Policy battles are far more complex than civics class lets on

By Jonathan Bernstein

In my earlier post responding to Dylan Matthews, I didn't get around to talking about or even citing the excellent Charlie Savage NYT article he was working from. That's a mistake on my part: It's an excellent article, and I recommend it.

What I like is that Savage gets to the complexity of what's often oversimplified as positions either for or against the president. In fact, in thinking about the agencies and departments that actually carry out government policy, there are a number of potential battles. Asking where a nominee stands on "executive power" might really be asking about any of these battles, and positions are not always consistent, so that knowing which "side" someone is on in one of these conflicts does not necessarily predict where she will be on another. It's worth sorting these things out a bit, so:

1. "The government" vs. the people. What can the government do? Where is it limited by constitutional or other rights? Notice that this conflict really doesn't have anything to do with who in the government can make choices, but is only about what choices anyone in government is allowed to make.

2. Congress vs. the presidency. Which elected officials should have the most influence over the departments and agencies that actually carry out government policy? Note that this is generally taught really badly the first time most people encounter it, in high school civics classes. Textbooks generally have nice charts implying that the president stands at the top of a pyramid over the executive branch departments. That's wrong! In fact, Congress, the president and the courts all contest for control over the bureaucracy -- and others, such as state and local governments, interest groups, and parties, also attempt to control the bureaucracy, either directly or by influencing elected officials. Not three branches of government, but many branches.

3. The bureaucracy vs. elected officials. Who should set policy: politicians or qualified experts? This is always going to be a question of degree ... elected officials in any democracy set basic policy directions, and as long as there is any civil service there will be bureaucrats who make policy, not just carry it out. The United States is unusual in how little leeway is given to the bureaucracy. Still, civil servants often still fight hard to do what they think is right and to ignore the wishes of both Congress and the White House -- and they often win.

Sometimes more than one of these is happening at once; for example, in the DADT battle during the Clinton administration, the bureaucracy (in that case, the military) worked with Congress to block a policy choice that the incoming administration wanted. Or, during the Bush administration, the fight over such things as the PATRIOT act could be in part people vs. government, in part Congress or the courts vs. presidency, and in part not only civil servants vs. elected officials, but also clashes between bureaucrats in different agencies. In other words, it's complicated.

And all of these fights play out in the courts, as well as in other venues, so it is appropriate to think of them with regard to Supreme Court nominations. These conflicts are built into the system to some extent by constitutional design, and to a larger extent just as a function of democracy itself. It's one of those things that doesn't really have a "right" answer, just a lot of legitimate positions one might support. There are, of course, some wrong answers.

-- Jonathan Bernstein blogs about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.