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Consultation, Cooperation and Delegation: Presidential Power in the Twenty-First Century

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Consultation, Cooperation and Delegation: Presidential Power in the Twenty-First Century CONSULTATION, COOPERATION AND DELEGATION: PRESIDENTIAL POWER IN THE TWENTY-FIRST CENTURY By STEPHEN CHARLES BOYLE A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2007 © 2007 Stephen Charles Boyle 2 For Helen I would not wish any companion in the world, but you. (The Tempest; Act III, Scene I) 3 ACKNOWLEDGMENTS So many people have been so generous with their time, their patience and their intellect as I have prepared this work that it is difficult to know where to start. But start I must, and it must be with Larry Dodd, who saw a potential in my project that I did not initially see myself and who allowed me to develop it for myself with careful and attentive encouragement throughout. Leann Brown has skillfully mentored me from my very first day at UF and I probably would not have completed the program had it not been for her encouragement and down to earth support. Beth Rosenson has also been a consistent and steadfast supporter, always quick to respond to my annoying questions with sound and sensible advice. Leslie Anderson joined the party late and, I think, with some trepidation on both our parts, but she has been so supportive and timely with her input as to make me feel as if I were the only person placing demands upon her time. David Colburn took on the simple nuisance of being the external committee member with good humor and good grace and I will be for ever grateful to him for that. My wife, Helen has read and re-read every line of this opus, corrected my grammar, my spelling and my thinking without complaint, and she only fell asleep in the middle of a chapter once. Michael Hoover has been a font of clear headed thinking and good conversation, although I fear he will be disappointed with the final result; we had an ambition to dispel the ubiquity of Richard Neustadt’s theory of the presidency, and in that I have singularly failed. Other people who must be mentioned for their support, encouragement and love are my sister Sharon, and my closest friend and inspiration, Mark Johnson. I have to mention Sammy Barkin, who was always ready to chat and advise. Dick Norton of Boston University was generous with his advice and he inspired much of the approach which I took to my research and the writing of this work. I must also thank the George H.W. Bush Presidential Library, the 4 Lyndon B. Johnson Presidential Library, and the Department of Political Science at the University of Florida for their generous funding of my research. Finally, it was my great personal privilege, and the fulfillment of a lifelong dream to speak with John W. Dean, Alexander Butterfield, Ed Meese, Tom Korologus, Bill Casselman, Bob Lipshutz, Arthur Culvahouse and Bill Timmons. Their generosity with their time and knowledge was invaluable to this project. 5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ...............................................................................................................4 LIST OF FIGURES .......................................................................................................................10 1 INTRODUCTION ..................................................................................................................13 The View From the Dressing Room.......................................................................................13 The Essence of Negotiation....................................................................................................18 Overview of This Work and its Methodology........................................................................20 2 THE NEUSTADT INHERITANCE.......................................................................................24 Introduction.............................................................................................................................24 Presidential Power: The President Versus the Presidency.....................................................25 The Institutionalized Presidency.............................................................................................33 The Institutionalist Critique of Neustadt .........................................................................36 The Institutional Focus upon Executive Orders and Presidential Unilateralism.............39 The Institutional Theme ..................................................................................................44 Behaviouralism, Institutionalism and Zero-Sum Determinism..............................................46 The View From Inside the Black Box ....................................................................................52 A Proposal to Refurbish Behaviouralist Scholarship for the Twenty-First Century..............56 3 A TYPOLOGY OF PRESIDENTIAL ACTIVISM ...............................................................59 The Outline Presidency...........................................................................................................59 Justice Jackson’s Typology ....................................................................................................60 The President’s Scope for Action...........................................................................................63 The President as Legislative Leader................................................................................64 Presidential Unilateralism ...............................................................................................66 War Powers and Commander in Chief............................................................................67 The Typologies Combined ..............................................................................................69 Conclusion ..............................................................................................................................71 4 THE EXCEPTIONAL RICHARD NIXON ...........................................................................73 Introduction.............................................................................................................................73 Nixon and Congress: The Lines of Battle Drawn...................................................................74 The Ash Council and Federal Government Management Reform..................................76 The Policy Task Forces ...................................................................................................77 And We Haven’t Even Gotten To Impoundment............................................................80 War Powers and the Commander in Chief: The “Secret” and “Illegal” Bombing of Cambodia – March 1969..............................................................................................82 6 The Exception That Proves the Rule ......................................................................................86 5 THE VIEW FROM THE WHITE HOUSE............................................................................90 Introduction: The President and the Tools of Bureaucratic Management..............................90 Tools of the Trade...................................................................................................................91 The Development of Presidential Power ................................................................................93 Methods of Presidential Unilateralism and the Problem of Concentrating on Executive Orders..................................................................................................................................95 Presidential Power in the Twilight Zone ................................................................................99 Presidential Power in the Twenty-First Century ..................................................................101 The Limitations of Executive Action ...................................................................................103 Political Limitations ......................................................................................................103 I. Congressional backlash.......................................................................................105 II. Perceptions of weakness....................................................................................109 The Legal Limitations on Executive Unilateral Action........................................................111 I. The divide between expectation and reality........................................................111 II. The problem of limited reach............................................................................113 III. The implied intent of Congress: The constrained court; and the constrained executive? ...........................................................................................................120 IV. The problem of impermanence........................................................................126 The Significance of Process..................................................................................................127 The Problem of Perspective..................................................................................................130 Academic and Practitioner Perspectives on Presidential Unilateralism...............................130 Conclusions...........................................................................................................................132 6 COOPERATION, CONSULTATION AND DELEGATION: THE NORM OF PRESIDENTIAL/CONGRESSIONAL
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