration.

Keywords

U.S. public administration federal administrative management political and administrative power James Madison ambition

Introduction

In Federalist 47, James Madison, the leading architect of U.S. constitutional separation of powers doctrine, contended that the accumulation of legislative, executive, and judicial powers in the hands of one body or person would be “the very definition of tyranny” (Cooke, 1961, p. 324). In Federalist 51, he explained that “ambition must be made to counteract ambition” by “giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments from the others” (Cooke, 1961, p. 349). He counterbalanced his concern for the potential aggregation of powers with the observation that the practicalities of governance dictate that legislative, executive, and judicial powers are not entirely separated, but rather blended. The separation of powers doctrine is not absolute. Rather, it maintains, “Where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted” (Cooke, 1961, p. 325). Consequently, subordinating federal administration to Congress, the president, and the judiciary is consonant with constitutional separation of powers theory and serves to protect against both bureaucratism and the concentration of all administrative authority in the president.

Madison was largely concerned with the ability of each branch of government to check encroachments on its own powers by the others. As with the Constitution’s framers generally, he did not anticipate the rise of a powerful federal administrative component that, as former Supreme Court Justice Robert Jackson noted, “would become a veritable fourth branch of the Government, which has deranged our three-branch legal theories” (Federal Trade Commission v. Ruberoid, 1952, p. 487). In response to the emergence of this new power center during the New Deal era, ambition counteracting ambition has prompted each branch to expand its own powers over the “fourth branch,” often augmenting rather than limiting those of the other branches.

As Paul Light (1997) observed, administrative reforms since 1945 cannot always be viewed as though the separation of powers is a zero sum or hydraulic model. One branch may initiate reforms that strengthen the power of another. Overall, Light finds both the presidential and congressional roles in federal administration have been strengthened—and the same holds true for the federal courts (Rosenbloom, O’Leary, & Chanin, 2010). Rather than serving as a checking dynamic alone, ambition counteracting ambition has promoted an expansion of the aggregate political, managerial, and legal controls exercised by all three branches over federal administration. This effort by each branch to maintain a substantial degree of direction over the decision making, procedures, and overall operation of federal agencies by imposing extensive and aggregating controls on their behavior can be referred to as “Madison’s Ratchet.”

This purpose of this article is to connect Madison’s theory of ambition counteracting ambition in Federalist 51 with how federal administration became subject to extensive political, managerial, and legal direction by the three constitutional branches of government. We apply Madisonian constitutional theory in an effort to expand our understanding of how separated, shared, blended, and overlapping power affects federal administration, the administrative presidency, Congress’s role in shaping and directing the administrative state, and a degree of judicial “partnership” in administrative matters (Bazelon, 1976).

The American Constitution and the Blending of Power

The blending of constitutional power among the legislative, executive, and judicial branches of government serves as an important, practical way for the federal government to manage its constitutional obligations. It allows each branch to check the powers of the other two, preventing the aggregation of powers that concerned Madison. At the same time, it also allows for each branch to harness ambition to counteract ambition as a means of ensuring limited encroachment. However, in and of itself, the separation of powers does not limit the expansion of federal governmental power as a whole. Paradoxically, although the U.S. government is one of limited enumerated powers, its president, Congress, and courts are among the most powerful executive, legislative, and judicial institutions found in democracies worldwide. To appreciate this paradox fully, it is worthwhile to underscore exactly what the Constitution prescribes regarding the blending of power among the three branches of government. It is precisely due to this blending that “under our system of divided powers, the executive branch of the national government is not exclusively controlled by the President, by the Congress, or by the courts” and “all three have a hand in controlling it, each from a different angle and each in a different way” (Merriam, 1939, p. 131).

First, the Constitution vests the veto power in both the legislative and executive branches (Article 1, Section 7). The president can veto legislation Congress submits for his approval. With a two-thirds majority, Congress can override presidential vetoes. When the president vetoes a bill, he must list his objections to it. By contrast, when Congress has a two-thirds majority to overturn a presidential veto, it does not have to state its reasons because it has already debated the proposed bill in both Houses (Article 1, Section 7). Both branches share the veto power, but exercise it in ways that reflect their constitutional role.

Second, the president has important legislative functions. When the House and Senate are in recess, the president can convene Congress if significant events occur that merit attention by both the legislative and executive branches. The president can also adjourn Congress if the two Houses cannot agree “with Respect to the Time of Adjournment” (Article 2, Section 2). As a matter of principle, convening and adjourning Congress is a legislative function that the Constitution authorizes the president to perform. The framers understood that in a separation of powers system, the bicameral legislative process would be considerably more cumbersome than in a parliamentary model of government. As such, the president often recommends legislation to Congress either in the State of the Union Address or otherwise, which serves as an important legislative function typically performed with the participation of executive branch agencies.

Third, the Constitution established judicial and executive functions for the Senate (Article 1, Section 3). The power to try all federal impeachments is vested exclusively in the Senate (Article 1, Section 3; see Nixon v. United States, 1993). The Senate serves an executive function when providing advice and consent to treaties with other nations made by the president (Article 2, Section 2). The Senate’s advice and consent is also required for the confirmation of nonrecess appointments of ambassadors, federal judges, and the principal officers of executive branch agencies (Article 2, Section 2; see National Labor Relations Board v. Noel Canning, 2014).

One of the most important areas of constitutional focus since the 1960s has been the Constitution’s requirement that both Congress and the president share military and wartime powers (Article 1, Section 8; Article 2, Section 2). The Constitution affords Congress the power to declare war, raise and support armies, maintain a navy, and to summon the militia for three purposes: to execute the nation’s laws, to suppress insurrections, and to repel invasions. The Constitution also charges Congress with the responsibility of organizing, arming, and disciplining the militia. Nevertheless, the president is the Commander-in-Chief of the U.S. Army and Navy and when Congress calls on the militia for national defense, the president commands all military operations. The framers by no means intended for all military affairs to be initiated, organized, and implemented by the president or members of the executive branch without the consent and approval of the legislative branch. These constitutional powers are blended so that neither the president nor the Congress can exercise exclusive control over the nation’s military, especially during times of war (see Hamdi v. Rumsfeld, 2004). The framers blended governmental powers in this way to require coordination and collaboration, as well as balance, between the president and Congress. The need for interbranch cooperation is one feature of the constitutional design that deters encroachments by one branch on the powers of another.

Federalist 51: “Ambition Must be Made to Counteract Ambition”

In one of the most famous constitutional commentaries, Federalist 51, Madison expounded on maintaining the separation of powers among the branches of government. He posited that the best way to protect against the accumulation of powers in one branch of government was to tie the personal interests of those exercising the powers of each branch to resisting encroachment on their constitutional authority by another. Connecting the interests of the power-holder with the constitutional rights of the government function would constitute the essential ingredient of making ambition counteract ambition (Cooke, 1961, p. 349).

Yet, Madison maintained that each branch of government would not have equal powers of self-defense against the others in the contest of ambitions. He argued that the legislative power of self-defense was stronger than that of the executive. The remedy for this was to create a bicameral Congress to fortify the executive by posing a hurdle to unified legislative action. Although he was not explicit about what a fortified executive would entail, Madison argued this would create a government where “a double security arises to the rights of the people. The different governments [state and federal] will control each other, at the same time that each will be controlled by itself” (Cooke, 1961, p. 351).

The rise of the contemporary administrative state, however, added another dynamic to the Madisonian separation of powers. Once federal administration became a major center of power engaged in legislative, executive, and judicial functions, including rulemaking, implementation, and adjudication, ambition counteracting ambition prompted Congress, the president, and the judiciary to develop and exercise controls over how agencies perform these functions, especially as they are associated with each branch’s constitutional responsibilities (Rosenbloom, 1983, 2001). Rather than just a defense against encroachments, these controls have often taken the form of proactive attempts by Congress and the president to direct administrative activity as a means of facilitating their primary constitutional responsibilities of legislating and faithfully executing the law, promoting institutional values associated with those responsibilities, and achieving substantive policy objectives. For example, Congress uses administrative law to regulate agencies’ rulemaking, adjudicatory responsibilities, and open government procedures as well as to mandate protections for specific concerns such as environmental sustainability and the viability of small businesses. Relying largely on executive orders, presidents similarly mandate a variety of procedural requirements for agency decision making and management while also promoting policy objectives including, for instance, vibrant federalism and environmental justice (Executive Orders 12612 [1987] and 12892 [1994]). Although the judiciary is necessarily reactive rather than proactive in a formal sense, federal court decisions have required agencies to adhere to a broad variety of constitutional standards in dealing with their own employees and the public, including measures for procedural due process and equal protection that reach deeply into administrative management and program implementation (Rosenbloom et al., 2010). The tendency is for controls over administration to be additive. For example, the emergence of the president as “administrator in chief” during the New Deal and World War II era prompted a strong effort by Congress to enhance and, to an extent, redefine its roles in the constitutional separation of powers (Rosenbloom, 2000). In 1946, it enacted the Legislative Reorganization Act (LRA) to improve legislative oversight of the agencies and the Administrative Procedure Act (APA) to structure their rulemaking, enforcement, adjudication, and transparency (Rosenbloom, 2000). Robert Cushman’s (1936) assessment that independent regulatory commissions constituted the “headless fourth branch of government” because they were not accountable to either Congress or the president is a formative example that illustrates the overall context in which both the president and Congress sought to exercise greater controls over agency decision making, procedures, and activity without necessarily encroaching on one another’s powers. Ambition counteracting ambition without encroachment was similarly illustrated by Congress’ creation of the Congressional Budget Office in 1974 in the wake of the president’s establishment of the Office of Management and Budget (OMB) in 1970. As noted above, the federal courts have also developed a strong role in regulating administrative behavior.

The accretion of controls on federal administration imposed by Congress, the president, and the federal courts deeply affect what agencies do, when they do it, and how they perform the functions associated with their missions. Whether characterized as “red tape,” “administrative ossification,” or “democratic-constitutionalism,” these controls add procedural and substantive requirements to administration as well as public values to the mix of what agencies must consider in rulemaking, adjudication, enforcement, contracting, collecting and releasing information, human resources management, budgeting, and many other activities (Kaufman, 1977; Pierce, 2014; Rosenbloom, 2015). Madison’s Ratchet—the additive character of requirements that administrators must meet—is substantially a product of the institutional ambitions of each branch to exercise direction of federal administration by imposing procedures and controls on agencies and whatever else it does, it makes federal administration increasingly complex.

Presidential Ambitions: The Rise of the “Administrative Presidency”

The field of U.S. public administration can trace the rise of the “administrative presidency” back to the expansion of the federal bureaucracy that came with Franklin D. Roosevelt’s executive leadership and the creation of the New Deal. Under Roosevelt, both the size and scope of the federal bureaucracy grew exponentially. Federal employment jumped from 600,000 employees in 1930 to nearly 900,000 by 1937 (Light, 1995, p. 1). During this time, the federal budget increased tenfold, and Congress added over 60 new agencies to the executive branch (Light, 1995, p. 1). Concomitant with this growth, the number of political appointees increased to about 300,000 while the percentage of federal civilian employees covered by the merit system dropped from 79.7% in 1933 to 60.5% in 1936 before it began to rise back to over 70% by 1940 (Rosenbloom, 2014, p. 78). These rapid changes not only left federal budgeting and personnel administration in disarray but also left Congress wondering how it fit into the separation of powers, if at all (Rosenbloom, 2000).

Neither could the judiciary have missed the threat to its position in the separation of powers when Roosevelt revealed his 1937 “court packing plan,” which sought to expand the size of the Supreme Court from nine justices to up to 15 in an effort to establish a firm majority supportive of the constitutional interpretations of the Commerce Clause on which key New Deal policies and programs rested. Marking the first time since the Marshall Court over a century earlier that any president sought to dismantle the Supreme Court’s institutional foundations and constitutional stature to obtain policy objectives, the plan was a public relations failure and ultimately moot after Justice Owen Roberts became more supportive of the constitutionality of New Deal policies, thereby creating a majority of justices accepting of them.

The 1937 U.S. President’s Committee on Administrative Management (PCAM) strongly advocated for the administrative presidency (Karl, 1963; Newbold & Terry, 2006; Polenberg, 1966; Rohr, 1986). President Roosevelt created the PCAM, led by Louis Brownlow, Charles Merriam, Luther Gulick, and Director of Research Joseph Harris, to recommend reforms of the chaotic and unorganized bureaucracy that had developed during the New Deal. Although the intellectual history of U.S. public administration focuses on the PCAM’s managerial recommendations for strengthening the presidency, Newbold and Terry’s (2006) comprehensive analysis of the five accompanying studies written by senior scholars and practitioners appointed to the PCAM to research personnel administration, fiscal management, independent regulatory commissions, administrative management, and rulemaking and proposed legislative measures illustrate that an even broader PCAM goal was to improve democracy within the American constitutional republic (see also Newbold & Rosenbloom, 2007). Every recommendation found in the Final Report President Roosevelt submitted to Congress in January 1937 comes directly from these five official documents. The PCAM’s Report famously argued that “the President needs help” (Brownlow, Merriam, & Gulick, 1937, p. 5) in performing his constitutional functions and predictably recommended placing the federal bureaucracy under much stronger unified presidential control while reducing congressional involvement in administration.

Congress’s limited role, according to the Report, was to create and fund agencies and perhaps evaluate their performance at long intervals (Brownlow et al., 1937). The Report contended that, as then constituted, Congress was too disorganized effectively to utilize its constitutional authority to oversee the operation and management of federal administration, but through appropriate legislation could facilitate the PCAM’s efforts to establish an administrative presidency. The Report provided Roosevelt with the formal recommendation he needed to bypass legislative input in implementing many of his New Deal initiatives. According to the PCAM, Congress essentially needed to get out of the president’s way in fulfilling his constitutional responsibility to manage the execution of the laws faithfully. Unsurprisingly, the legislative proposal based on the Report was initially denounced in Congress as the “dictator bill” (Karl, 1963, p. 24).

Two years later in 1939, however, Roosevelt did manage to win passage of the Reorganization Act, in which Congress authorized the president to reorganize administrative agencies, subject to legislative veto. Relying on the act, Roosevelt established the Executive Office of the President (EOP), which the PCAM (Brownlow et al., 1937) and Gulick (1937) recommended. The act and the EOP gave the president unprecedented authority over the federal bureaucracy. The EOP, in particular, solidified the expansion of presidential administrative power that had begun with the New Deal (see James, 2005). And while the full vision of the PCAM did not go into effect, its Report nevertheless offered a lasting conceptual framework for the administrative presidency on which future presidents would build.

The expanded size and scope of federal administration enhanced the power of the administrative presidency by extending the potential reach and importance of executive orders and transforming agency rulemaking into a major surrogate for legislation. For example, Roosevelt’s Executive Order (1941) promoted equal employment opportunity in a significant segment of the national workforce by banning discrimination based on race, color, creed, or national origin in the federal government and defense industries. Arguably, substantive rulemaking, which depends on delegations of congressional authority, eventually became “the single most important function performed by agencies of government” and, as head of the executive branch, the president is well situated to guide the development, substance, and enforcement of agency rules (see Kerwin, 2003, p. xi).

Presidents Harry S. Truman and Dwight D. Eisenhower continued to strengthen the president’s administrative powers with the first and second Hoover Commissions. Truman convened the first Hoover Commission (1947-1949), and it continued right where the PCAM left off. The Commission recommended that there be a clear line of responsibility and accountability within the bureaucracy with the president at its head. It called on Congress to vest statutory authority in department heads directly accountable to the president, rather than granting them independent legal and administrative responsibilities. It also recommended an increase in presidential staff and afforded the president complete authority over executive staff once appointed (Arnold, 1986; Light, 1995; Nathan, 1983; Pfiffner & Presthus, 1967; White, 1955). As Arnold (1986) points out in Making the Managerial Presidency, Congress accepted many of the Commission’s recommendations, incrementally putting into place approximately 100 out of 277.

Eisenhower convened the second Hoover Commission from 1953 to 1955. This Commission advocated extension of presidential reorganization authority to allow reorganization of executive agencies by executive order. The second Commission continued in the same vein as the first and advocated streamlining the bureaucracy by putting agencies directly under the president’s control. As Pfiffner and Presthus (1967, p. 190) maintained in their evaluation of the integrationist model of U.S. public administration, the Hoover Commission Reports, just like the PCAM before them, argued that the span of control for the president was too large. No president could oversee, much less supervise or manage, the vast number of federal agencies and independent regulatory commissions requiring his focus and attention (see also Gulick, 1937; Gulick & Urwick, 1937).

President Richard Nixon’s creation of the Advisory Council on Executive Organization in 1970 was a direct extension of the second Hoover Commission. The Advisory Council on Executive Organization, led by Roy Ash and known as the Ash Council, recommended the largest consolidation of presidential administrative power since the first Hoover Commission (Light, 1995). It called for the creation of the OMB to replace the Bureau of the Budget, the establishment of a domestic policy council, and reorganization of much of the executive branch into four super departments (James, 2005; Light, 1995; Nathan, 1983). The Reorganization Act of 1939 provided the authority for the establishment of the first two recommendations, but the creation of super departments—“the plot that failed”—never gained momentum (James, 2005; Nathan, 1975). The OMB serves to enhance presidential control over the executive branch and has brought a strong executive presence into all departments (James, 2005; Light, 1995). In addition to OMB’s development of the president’s annual budget submission to Congress, its Office of Information and Regulatory Affairs (OIRA) continues to play key roles in agency rulemaking.

The Reagan administration used OMB’s power in innovative ways. Reagan took the administrative powers that previous presidents had acquired to expand the presidential role in federal administration further. He selectively centralized functions in the executive branch by relying on OMB to bypass career administrative channels of decision making in favor of politically motivated decision making (Aberbach & Rockman, 2000; Light, 1995). As OMB and OIRA began to oversee the resources of agencies and their rulemaking initiatives, presidential control over administration increased, which provides another way of underscoring Light’s (1995) analysis of how and why the federal government began to thicken during this time period.

In addition, Reagan began to replace high-ranking career civil servants who held key management positions in the bureaucracy with political appointees (Aberbach & Rockman, 2000; Light, 1995). Similar to F.D. Roosevelt, Reagan used political appointees to gain greater control over federal administration—sometimes explicitly countering agency missions (Wood & Waterman, 1994). Reagan also followed Roosevelt in using executive orders to promote specific public policy initiatives. His Executive Order 12606 (1987) required agencies to perform impact assessments of their proposed rules on family “formation, maintenance, and general well-being,” and 12612 (1987), as mentioned earlier, required “federalism impact assessments.”

The National Performance Review (NPR) under President Bill Clinton continued the trend of consolidating presidential authority over federal agencies, though largely through managerial techniques rather than political strategies. The language in the NPR Report complements the managerial theories for running government advocated by the PCAM. It called for Congress to reduce the use of its constitutional oversight function, viewing it as a form of “micromanagement” (Gore, 1993, p. 20). The Report advocated minimizing legislative control of administrative budgets by reducing reporting requirements, calling for biennial budgeting, and increasing agencies’ authority to retain unspent funds (Gore, 1993; Kettl, 2002b).

The NPR also sought to reverse Madison’s Ratchet by deregulating federal administration and empowering employees. Among its primary foci were eliminating unnecessary rules and internal regulations, reducing what it considered an overly large and stifling managerial component, and reorienting the inspectors general from their watchdog role to one that facilitates better management practices (Rosenbloom, Kravchuk, & Clerkin, 2015). It claimed responsibility for the deletion of 640,000 pages of internal agency regulations, closure of 2,000 “obsolete field offices,” and termination of 250 “useless” administrative units (see Rosenbloom et al., 2015, p. 63). However, it only temporarily reversed the accretion of controls over federal administration, if at all, and critics noted that out of the 252,000 federal jobs that were cut as a result of its initial recommendations, not one was a political appointee (Light, 1995). The field of public administration took this as a clear indication that even in the midst of the “reinventing” government movement, the presidential ambition to retain and expand control over federal administration remained strong (Kettl, 2002b, 2005). For instance, while the NPR was seeking to reduce the complex web of regulations agencies faced when taking new initiatives, Clinton substantially added to them by broadly requiring agencies to consider the environmental justice impacts of their actions insofar as what was practicable and legal (Executive Order 12898 [1994]).

President George W. Bush (Bush II) continued these efforts and relied on some practices established by the Clinton administration while incorporating unitary executive branch theory as another tool for extending presidential power over federal administration. Bush held that the executive branch is “unitary” and solely subordinate to the president (Newbold & Rosenbloom, 2007). Thus, the president has the constitutional authority to direct administrators’ use of their discretionary powers and delegated legislative authority as well as to nullify the exercise of professional judgment by career civil servants when the president’s administration disagrees with their assessments (Yoo, Calabresi, & Colangelo, 2005). In practice, the Bush II doctrine meant that any discretionary authority Congress delegated to an executive agency could be exercised directly by the president.

More specific to Madison’s Ratchet, the Bush II administration emphasized performance in ways that required extensive reporting and evaluation, further complicating federal administration. The President’s Management Agenda (PMA) focused on five areas for improvement: (a) strategic management of human capital, (b) competitive sourcing, (c) financial performance, (d) expanded e-government, and (e) budget and performance integration. The administration used a traffic light scorecard to rate programs’ performance on the PMA, with green lights indicating success, red lights lack thereof, and yellow lights emphasizing mixed success (Kettl, 2002a). The administration also introduced the more sophisticated Program Assessment Rating Tool (PART) as a means of connecting program effectiveness to budgeting. The PART was eventually applied to approximately 1,000 programs before President Barack Obama’s administration discontinued it (Gilmour & Lewis, 2006; Heinrich, 2012; Moynihan, 2013).

The Bush II administration also added complexity to regulatory administration. Executive Order 13422 (2007) required agencies to identify the specific market failure or other problem(s), such as public institution failure, for which they created new regulatory action. In keeping with unitary executive branch theory, the order also required each agency to designate a presidential appointee as its “Regulatory Policy Officer” to liaise with OMB and OIRA and oversee agency rulemaking. Furthermore, Executive Order 13422, imposed a variety of controls on agency issuance of guidance documents, which are exempt from APA rulemaking procedures yet potentially binding on the public (see Perez v. Mortgage Bankers Association, 2015).

The Obama administration did not explicitly subscribe to a unitary executive branch theory, but it issued a number of strong statements that lean in that direction. In March 2009, Obama issued a signing statement on the Omnibus Appropriations Act, asserting that several of its provisions were nonbinding on the executive branch because they encroached on presidential authority (Obama, 2009). In April 2012, an increasingly frustrated Obama stated, “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them” (Savage, 2012). The following year, speaking with reference to the Affordable Care Act, Obama reiterated that “Regardless of what Congress does, ultimately I’m the president of the United States” and the public “expect[s] me to do something about it” (Brady, 2013; Eilperin, 2013). Later, he intimated that he would “go it alone” if he could not acquire sufficient congressional support for his policy initiatives (Curry, 2014). Prior to the 2014 State of the Union Address, Obama publicly asserted, “I’ve got a pen and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward” (Curry, 2014).

Two of Obama’s executive orders that sought to control administrative activity serve to illustrate how Madison’s Ratchet may complicate federal administration through the exercise of presidential power that does not encroach on congressional or judicial constitutional authority. Executive Order 13514 required agencies to analyze the “impacts from energy usage and alternative energy sources in all Environmental Impact Statements and Environmental Assessments” pursuant to the National Environmental Policy Act of 1969. Formally known as Federal Leadership in Environmental, Energy, and Economic Performance, the order called on federal agencies to reduce their own production of greenhouse gases by 28% by 2020 and to promote environmental sustainability in a variety of ways including conserving water, using less paper, and increasing recycling efforts. The Obama administration revoked this order in 2015 in favor of Executive Order 13693: Planning for Federal Sustainability in the Next Decade. This effort created more specific targets for energy conservation and the reduction of greenhouse gases by federal agencies.

Executive Order 13563 (2011) called on agencies to protect public “health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation” with specific attention to “equity, human dignity, fairness, and distributive impacts.” It directed rulemaking to incorporate “public participation, promote predictability and reduce uncertainty, use the best, most innovative, and least burdensome tools for achieving regulatory ends, take into account benefits and costs, maintain flexibility and freedom of choice for the public, and use plain language.” It further requires federal agencies to accept comments via the Internet for at least 60 days, instead of the traditional 30-day minimum requirement set forth by the APA (but subject to extension at agency discretion). This extension is intended to produce more input on proposed rules from potentially interested stakeholders. However, by doing so, it adds delay to the rulemaking process and can generate greater numbers of comments that agencies must docket and consider.

Ironically, even efforts to simplify agency regulations can add requirements to Madison’s Ratchet. Executive Order 13563 requires

each agency to develop and submit to [OIRA] a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.

Legislative Ambition and Federal Administration

In 1946, Congress responded to the emergence of the administrative presidency under F.D. Roosevelt by developing a framework for “legislative-centered” federal administration (Rosenbloom, 2000). The Madisonian theory of ambition counteracting ambition as a key to safeguarding the separation of powers served as the impetus for a congressional response to the New Deal, post World War II expansion of the scope of presidential and executive branch power. Senator William Fulbright (D-Arkansas) described the basic problem facing government in 1945 as “combining a strong executive with the maintenance of legislative supremacy” (U.S. Congress, 1945b, p. 20). Absent a response to the expansion of federal administration and concomitant presidential power, Senator Robert La Follette, Jr. (Progressive-WI) thought Congress might “lose its constitutional place in the Federal scheme” if the legislative branch failed to strengthen its authority over the administrative agencies (La Follette, 1946, p. 11). If Congress wanted to restore its constitutional position as the first branch of government, it would have to offset the administrative presidency by playing a much larger role in the management of executive branch administration.

Following the logic of Madison’s Ratchet, this offset was not to diminish presidential power but to counterbalance it with a lasting political–legal framework for exercising far greater legislative supervision, control, direction, and influence over federal administration (Rosenbloom, 2000). In 1946, Congress enacted three landmark statutes in response to the increased power developed by the administrative presidency. One, the APA, structures agency decision-making in rulemaking, adjudication, enforcement, and the release of information. The APA, as amended and augmented subsequently by multiple statutes, executive orders, and judicial decisions, constitutes the basic law that regulates federal administrative practice. Largely through congressional initiative, it now encompasses freedom of information, open meetings, regulatory flexibility, and other protections for small businesses and entities, paperwork reduction, whistle-blowing, dispute resolution, negotiated rulemaking, strategic planning, performance measurement and reporting, the quality of information used in rulemaking, environmental impact statements, assessments of agency actions that affect families, and much else (Rosenbloom, 2015, pp. 14-15). The APA itself continues to define the scope of judicial review of agency actions substantially to ensure that that they are subordinated to the rule of law.

The APA and subsequent statutes related to it vastly expand congressional regulation of federal administration. They also complicate it immensely, adding administrative requirement after administrative requirement to Madison’s Ratchet. Moreover, in contradistinction to the PCAM’s Report, in drafting these requirements, Congress has generally viewed administrative efficiency and economy as secondary concerns. As Senator Pat McCarran (D-Nevada), a chief sponsor of the APA noted, the Senate Judiciary Committee had “taken the position that the bill must reasonably protect private parties even at the risk of some incidental or possible inconvenience to, or change in, present administrative operations” (U.S. Congress, 1946, p. 2150). Truman signed the act, and none of its core features have been found to encroach unconstitutionally on presidential authority.

The 1946 LRA reorganized the congressional committee systems in both Houses of Congress so that standing committees were analogous to the organization of the executive branch in terms of its departments and functions. Importantly for congressional ambition counteracting presidential control of administration, the LRA gave birth to modern legislative oversight of the executive branch. It mandated that the committees should “exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee” (Section 136).

The Employment Act of 1946 enabled Congress to take back public works spending from agencies, which had gained control over it during the New Deal and World War II. It strengthened Congress’s ability to determine how and where federal dollars are spent on public works throughout the country. In supporting the Employment Act, Senator Joseph O’Mahoney (D-Wyoming) emphasized that it did “not authorize the Executive to spend a dime” because as Senator Robert Wagner (D-New York) pointed out “it all depends on Congress” (U.S. Congress, 1945a, pp. 8959, 9055). O’Mahoney also viewed the bill’s purpose as “to restore the functions of Congress” (U.S. Congress, 1945a, p. 9055; Rosenbloom, 2000, Chapter 4).

The logic behind the 1946 legislative-centered model has an enduring simplicity: Congress delegates its legislative authority to federal agencies. It structures the use of that authority (APA et seq.), oversees a variety of administrative processes that are subject to legislative regulation (LRA et seq.), and it works to promote legislative values, such as transparency and stakeholder participation in agency decision making (APA et seq.). In practice, along with the district oriented (“pork barrel”) spending anticipated by the Employment Act, the model promotes the legislators’ incumbency. We can date the rise of the “career Congress” from 1946 (see Hibbing, 1991; Rosenbloom, 2000, Chapter 4) and not coincidentally the LRA was the first statute in the nation’s history to provide retirement pay for members of Congress (Section 602).

Post-1946, Congress began delegating difficult policy choices and trade-offs to agencies. It relies on oversight to denounce and try to counter those agency choices when they are unpopular with constituents. This enables “Congressmen [to] take credit coming and going” and become “the alpha and the omega” in a system in which “no congressman who gets elected and who minds his business should ever be beaten . . . regardless of [political] party” (Fiorina, 1977, pp. 47-48, 62). In short, the 1946 model works for members of Congress even if today’s elected officials have largely forgotten the original rationale behind it for congressional involvement in the executive branch. Not surprisingly, Congress has strengthened this model over the years.

The full range of legislation augmenting the 1946 legislative-centered effort is too substantial to be fully reviewed here (see Rosenbloom, 2000). Several statutes in the 1990s and 2000s testify to its enduring legacy. The Government Performance and Results Act (GPRA) of 1993 requires federal agencies to engage in strategic planning in consultation with Congress and provide the legislative branch with annual performance reports. The Congressional Review Act (1996) provides for fast-track congressional review and potential disapproval of most major federal agency rules before they can go into effect. The Assessment of Federal Regulations and Policies on Families Act (1998) mandates that federal agencies consider the potential impact of their policies and regulations on family stability, marital commitments, parental authority, autonomy, and economic well-being before and during implementation. The Openness Promotes Effectiveness in Our National Government Act (Open Government Act) of 2007 strengthens freedom of information by requiring, inter alia, federal agencies to designate chief FOIA (Freedom of Information Act) officers and FOIA Public Liaisons. A congressional initiative, the 2016 Freedom of Information Improvement Act, further tweaks implementation of freedom of information regulations, most notably, perhaps, by creating more organizational infrastructure and a presumption of openness. The Government Performance and Results Act Modernization Act of 2010 (GPRAMA) contains several provisions intended to improve agency performance and strengthen performance reporting to Congress.

The overall post-1946 congressional impact on federal administration is not limited to statutes. Continuous watchfulness is so substantial that the NPR called for “liberating agencies from congressional micromanagement” (Gore, 1993, p. 34). It complained that “Congressional appropriations often come with hundreds of strings attached” and that a single department might be subject by Congress to as many as “2,150 directives, earmarks, instructions, and prohibitions” annually (Gore, 1993, p. 13).

However problematic such congressional regulation or intrusion into federal administration may be in terms of administrative efficiency and flexibility, following the logic of ambition counteracting ambition in generating Madison’s Ratchet, it does not encroach on the president’s constitutional authority. Rather, it balances presidential power by expanding Congress’s own constitutional role in the administration of the executive branch.

Judicial Ambitions and Federal Administration

In Federalist 78, Alexander Hamilton characterized the federal judiciary as “the least dangerous [branch] to the political rights of the constitution” (Cooke, 1961, p. 522). From the beginning of John Marshall’s tenure as Chief Justice of the United States (1801-1835) to the present, the Supreme Court and the lower federal courts have played an important role in shaping federal administration. In more recent years, public administration scholars have defined the relationship between the federal courts and administrative agencies as a “new partnership,” that demonstrates how the judiciary can influence public administration within the bounds of its constitutional functions (Bazelon, 1976; Newbold, 2010; O’Leary & Wise, 1991; Roberts, 2007; Rohr, 1986; Rosenbloom et al., 2010). The new partnership complicates administrative decision making, enforcement, and other actions.

Since the 1950s, the federal courts have “constitutionalized” public administration by infusing it with constitutional rights. Prior to this time, Americans had very limited—almost nonexistent—constitutional rights in their interactions with public agencies. Since then, the federal courts have declared a host of First, Fifth, and Fourteenth Amendment rights for individuals as they encounter public administration as clients, customers, government employees and contractors, prisoners, and public mental health patients. Fourth Amendment protections remain weak and are weakening in several respects, but they are stronger now in regulatory street-level encounters with law enforcement personnel than they were prior to the late 1960s (see Rosenbloom et al., 2010, Chapters 3-8).

As part of the “constitutionalization project,” the federal courts also facilitated enforcement of individual rights by: (a) loosening standing requirements to make it easier to sue government agencies and personnel; (b) developing remedial law, which enables judges to manage entire administrative systems, such as prisons and public schools; and (c) revolutionizing constitutional tort law as a mechanism for incentivizing public employees to protect individual constitutional rights and for compensating victims of unconstitutional administrative action (Rosenbloom et al., 2010, Chapter 8; Rosenbloom & Rene, 2016).

These developments were central to the rights revolution of the 1960s-1970s and continue to make due process, equal protection, and First Amendment rights as central to U.S. public administration as efficiency and cost-effectiveness (Newbold & Rosenbloom, 2016). However, the constitutionalization of federal administration is not an effort to turn bureaucracy into jurocracy. The Supreme Court has been notably wary of “displacement of managerial discretion by judicial supervision” (Garcetti v. Ceballos, 2006, p. 423).

The federal courts have also expanded their role in and control over federal administration through interpreting administrative law statutes. Most notably, the federal courts exercise a “hard look” review of agencies’ discretionary actions, including the content and rationality of their final rules. When taking a hard look, a reviewing court provides limited deference to an agency’s claims, analyses, and reasoning. In practice, the hard look enables courts to influence the substance of final rules and sometimes to substitute their own judgment for that of federal agencies (Rosenbloom, 2015, pp. 169-172). The hard look diminishes judicial acceptance of putative administrative expertise and can prompt courts to invalidate rules or remand them to agencies for further action. Less commonly, the federal courts can force agencies to engage in rulemaking (see Massachusetts v. Environmental Protection Agency, 2007). Perhaps more important to administrative behavior overall and the operation of Madison’s Ratchet is that the hard look approach encourages federal agencies to strengthen their rulemaking analyses and rationales for other discretionary activity in anticipation of judicial review.

Here, too, we note that as important as the hard look is in sometimes making the federal courts the “senior” partner with administrators, it does not signal an across-the-board judicial effort to influence or control administrative management. Insofar as they comport with the minimum APA requirements, the Supreme Court has called for a soft look (i.e., highly deferential) review of agency rulemaking procedures (Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, 1978). The soft look also applies to agency interpretation of ambiguous statutory language (Chevron v. Natural Resources Defense Council, 1984; City of Arlington, Texas v. Federal Communications Commission, 2013) and to agency discretion not to enforce statutes in concrete cases (Heckler v. Chaney, 1985; but see Texas v. United States, 2015, 2016).

As the contours of the partnership between federal courts and agencies continue to develop, the extent of judicial influence over public administration will vary in accordance with judicial dispositions. However, as with the president and Congress, the federal courts have responded to the rise of the administrative state by expanding their direction and influence over it and, in keeping with Madison’s Ratchet, frequently adding complexity to public management.

Conclusion: Madison’s Ratchet and Public Administration

To the extent that the accretion of controls on federal administration has been conceptualized as an aspect of constitutional design, it has typically been framed largely as a zero sum separation of powers contest among the three branches of government. This conceptualization is incomplete because all three branches are capable of expanding the authority or supporting the priorities of one another with regard to federal administration irrespective of whether or not doing so diminishes their own powers (see Light, 1997, p. 206; Rourke, 1993; Merriam, 1939; City of Arlington, Texas v. Federal Communications Commission, 2013). Augmenting this traditional approach with the wider lens of Madison’s Ratchet is critical to understanding the constitutional foundations of the modern administrative state. The theory of Madison’s Ratchet also encompasses efforts by each branch to place controls on federal administration. These controls support performance of the constitutional functions for which they are responsible and they advance specific policy priorities within the parameters of those responsibilities. Underscoring the application of Madison’s Ratchet in practice allows for the field of public administration to advance a fuller understanding of the constitutional dynamics underlying the continuing complexification of federal administration.

Administrative change is not always due to a contest of power. Each branch can impose controls on federal administrative activity without diminishing those established or exercised by the others. Indeed, one branch’s imposition of controls may even empower another, as Paul Light (1997) found. If the accretion of procedural and substantive controls on agencies is part of the problem of achieving administrative effectiveness, as the NPR and many others have contended, then the core issue and “fix” may not be which branch controls administration but rather how federal administration can be made to support—and perhaps even bridge and coordinate—the demands of a separation of powers system in which three branches have overlapping, blended functions that are conjoined within the administrative state. In short, perhaps turning public administrative research toward a fuller understanding of accretion in terms of Madison’s Ratchet will yield a better, more illustrative understanding of how to improve administrative effectiveness as well as the generic constitutional functions of policy making, management, and adjudication in the contemporary administrative state.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Author Biographies

David H. Rosenbloom is Chinese Thousand Talents Program Professor of Public Administration at Renmin University of China and Distinguished Professor of Public Administration in the School of Public Affairs at American University.

Stephanie P. Newbold is Associate Professor and Director of the MPA Programs in the School of Public Affairs and Administration at Rutgers University-Newark. She specializes in the intellectual history of public administration, democratic-constitutionalism, and the intersection between the American Constitution and the administrative state.

Meghan Doughty is a PhD candidate in Public Administration and Policy in the School of Public Affairs at American University in Washington, DC. Her research interests include representative bureaucracy and public administration and democratic-constitutionalism.

References

Aberbach

J. D.

Rockman

B. A.

(2000). In the web of politics: Three decades of the U.S. federal executive. Washington, DC: Brookings Institution.

Arnold

P. E.

(1986). Making the managerial presidency: Comprehensive reorganization planning, 1905-1980. Princeton, NJ: Princeton University Press.

Assessment of Federal Regulations and Policies on Families Act (1998). Retrieved from https://www.fws.gov/policy/library/rglew.pdf

Bazelon

(1976). The impact of the courts on public administration. Indiana Law Journal, 52(1), 101-110.

Brady

(2013). Statement by the president on the Affordable Care Act. Retrieved from https://www.whitehouse.gov/photos-and-video/video/2013/11/14/president-obama-speaks-affordable-care-act#transcript

Brownlow

Merriam

Gulick

(1937). U.S. President’s Committee on Administrative Management: Report of the President’s Committee on Administrative Management. Washington, DC: U.S. Government Printing Office.

Chevron U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837 (1984).

City of Arlington, Texas v. Federal Communications Commission , 569 U.S. (2013).

Congressional Review Act (1996) Retrieved from https://www.gpo.gov/fdsys/pkg/PLAW-104publ121/pdf/PLAW-104publ121.pdf

10.

Cooke

J. E.

(1961). The Federalist. Middletown, CT: Wesleyan University Press.

11.

Curry

(2014, January 26). Frustrated Obama’s message: I’ll go it alone. NBC News. Available at http://nbcpolitics.nbcnews.com/_news/2014/01/26/22455927-frustrated-obamas-message-ill-go-it-alone?lite

12.

Cushman

R. E.

(1937). The problem of independent regulatory commissions. Studies on administrative management in the government of the United States: The President’s Committee on Administrative Management. Washington, DC: U.S. Governing Printing Office.

13.

Eilperin

(2013, November 28). Obama knows his executive power has some limits, even if his liberal donors don’t. The Washington Post. Retrieved from https://www.washingtonpost.com/news/the-fix/wp/2013/11/26/obama-knows-his-executive-power-has-some-limits-even-if-his-liberal-donors-dont/?utm_term=.b20efbda86ee

14.

Executive Order 12606. (1987). Retrieved from https://www.reaganlibrary.archives.gov/archives/speeches/1987/090287b.htm

15.

Executive Order 12612. (1987). Retrieved from https://www.archives.gov/federal-register/codification/executive-order/12612.html

16.

Executive Order 12898. (1994). Retrieved from https://energy.gov/em/downloads/executive-order-12898-federal-actions-addressenvironmental-justice

17.

Executive Order 13422. (2007). Retrieved from https://www.archives.gov/federal-register/executive-orders/2007.html

18.

Executive Order 13563. (2011). Retrieved from https://www.whitehouse.gov/the-press-office/2011/01/18/executive-order-13563-improving-regulation-and-regulatory-review

19.

Executive Order 13514. (2009). Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2009-10-08/pdf/E9-24518.pdf

20.

Executive Order 13693. (2015). Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2015-03-25/pdf/2015-07016.pdf

21.

Federal Trade Commission v. Ruberoid , 343 U.S. 470 (1952).

22.

Fiorina

M. P.

(1977). Congress: Keystone of the Washington establishment. New Haven, CT: Yale University Press.

23.

Garcetti v. Ceballos, 547 U.S. 410 (2006).

24.

Gilmour

Lewis

(2006). Assessing performance budgeting at OMB: The influence of politics, performance, and program size. Journal of Public Administration Research and Theory, 16, 169-186.

25.

Gore

(1993). From red tape to results: Crating a government that works better and costs less. Washington, DC: U.S. Government Printing Office.

26.

Government Performance and Results Act: (1993) https://www.gpo.gov/fdsys/pkg/STATUTE-107/pdf/STATUTE-107-Pg285.pdf

27.

Government Performance and Results Act Modernization Act (2010) https://www.gpo.gov/fdsys/pkg/BILLS-111hr2142enr/pdf/BILLS-111hr2142enr.pdf

28.

Gulick

(1937). Notes on the theory of organization. In Gulick

Urwick

(Eds.), Papers on the science of administration (pp. 3-13). New York, NY: Institute of Public Administration.

29.

Gulick

Urwick

(Eds.). (1937). Papers on the science of administration. New York, NY: Institute of Public Administration.

30.

Hamdi v. Rumsfeld , 542 U.S. 507 (2004).

31.

Heinrich

(2012). How credible is the evidence, and does it matter? An analysis of the program assessment rating tool. Public Administration Review, 72, 123-134.

32.

Heckler v. Chaney , 470 U.S. 821 (1985).

33.

Hibbing

J. R.

(1991). Congressional careers. Chapel Hill, NC: University of North Carolina Press.

34.

James

S. C.

(2005). The evolution of the presidency: Between the promise and the fear. In Aberback

J. D.

Peterson

M. A.

(Eds.), The executive branch (pp. 3-40). New York, NY: Oxford University Press.

35.

Karl

(1963). Executive reorganization and reform in the New Deal: The genesis of administrative management, 1900-1939. Cambridge, MA: Harvard University Press.

36.

Kaufman

(1977). Red tape. Washington, DC: Brookings Institution.

37.

Kerwin

(2003). Rulemaking (3rd ed.). Washington, DC: CQ Press.

38.

Kettl

D. F.

(2002a). Government by traffic light. Brookings Institution. Retrieved from http://www.brookings.edu/research/articles/2002/04/governance-kettl

39.

Kettl

D. F.

(2002b). The transformation of governance: Public administration for twenty-first century America. Baltimore, MD: Johns Hopkins University Press.

40.

Kettl

D. F.

(2005). Reforming the executive branch of the U.S. Government. In Aberbach

J. D.

Peterson

M. A.

(Eds.), The executive branch (pp. 344-378). New York, NY: Oxford University Press.

41.

La Follette

(1946, August 11). Congress wins a victory over Congress. The New York Times Magazine, p. 4.

42.

Light

P. C.

(1995). Thickening government: Federal hierarchy and the diffusion of accountability. Washington, DC: Brookings Institution.

43.

Light

P. C.

(1997). The tides of reform. Washington, DC: Brookings Institution.

44.

Massachusetts v. Environmental Protection Agency . 2007. 549 U.S. 497.

45.

Merriam

(1939). Reorganization of the national government, Part I: An analysis of the problem. Washington, DC: Brookings Institution.

46.

Moynihan

(2013). Advancing the empirical study of performance management: What we learned from the Program Assessment Rating Tool. American Review of Public Administration, 43, 499-517.

47.

Nathan

R. P.

(1975). The plot that failed: Nixon and the administrative presidency. New York, NY: Wiley.

48.

Nathan

R. P.

(1983). The administrative presidency. New York, NY: John Wiley.

49.

National Labor Relations Board v. Noel Caning . 2014. 134 S. Ct. 2550.

50.

Newbold

S. P.

(2010). Toward a constitutional school for American public administration. Public Administration Review, 70, 538-546.

51.

Newbold

S. P.

Rosenbloom

D. H.

(2007). Brownlow Report retrospective. Public Administration Review, 67, 1006-1058.

52.

Newbold

S. P.

Rosenbloom

D. H.

(2016). The Constitutional school of American public administration. New York, NY: Routledge.

53.

Newbold

S. P.

Terry

L. D.

(2006). The President’s Committee on Administrative Management: The untold story and the Federalist connection. Administration & Society, 38, 522-555.

54.

Nixon v. United States . 1993. 506 U.S. 224.

55.

Obama

(2009, March 11). Statement from the president on the signing of H.R. 1105. Washington, DC: White House. Retrieved from https://www.whitehouse.gov/the-press-office/statement-president-signing-hr-1105

56.

O’Leary

Wise

C. R.

(1991). Public managers, judges, and legislators: Redefining the “new partnership.” Public Administration Review, 51, 316-327.

57.

Perez v. National Mortgage Bankers Association . 2015. 135 S.Ct. 1199.

58.

Pfiffner

Presthus

(1967). Public administration (5th ed.). New York, NY: Ronald Press.

59.

Pierce

(2014). Rulemaking ossification is real. Washington, DC: Regulatory Studies Center, George Washington University. Retrieved from https://regulatorystudies.columbian.gwu.edu/rulemaking-ossification-real-response-testing-ossification-thesis

60.

Polenberg

(1966). Reorganizing Roosevelt’s government: The controversy over executive reorganization, 1936-1939. Cambridge, MA: Harvard University Press.

61.

Roberts

R. N.

(2007). Developments in the law: Garcetti v. Ceballos and the freedom of speech rights of public employees. Public Administration Review, 67, 662-672.

62.

Rohr

J. A.

(1986). To run a constitution: The legitimacy of the administrative state. Lawrence: University of Kansas Press.

63.

Roosevelt’s Executive Order 8802. (1941). Retrieved from https://www.ourdocuments.gov/doc.php?doc=72

64.

Rosenbloom

D. H.

(1983). Public administrative theory and the separation of powers. Public Administration Review, 43, 219-227.

65.

Rosenbloom

D. H.

(2000). Building a legislative-centered public administration. Tuscaloosa: University of Alabama Press.

66.

Rosenbloom

D. H.

(2001). Whose bureaucracy is this, anyway?’ Congress’ 1946 answer. Political Science and Politics, 34(4), 773-777.

67.

Rosenbloom

D. H.

(2014). Federal service and the Constitution: The development of the public employment relationship (2nd ed.). Washington, DC: Georgetown University Press.

68.

Rosenbloom

D. H.

(2015). Administrative law for public managers. Boulder, CO: Westview.

69.

Rosenbloom

D. H.

Kravchuk

R. S.

Clerkin

(2015). Public administration: Understanding management, politics, and law in the public sector (8th ed.). New York, NY: McGraw Hill.

70.

Rosenbloom

D. H.

O’Leary

Chanin

(2010). Public administration and law (3rd ed.). Boca Raton, FL: CRC Press.

71.

Rosenbloom

D. H.

Rene

H. K.

(2016). Shrinking constitutional tort accountability: Developments in the law and implications for professional responsibility. Public Performance and Management Review, 40(2), 235-256.

72.

Rourke

(1993). Whose bureaucracy is this, anyway? Congress, the president and public administration. Political Science & Politics, 26, 687-692.

73.

Savage

(2012, April 22). Shift on executive power lets Obama bypass rivals. The New York Times. Retrieved from http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-let-obama-bypass-congress.html?pagewanted=all

74.

Texas v. United States . 2015. 787 F. 3d 733.

75.

Texas v. United States . 2016. U.S. Supreme Court, No. 15–674; June 23.

76.

U.S. Congress. (1945a). Congressional record (Vol. 91, 79th Cong., 1st Sess.). Washington, DC: U.S. Government Printing Office.

77.

U.S. Congress. (1945b, April 2). First intermediate report: Organization of the Congress (Joint Committee on the Organization of Congress 79th Cong., 1st sess [Senate document 79-36]). Washington, DC: U.S. Government Printing Office.

78.

U.S. Congress. (1946). Congressional record (Vol. 92, 79th Cong., 2nd sess). Washington DC: U.S. Government Printing Office.

79.

Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council. 1978. 435 U.S. 519.

80.

White

L. D.

(1955). Introduction to the study of public administration (4th ed.). New York, NY: Macmillan.

81.

Wood

B. D.

Waterman

R. W.

(1994). Bureaucratic dynamics: The role of bureaucracy in a democracy. Boulder, CO: Westview Press.

82.

Yoo

C. S.

Calabresi

Colangelo

(2005). The unitary executive in the modern era, 1945-2004. Iowa Law Review, 90, 601-731.