President-elect Joe Biden has chosen high-profile Democrats such as John Kerry and Susan Rice to join his administration, but not via Cabinet appointments. Biden has selected Kerry to be his special envoy for climate change, and Rice will helm the White House Domestic Policy Council. Meanwhile, Biden’s picks for Cabinet posts have been, to date, generally solid but unspectacular. It looks from this angle like Biden is intent on implementing both foreign and domestic policy from the West Wing, rather than through the executive departments.
This is hardly a new approach. Under the Constitution, executive authority is vested exclusively in the president, and insofar as Congress does not explicitly empower agencies and departments to make choices, the president can make them when and as he sees fit. Presidents have been doing this for a long time. Going all the way back to the administration of Andrew Jackson, the president has often relied on informal advisers (which were then referred to as Jackson’s “Kitchen Cabinet”) to make decisions. Jackson was notorious for treating his departmental secretaries as appendages. He even fired Treasury Secretary Louis McLane for refusing to follow the president’s directive to remove federal deposits from the Bank of the United States — despite the fact that federal law enjoined McLane from doing so unless he believed the bank was in financial duress (which it clearly was not).
More recently, President Richard Nixon conducted diplomatic negotiations to end the Vietnam War almost exclusively through the White House. His aide-de-camp on the issue was his national security adviser, Henry Kissinger. William Rogers, who served as secretary of state during the entirety of the Nixon term, was basically a nonentity. Relatedly, President John F. Kennedy leaned heavily on his brother Robert to conduct high-level negotiations during the Cuban Missile Crisis, even though the latter was secretary of the treasury.
The advantages for a president in managing the executive branch in this way are numerous. Fundamentally, the executive departments are the creation of Congress, which means their leadership must be responsive to both the legislature and the president. But West Wing advisers, such as Kissinger and Kerry, answer solely to the president. And while the president has the exclusive power to remove officers from the departments, he must consult with Congress on their selections, meaning that he may not be able to get whomever he likes.
Additionally, there remains a kind of patronage system in presidential appointments, whereby the president is obliged to satisfy certain factions of his coalition by choosing certain people. For instance, Biden has chosen Pete Buttigieg to be his transportation secretary not because the former mayor of South Bend, Indiana, is qualified for that job — or really any senior job, for that matter — but as a reward to Buttigieg for endorsing him at a critical moment during the campaign, and an acknowledgment to the well-heeled Democrats who funded Buttigieg in the primaries but then opened their wallets for Biden in the general. The problem for Biden is that Buttigieg does not hail from Biden’s orbit, no doubt retains great ambitions for higher office, and has precious few qualifications. That limits the ability of the new president to trust his appointee. On the other hand, Biden has known and worked with people such as Rice and Kerry for a long time, can be confident that their ambitions are coterminous with the success of his administration, and is assured that they have experience at the highest levels of government.
If anything, Congress has only made it easier for the president to govern predominantly from the West Wing. Over the last 80 years, the legislature has time and again shifted authority to the executive branch, so much so that the president can often wield quasi-legislative power. Take, for instance, President Barack Obama’s decision to normalize relations with Cuba. There was no treaty signed between the two nations, which would have to be approved by the Senate. Instead, the president used his executive discretion to ease travel restrictions and exchange spies. Without congressional approval, Obama could not actually get rid of the trade embargo, but he nevertheless could do quite a bit. Similarly, the Joint Comprehensive Plan of Action, more commonly known as the “Iran deal,” between Iran and the permanent member nations of the U.N. Security Council was possible because the president has exclusive authority to impose and, by extension, remove various sanctions on designated hostile nations, such as Iran. Though many in Congress strenuously opposed the deal, there was precious little that could be done. The Paris climate accords were another example of unilateral presidential action. Obama entered the United States into it without approval from the Senate and used his authority over the Environmental Protection Agency and other departments to impose regulations to meet the goals set forth in the international agreement.
And even when the president lacks statutory or constitutional authority, he has a “first mover” advantage. Obama’s decision to grant effective amnesty for millions of illegal immigrants through executive fiat was of dubious constitutionality — Obama himself admitted as much before he did so. But to challenge the action, opponents either had to amass a veto-proof majority in Congress, which was impossible, or seek relief through the courts, which have been hesitant to step into such hot political issues. Similarly, President Trump’s decision to suspend the collection of payroll taxes certainly violates the spirit, if not the letter, of the Constitution, which vests the taxing authority in Congress. But for all intents and purposes, relief must be sought through the courts.
So, if a president intends to implement policy on his own, why not do it through the West Wing? There, he can consult with his most trusted aides and monitor implementation directly, without going through Cabinet departments. In this age in which the president dominates the political and policy landscapes, corralling authority in the White House makes a great deal of sense.
But there are substantial costs to be borne for this approach. Despite his 2008 pledge to move the country beyond its partisan divisions, Obama never came close to finding common ground with his Republican opponents. The nearest he came was the debt-ceiling negotiations in the summer of 2011, in which he and Speaker of the House John Boehner sought a “grand bargain” on taxes and spending. But the negotiations ended in mutual recriminations.
Obama’s response to this failure was to begin emphasizing unilateral actions and govern increasingly without Congress. This yielded short-term policy gains for the president, such as the Iran deal. But it is only through Congress that proposals can take on the force of law and therefore resist changes in administrations. Meanwhile, congressional Republicans, angered by the president’s unilateral actions, resolved not to compromise with Obama on any legislation whatsoever — on Iran, immigration, or entitlement spending. The problem for Obama was that, after eight years of Democratic governance, the country elected a Republican president in 2016, and Trump was able to undo most of Obama’s executive proclamations.
Biden faces a similar challenge. The incoming 117th Congress will have only a razor-thin Democratic majority in the House and, pending the outcome of the special elections in Georgia, a Senate that will probably have a Republican majority. The best-case scenario for the Democrats is a 50-50 split with Vice President-elect Kamala Harris serving as a tiebreaker.
Republicans, in other words, are going to have substantial influence over the course of legislative action. This no doubt is one reason why Biden wishes to wield as much executive authority as he can, for his GOP opponents will likely thwart his more liberal ambitions in Congress. Similarly, a strong Republican presence in the Senate, which possesses the constitutional authority to advise and consent on executive appointments, creates an incentive for Biden to house authority in the West Wing rather than in the Cabinet. But if the president pushes too far or too fast through his executive orders, whether on healthcare, environmental regulations, student loan debt, or other issues, congressional Republicans will surely recoil, refusing any sort of compromise. This would deny Biden the legislative victories that his campaign promise to “heal the nation” implies.
The incoming president, in other words, is stuck between a rock and a hard place. He is unlikely to get much done through Congress, which gives him a reason to hire people such as Rice and Kerry as personal advisers, grant them large policy portfolios, and implement their recommendations through fiat. But if he tries, as Obama did, to govern via his “phone and his pen,” he will all but sink any hope for compromise in Congress.
Ultimately, Biden’s hiring strategy is due to the fact that he lacks a clear mandate to govern. The public elected him by a 51-47 margin but gave him a Congress that is not at all disposed to advancing his legislative agenda. His only hope of real policy success is by using his existing authority as head of the executive branch, which is why Rice and Kerry could be so useful. But, as his former boss’s tenure demonstrated, such victories can be quite fleeting.
Authored by Jay Cost for Microsoft News. Jay Cost is a visiting fellow at the American Enterprise Institute and a visiting scholar at Grove City College’s Institute of Faith and Freedom.