ABSTRACT
I wrote the manuscript for this article in 2006. The impetus for it was the growing emphasis in academic and applied public administration on “managing for results” and its accompanying tendency to dismiss the importance of accountability for democratic-constitutional values and procedure. The National Performance Review (NPR, 1993-1998), which morphed into the National Partnership for Reinventing Government in 1998, called on government to be results oriented in businesslike fashion. Reinventing was followed by President George W. Bush’s President’s Management Agenda (PMA). Our “first MBA president” also heavily supported management for results and his administration sometimes gave constitutional procedure short shrift in the service of expansive claims of executive power. Little, if any attention was paid to Supreme Court Justice Felix Frankfurter’s nagging admonition to “Remember, there are very precious values of civilization which, ultimately, to a large extent are procedural in their nature” (Rosenbloom, 2000, p. 23). Let’s take a brief moment to reflect on the NPR and the Bush II pre-
sidency. The NPR was disdainful of “rules,” a theme that runs through its 1995 volume on Common Sense Government Works Better & Costs Less. The reinventers told us that among government’s greatest shortcomings, “The first priority was the rules; the second was those who checked whether the rules were being followed (such as auditors and inspectors general); the third was those who made the rules in the first place (such as Congress and interest groups)” (Gore, 1995, p. 19). Rules were based on misplaced “distrust” and were unnecessary because “Most people want to do the right thing, so long as the right thing makes sense” (p. 33). In a remarkable passage, now laden with irony in view of the 2000 Bush-Gore presidential election, the NPR told us that government “needs to have more trust in the American people-including its own employees” because “when we are not trusted … we feel powerless” and “Elections alone do not restore that power. The power that matters in a self-governing democracy is the power we can exercise ‘over the counter,’ on a daily basis, whenever we interact with our government, whenever we seek to make our needs known” (p. 93). The ideal sounded more like “Gov-Mart” (p. 58) than “constitutional-gov.”
capital, competitive sourcing, financial performance, e-gov, and integration of budgets and performance (Rosenbloom, 2010, p. 112). The PMA was related to Bush’s adherence to a version of unitary executive branch theory, most specifically articulated in his “signing statements” (Rosenbloom, 2010). In terms of “Reinventing Administrative Prescriptions,” its most important features were the claims that: (1) The president’s constitutional responsibility to “take care that the laws be faithfully executed” requires, or at least authorizes him to ignore statutory provisions that he considers unconstitutional-even while signing them into law; and (2) the president has constitutional authority to exercise directly congressional delegations of legislative authority to executive branch agencies (Rosenbloom, 2010, p. 120; see also Rosenbloom, 2008). The first claim circumvents the Constitution’s provision for presidential
vetoes. It was criticized by the American Bar Association’s House of Delegates “as contrary to the rule of law and our constitutional system of separation of powers” and a “misuse of presidential signing statements by claiming the authority or stating the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress” (American Bar Association, 2006). The second claim is contrary to over 170 years of constitutional precedent.
As the Supreme Court held in Kendall v. U.S. (1838):
