Introduction
The administration of President Donald Trump culminated in partisan antagonism of an intensity not seen since the Civil War. The president’s appointees in federal agencies were subject to exceptional demands for loyalty to the executive. While in the latter part of his term Trump engaged in unprecedentedly crude behaviors and practices, including abrupt dismissal of high-ranking officials, his administration’s appointments and relationships with federal agencies didn’t necessarily plow new ground. They only extended to extreme levels a cyclic trend for presidential patronage policies that began after World War II. This paper offers historical insights on why incoming President Biden will have inducements to revise laws and restore balanced, independent functioning of federal executive agencies.
Federal government appointments and operations to 1970
The first six presidents of the United States largely followed George Washington’s precedent in appointing government employees based on competence. Except for cause, government positions other than top cabinet officials were expected to be permanent. Holding that the existing appointment system was elitist, President Andrew Jackson (1829-1837) introduced the patronage (“spoils”) system which created turnover over in both federal administrative positions and lower jobs after changes in presidential administrations. The new policy politicized government operations and inhibited the development of stable administrative structures, reaching a peak of corruption in the “Gilded Age” after the Civil War
The reputation of President Rutherford B. Hayes (1877-1881) suffered because his actions formally ended Reconstruction. However, Hayes was the first president to initiate governmental reform in the post-Civil War era. Major achievements of his administration included competency-based cabinet and policymaking appointments, reform of the scandal-ridden Interior Department, and commissioning of a comprehensive plan for a merit-based civil service system. This fundamental reform hung fire until public furor over the assassination of President James Garfield by a disgruntled office-seeker led to its enactment into law as the Pendleton Act of 1883.
By Theodore Roosevelt’s presidential administrations (1901-1909) civil service and other reforms increased public and Congressional trust in federal agencies to the point that Congressional laws could bec0me short. Congress designated missions, goals, and approved funding, but gave agency leaders discretion to develop operating policies. Expert agency staff assisted Congress in preparing and modifying legislation, a practice currently followed by ministries in advanced European nations.
Transformation of lawmaking in the 1970a achieved rapid progress against pollution – but led to economic impacts
The above lawmaking conventions continued until 1970 when an environmental crisis and skepticism about federal stewardship of the environment led Congress to pass a series of groundbreaking laws in the 1970s. Up to this time, federal science agencies were respected for competence and fairness, but their regulatory powers were limited. The Clean Air Act Amendments of 1970 extended the Environmental Protection Agency’s enforcement authority nationwide while including unprecedented operational detail. Provisions in the law included tough punitive measures like fines of $25,000 per day and imprisonment for violations. The CAA and subsequent laws achieved rapid progress against pollution. However, their adversarial provisions, especially focused on manufacturing and industry, led to unanticipated economic decline and antagonism on the part of the business community.
The Civil Service Reform Act of 1978 increased presidential control over agencies and indirectly exacerbated partisanship and political conflict
The often-overlooked Civil Service Reform Act of 1978 was promoted by President Jimmy Carter to gain greater presidential influence on federal agency operations. Its new Senior Executive Service (SES) provisions allowed the president to appoint 10% of SES personnel as temporary administrators under top agency appointees. Carter lost the election of 1980 to Ronald Reagan. Upset over regulations, President Reagan appointed firebrand administrators who used the new CSRA provisions to “clean house” in EPA and the Department of Interior and roll back regulatory enforcement. The actions triggered Congressional backlash. EPA Administrator Ann Gorsuch and Secretary of Interior, James Watt, resigned, but conflict over environmental regulation widened to political polarization. Democrats became the party of the environment, and Republicans became the party of industry.
Lawmaking paralysis has consequences
Partisan polarization and Congressional gridlock after the 1980s led presidents to increasingly bypass normal procedures in order to achieve their policy goals. President George W. Bush set records for “signing statements” on Congressional bills. President Obama used his “telephone and pen” and with his Attorney General declared that the Congressional law on marriage (DOMA) was unconstitutional – declining to enforce it. While the Supreme Court did subsequently rule that DOMA violated the Due Process Clause of the Fifth Amendment, it was not the prerogative of the President and Attorney to refuse to enforce valid Congressional Law. A 2700-page law on health care (the ACA) was pushed through without a single Republican vote. In the ensuing Trump administration, Republicans likewise enacted massive tax cuts by party-line vote. President Trump rescinded some 150 of Obama’s Executive Orders, including the U.S.’s membership in the Paris Agreement on Climate Change, and pursued directions opposite to that of Obama. In his first days in office incoming President Biden, in turn, rescinded many Trump Executive Orders and issued new Orders. In short, federal government agencies prior to World War II served presidential, Congressional goals and the public. However, their leaders took independent leadership in operating policy planning for the future and the agencies were generally respected for their ethics and effectiveness. In recent years agencies have tended to become appendages of presidential policy.
Reform of agency operations, Congressional lawmaking, and the regulatory/permitting labyrinth
The new Biden administration announced the imperative of revitalizing the nation’s crumbling infrastructure and undertaking a massive green energy program to fight global climate change by replacing fossil fuel use with renewable and non-carbon energy sources. These require revitalizing American manufacturing to support jobs and economic growth instead of relying on foreign imports. Effective operation of federal operating agencies is an obvious necessity if the vast proposed expenditures are to be used effectively and complex goals are to be met. Formidable obstacles faced by large-scale infrastructure development are labyrinthine regulatory and permitting requirements and opportunities for litigation that became part of the nation’s legal framework in the 1970s.
There are ironies in our current situation. A series of powerful environmental laws were passed in the 1970s to control environmental problems that arose in the post World War II economic boom. These measures were especially designed to control manufacturing and industry, the prime sources of environmental pollution and health hazards. However, their adversarial features helped cause massive loss of U.S. manufacturing as business leaders outsourced production and moved to banking and finance, real estate, and other economic areas less affected by costs, constraints, and threats of litigation.
Now a superior environmental threat – global climate change – requires a transformation of the U.S. energy system. But the manufacturing infrastructure and raw material supplies needed to achieve the change are now heavily dependent on imports. Further, the labyrinthine regulatory and permitting systems earlier created to control industry have proved highly effective in stopping new renewable energy initiatives. A prime example is that 5500 wind turbines operate in European waters, whereas we have only seven in the most wind energy-rich corridor along the U.S. Atlantic coast. Permits for major infrastructure initiatives involving federal support take 4 to 10 years or longer. Without change in the system new presidential initiatives might not even get permits. But such changes face polarization ultimately stimulated by antagonism over environmental policy.
The future
The famous student of American Democracy. Alexis De Tocqueville, observed 180 years ago that Americans are prone to flawed policies through strong opinions and excess zeal. However, he also noted that once problems were recognized, they were quicker than in other nations to correct them. The question is how serious the problems need to be to overcome partisan animosities and polarization and trigger fundamental changes in attitudes.
