General Management Laws: Major Themes and Management Policy Options
CRS Report for Congress
General Management Laws:
Major Themes and Management Policy Options
May 19, 2004
Clinton T. Brass
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
General Management Laws:
Major Themes and Management Policy Options
This report is a companion to CRS Report RL30795, General Management
Laws: A Compendium (hereafter “compendium”). In combination, these reports have
three main objectives: (1) to identify and describe the major management laws under
which the executive branch is required to operate, including their rationale, design,
and scope; (2) to assist Members of Congress and their staff in oversight of executive
branch management; and (3) to help Congress when considering potential changes
to the management laws, as well as other legislation, including authorization statutes
This report focuses on major themes — and possible policy options for
Congress — that emerge when the general management laws are viewed together, as
a whole. The report also describes historical context of the roles that Congress and
the President play in managing the executive branch, and compares management in
the public and private sectors. The themes and policy options address five topics.
Discretion for the Executive Branch: Congress frequently faces the issue of
how much discretion to give the executive branch. Congress has options to address
delegation situations and balance agency flexibility with accountability.
Standardization vs. Customization: Should the management laws under
which agencies operate be standardized, with uniform rules? Or should some
agencies have customized, agency-specific laws? Should there be a mix of the two
approaches? Congress has options when confronted with these decisions.
Functional Silos vs. Integrated General Management: A functional
perspective (e.g., looking at agency operations from the perspective of a budget
officer or human resources officer) can boost efficiency. However, if functional
orientations become inward-looking, functions can operate in isolation, resulting in
coordination problems or missed opportunities. Congress has options to use an
integrated general management perspective to solve agency management problems.
Making and Measuring Progress: Many executive branch agencies suffer
from persistent, major management problems. Often these problems relate to areas
the general management laws were intended to address. Congress has options for
measuring and motivating agency progress in improving management practices.
Agency “Chief Officers” and Interagency Councils: Statutorily created
“chief officers” (e.g., chief financial officers and chief acquisition officers) have
increased in number in federal agencies. Congress also established interagency
councils of these officers. Congress has options when considering whether additional
chief officers should be established and how the councils could be more accountable.
The report reflects the status of general management laws at the end of the firstth
session of the 108 Congress, and will be updated along with the compendium to
reflect actions taken through the close of the 108th Congress.
How the Compendium and Companion Report Are Organized..............2
Who Manages the Executive Branch?..................................3
Congress and the President......................................3
Historical Context of Managing the Executive Branch.................4
Comparing Management Practices in the Public and Private Sectors..........8
Major Themes and Management Policy Options.........................10
Discretion for the Executive Branch..............................10
Advantages and Disadvantages..............................10
Management Policy Options................................11
Standardization vs. Customization...............................13
Three General Approaches..................................13
Advantages and Disadvantages..............................14
Management Policy Options................................14
Functional Silos vs. Integrated General Management.................15
Two Perspectives on Management...........................16
Management Policy Options................................17
Making and Measuring Progress.................................19
Challenges to Making Progress..............................19
Brief History of Measuring Progress..........................20
Management Policy Options................................24
Agency “Chief Officers” and Interagency Councils..................26
Advantages and Disadvantages..............................32
Management Policy Options................................34
List of Tables
Table 1. Agency “Chief Officers”....................................28
Table 2. Interagency Councils.......................................30
General Management Laws: Major Themes
and Management Policy Options
This report, General Management Laws: Major Themes and Management
Policy Options, is a companion to CRS Report RL30795, General Management
Laws: A Compendium (hereafter “compendium”). In combination, these reports have
three main objectives:
!to identify and describe the major general management laws under
which the executive branch is required to operate, including their
rationale, design, and scope;
!to assist Members of Congress and their staff in overseeing
management of the executive branch; and
!to help Congress when considering potential changes to the
management laws, as well as other legislation, including authorizing1
statutes and appropriations.
The compendium contains profiles of selected “general management laws” — broad
statutes designed to regulate the activities, procedures, and administration of all or2
most executive branch agencies. The quality of the general management laws, as
well as their implementation, are considered crucial to maintaining the accountability
of the executive branch to Congress, the President, and the public. Moreover, these
laws influence the effectiveness of federal agencies when they implement, evaluate,
and help formulate public policies.
As a complement to the compendium, this report (“companion report”) focuses
on major themes and possible management policy options for Congress that emerge
when the general management laws are viewed together, as a whole. The companion
report reflects the status of general management laws at the end of the first session
1 A related report, CRS Report RL30240, Congressional Oversight Manual, describes the
major purposes, processes, techniques, and information sources for congressional oversight
of the executive branch.
2 Agencies are sometimes exempted from the coverage of some general management laws
due to a category into which they fall (e.g., department, government corporation, etc.),
specific provisions in an agency’s authorizing statute or appropriations, or provisions in the
general management law itself. The report addresses this theme in a subsequent section.
of the 108th Congress, and will be updated along with the compendium to reflect
actions taken through the close of the 108th Congress.3
How the Compendium and Companion Report
The compendium includes more than 90 separate entries that describe general
management laws for the executive branch. The entries are organized into the
following seven functional categories:4
!Information and Regulatory Management;
!Strategic Planning, Performance Measurement, and Program
!Financial Management, Budget, and Accounting;
! Organiz ation;
!Procurement and Real Property Management;
!Intergovernmental Relations Management; and
!Human Resources Management and Ethics.
Within the management field, functions typically refer to “business areas that require
related bundles of skill” or “groups of people with similar skills and performing
similar tasks.”5 (In the private sector, by way of comparison, functions often include
3 Previous versions of the compendium, coordinated by Ronald C. Moe, reflected the status
of general management laws at the close of the 104th, 105th, and 106th Congresses,
respectively. This report, which analyzes the general management laws together, is new.
4 The listed functions are not necessarily the only way to categorize the report’s entries into
sections, which could have been aggregated differently or further broken down.
5 For more discussion of functional structures and perspectives within a management
context, see John R. Schermerhorn Jr., Core Concepts of Management (Hoboken, NJ: John
Wiley & Sons, 2004), pp. 119-120, and Peter F. Drucker, Management (New York: Harper
& Row, 1974), pp. 558-563. This usage of the term function differs from usages found in
Title 5 of the United States Code and in budgetary accounting. In Title 5, the term function
is used in several contexts, including agency strategic plans (5 U.S.C. § 306, requiring
agencies to specify goals and objectives for major functions and operations of the agency),
transfer of functions (5 U.S.C. § 3503), and reductions in force (5 U.S.C. § 3502). Title 5
does not define the term, but the implementing regulations for transfer of functions and
reductions in force define function as “all or a clearly identifiable segment of an agency’s
mission (including all integral parts of that mission), regardless of how it is performed” (5
C.F.R. § 351.203). With regard to budgetary accounting, the term function refers to
categories of federal spending, organized according to the purpose or mission of government
(e.g., income security, energy, and international affairs). The Congressional Budget and
Impoundment Control Act of 1974 established the first statutory foundation for budget
function classifications (see 2 U.S.C. § 632(a)(4) and 31 U.S.C. § 1104(c)). For background
on budget function classifications, see CRS Report 98-280, Functional Categories of the
Federal Budget, by Bill Heniff Jr.; and U.S. General Accounting Office, Budget Function
Classifications: Origins, Trends, and Implications for Current Uses, GAO/AIMD-98-67,
marketing, finance, production, and human resources.) This functional orientation
is a major theme to which this report will return.
Most of the compendium’s entries profile a specific law, or in some cases,
several related laws. The “Human Resources Management and Ethics” section,
however, presents most civil service laws according to their codification in Title 5
of the United States Code — the way that practitioners and specialists typically
discuss these laws. For each entry in the compendium, one or more CRS analysts
present a brief history of the general management law, describe the law’s major
provisions, close with a discussion of key developments and issues, and provide
source readings for readers who might want more information.
As a companion to the compendium, this report provides historical background
on the roles that Congress and the President play in managing the executive branch.
Next, the report briefly discusses the extent to which management in the public and
private sectors can or should be compared. Finally, the largest share of the report
analyzes major themes that run through the general management laws and identifies
potential management policy options.
Who Manages the Executive Branch?
Congress and the President
Who manages the executive branch? The President or Congress? Both
branches together? Scholars have long debated their constitutional roles, whether
one institution is more powerful than the other in this regard, and which should
control the activities of federal agencies. The record of the last two centuries
provides ample evidence that Congress and the President both manage the executive
branch, as scholars have noted.6 The U.S. Constitution created a system of separated
powers, but it also established a system of checks and balances. Justice Robert
Jackson captured this subtlety:
While the Constitution diffuses power to better secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,7
autonomy but reciprocity.
6 See Louis Fisher, The Politics of Shared Power: Congress and the Executive, 4th ed.
(College Station, TX: Texas A&M University Press, 1998); Charles O. Jones, Separate but
Equal Branches: Congress and the Presidency (Chatham, NJ: Chatham House, 1995);
Robert S. Gilmour and Alexis A. Halley, eds., Who Makes Public Policy?: The Struggle for
Control Between Congress and the Executive (Chatham, NJ: Chatham House, 1994); andnd
Peter Woll, American Bureaucracy, 2 ed. (New York: W.W. Norton & Company, 1977).
See also CRS Report RS20443, American National Government: An Overview, by Frederick
7 Youngstown Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).
Thus, the question is about how Congress and the President share power — or should
share power — in managing the executive branch. This report and the compendium
examine part, but not all, of that conversation so far.8
Historical Context of Managing the Executive Branch
The Constitution gives Congress the power to establish administrative agencies
and determine how they operate. Article I, Section 1 of the Constitution provides
that “[a]ll legislative Powers herein granted shall be vested in a Congress of the
United States.” Section 8 provides further that Congress
... shall have Power ... [t]o make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any Department
or Officer thereof.
In turn, the Constitution gives the President considerable power to manage the
executive branch. Article II, Section 1 vests the executive power in the President,
and Section 3 provides that the President “shall take Care that the Laws be faithfully
executed.” However, this power is limited. As one commentator states, the
President’s duty is “to ensure that officials obey Congress’s instructions,” and Article
II’s ‘take Care’ clause “... does not create a presidential power so great that it can be
used to frustrate congressional intention.”9 Article II makes only two explicit10
references to executive departments. Section 2 states the President “may require
the Opinion, in writing, of the principal Officer in each of the executive Departments,
upon any Subject relating to the Duties of their respective Offices.” Section 2 also
8 Congress and the President share power to manage the executive branch in many venues
that are not within the scope of this report. For example, Congress can include provisos in
appropriations bills to prohibit the use of funds for certain activities, insert earmarks in
appropriations bills, or modify agency authorizing statutes to require management-relatednd
actions. For more discussion, see James P. Pfiffner, ed., The Managerial Presidency, 2 ed.
(College Station, TX: Texas A&M University Press, 1999); Fisher, The Politics of Shared
Power; Jones, Separate But Equal Branches; Gilmour and Halley, Who Makes Public
Policy?; Woll, American Bureaucracy; Keith E. Whittington and Daniel P. Carpenter,
“Executive Power in American Institutional Development,” Perspectives on Politics, vol.
1, no. 3 (Sept. 2003), pp. 495-513; and Morton Rosenberg, “Congress’s Prerogative over
Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan
Administration’s Theory of the Unitary Executive,” The George Washington Law Review,
vol. 57, no. 3 (Jan. 1989), pp. 627-703. The judicial branch also plays an important role in
influencing agencies and public administration. For a review of that literature, see Davidnd
H. Rosenbloom and Rosemary O’Leary, Public Administration and Law, 2 ed. (New York:
Marcel Dekker, 1997), pp. 301-319 (chapter 9). For discussion of federalism issues and the
powers of the states in contrast with powers of the federal government, see CRS Report
RL30315, Federalism, State Sovereignty and the Constitution: Basis and Limits of
Congressional Power, by Kenneth R. Thomas.
9 Rosenberg, “Congress’s Prerogative over Agencies and Agency Decisionmakers,” pp. 650-
10 The Constitution does not establish any specific departments or agencies.
mentions “Heads of Departments” when outlining the President’s appointment
In September 1789, Congress enacted two of the nation’s initial general
management laws. The Treasury Act established the Treasury Department and the
basic elements of the federal government’s financial management system (1 Stat. 65),
including provisions for warrants, accounts, and audits. Several days later, Congress
enacted a law to establish the annual salaries for the Secretaries of the Departments
of the Treasury, State, and War, and to impose a salary cap for clerk positions in
these departments (1 Stat. 67). By the end of the 18th century, only these three
departments and the Navy Department had been created, along with the office of
Attorney General and the Post Office.11 Nonetheless, after the nation’s founding,
elected officials gradually experienced greater difficulty in administering the federal
government of a growing nation.12
The Federalists, including Alexander Hamilton, had by 1801 “created from
almost nothing an administrative system,” including the establishment of an
independent chief executive vested with administrative authority, effective delegation
of authority by the President to heads of departments and subordinates, and the
formation of a fiscal system for the government.13 After ascending to power in 1801,
the Democratic-Republicans, led by Thomas Jefferson, generally accepted the
Federalist framework for government administration that they inherited.14 Congress,
however, became more active in its dealings with the administrative system than it
had been previously.15 In addition, the country was growing in geographic size and
11 Woll, American Bureaucracy, pp. 35-36, 60. The Continental Congress established the
Postmaster General position in 1775, and the Post Office was codified into law in 1789 (1
Stat. 70). The Post Office was not specifically established as an executive department by
Congress until 1872 (17 Stat. 283). For more information on the history of the United States
Postal Service, see The United States Postal Service: An American History 1775-2002
(Washington: U.S. Postal Service, 2003). Until the Civil War, Congress added only the
Department of the Interior to the initial group of departments (9 Stat. 395), and the
Department of Justice was not established until 1870 (16 Stat. 162).
12 For historical context on federal government organization and administration before the
century, see CRS Report RL31446, Reorganizing the Executive Branch in the 20 Century:
Landmark Commissions, by Ronald C. Moe, and Ronald C. Moe, Administrative Renewal:th
Reorganization Commissions in the 20 Century (Lanham, MD: University Press ofth
America, 2003). For more on the federal government’s administrative history before the 20
century, see four volumes by Leonard D. White: The Federalists: A Study in Administrative
History (Westport, CT: Greenwood Press, 1978); The Jeffersonians: A Study in
Administrative History, 1801-1829 (New York: Macmillan, 1951); The Jacksonians: A
Study in Administrative History, 1829-1861 (New York: Macmillan, 1954); and The
Republican Era: 1869-1901: A Study in Administrative History (New York: Macmillan,
13 White, The Federalists, p. 512.
14 White, The Jeffersonians, p. 553.
15 Ibid., pp. 89-107. For example, Congress demanded better information from executive
population; and by the end of the 1820s, “[b]oth Presidents and department heads
were badly overburdened with official work, but neither of the two obvious remedies
— delegation or provision of administrative assistants — were grasped.”16
Over time, and in response to the increasing volume of work in government
administration, federal employment rose from about 4,837 employees in 1816 to
36,672 in 1861.17 In addition, the organization of executive departments became
The structure of the executive departments in 1860 was much more complex than
in 1800.... The difference, may be stated, with some exaggeration, by asserting
that in 1800 a department consisted of the Secretary, clerks, and a field
establishment, while in 1860 a department consisted of the Secretary, a group of
bureaus handling the mass of routine business usually without the intervention
or even knowledge of the Secretary, and a field service that, in the larger18
establishments, exceeded in size the parent departments of an earlier day.
Several developments after the Civil War — including industrialization, the
Progressive Movement, efforts to combat the Great Depression, two world wars, and
increasingly complex social policy problems — led to the rise and growth of the
administrative state and significant challenges to effectively managing the executive19
branch. To deal with the complexity, “[b]y 1946 ... Congress had become a
delegator, vesting much of its legislative authority in administrative agencies, and a
great deal of the initiative for policy making and budgeting had passed to the
executive branch.”20 Observers noted that Congress sometimes found it difficult to
legislate in detail, and increasingly relied upon agencies’ discretion and technical
sources, pursued more intensive investigations, and established standing committees on
expenditures for the State, Treasury, War, Navy, and Post Office Departments, plus one on
16 Ibid., p. 557.
17 U.S. Department of Commerce, Bureau of the Census, Historical Statistics of the United
States, Colonial Times to 1970, part 2, chapters N-Z (White Plains, NY: Kraus International
Publications, 1989), p. 1103. Federal employment continued to increase, reaching 51,020
in 1871 and 157,442 by 1891.
18 White, The Jacksonians, p. 533. See also pp. 85-103 for more on the workload facing
19 For more on these developments, see Stephen Skowronek, Building a New American
State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge, UK:
Cambridge University Press, 1982), pp. 248-284; David H. Rosenbloom, Building a
Legislative-Centered Public Administration: Congress and the Administrative State, 1946-
1999 (Tuscaloosa, AL: University of Alabama Press, 2000); and Woll, American
Bureaucracy, pp. 35-75.
20 Rosenbloom, Building a Legislative-Centered Public Administration, p. 1. For example,
the Budget and Accounting Act of 1921 required the President to propose a budget for
Congress’s consideration, which “tended to frame congressional budgetary discussions,”
leading to Congress’s “[loss of] a substantial degree of control over federal spending” (ibid.,
expertise to flesh out, and even formulate, public policies. In other words, observers
argued that agencies sometimes exercised legislative powers.
In response, and also to improve executive branch management practices,
Congress over time expanded the number and types of general management laws to
address myriad aspects of the modern-day executive branch, as the entries in the CRS
compendium help show.21 For example, Congress moved to increase transparency
in its oversight of the executive branch by passing legislation such as the
Administrative Procedure Act (1946), the Freedom of Information Act (1966), the
Federal Advisory Committee Act (1972), and other laws described in the
compendium.22 To improve congressional oversight and increase executive branch
accountability, Congress established inspectors general (1978), enacted the
Congressional Review of Regulations Act (CRA), and required agency strategic
planning with the Government Performance and Results Act (1993).
However, Congress did not merely seek to improve its oversight capacity.
Congress also sought to reassert influence over the budget process with the
Congressional Budget and Impoundment Control Act (1974). Because many
agencies could not accurately account for their financial operations, Congress passed
the Chief Financial Officers Act (1990)23 and other laws to improve agencies’
capacities to manage their finances. The list goes on, as the compendium’s more
than 90 entries illustrate.
In sum, then, should general management laws be thought of as legislative
action and the results of congressional oversight, necessary to bring disciplined
management to executive branch agencies? Or, less favorably, should they be thought
of as statutory directives that stifle flexibility and initiative? Or does the answer lie
somewhere in between — for example, the laws narrow agency discretion in
management and perhaps help the President to motivate changes in agency
behaviors? The conclusion likely depends on the viewpoint of the questioner and the
situation at hand, but history can help shed light on the matter. In any case,
numerous and potentially controversial issues — both perennial and new — remain
which Congress may consider.
Before the report outlines some of these issues, however, the next section
discusses how scholars have approached an important question: to what extent can,
or should, management practices in the public and private sectors be compared?
21 Congress was not alone in pursuing management improvements in the executive branch.
Various Presidents also undertook management reform efforts — through executive orders
and by establishing commissions — to focus on government management and organization.th
See CRS Report RL31446, Reorganizing the Executive Branch in the 20 Century:
Landmark Commissions, by Ronald C. Moe.
22 Unless stated otherwise, the laws to which this report refers are included as entries in the
compendium, where more detailed citations and background can be found. See CRS Report
RL30795, General Management Laws: A Compendium, coordinated by Clinton T. Brass.
23 For example, see U.S. Congress, House Committee on Government Operations, Chief
Financial Officer Act of 1990, report to accompany H.R. 5687, 101st Cong., 2nd sess., Oct.
Comparing Management Practices in the
Public and Private Sectors
Can government be run like a private-sector company? Scholars and
practitioners often see points of similarity and overlap between management of the
public and private sectors, and frequently seek to take management-related “lessons
learned” from one sector to the other.24 They also conclude that key differences
should be recognized and respected. Thus, management and public administration
scholars have recommended caution, in general, before applying private-sector
management principles to government agencies.25
Public administration scholar Wallace Sayre is widely cited for his aphorism:
“public and private management are fundamentally alike in all unimportant respects”
[emphasis added].26 One of the most significant differences is that public-sector
agencies and private-sector companies operate under different sets of laws,27 which
were established to regulate public-sector and private-sector behaviors for very
different purposes. For example, under the Constitution and public law, government
has coercive power: government can regulate some private activity and collect
taxes.28 To prevent arbitrary exercise of coercive power, the framers of the
24 Much of the training given to students in professional schools of public policy and
administration, and much of the public-sector management literature, approach policy and
management problems from the perspective of political appointees and senior career
officials. These unelected officials have considerable administrative discretion in a world
where politics and administration are not always separable, and where the officials work
under laws and policies established by elected officials. As a result, considerable literature
exists regarding how senior agency officials can use this discretion (or seek additional
discretion) to improve government management practices and government “performance,”
or perhaps their definitions of performance. For more on this literature, see Laurence E.
Lynn Jr., Public Management as Art, Science, and Profession (Chatham, NJ: Chatham
House, 1996), Mark H. Moore, Creating Public Value: Strategic Management in
Government (Cambridge, MA: Harvard University Press, 1995), and Robert D. Behn,
Leadership Counts: Lessons for Public Managers from the Massachusetts Welfare,
Training, and Employment Program (Cambridge, MA: Harvard University Press, 1991).
25 A full treatment of the question — which has generated a large literature — is beyond the
scope of this report. However, this section of the report cites some of the key issues that
scholars and commentators have identified. For an overarching discussion of the subject by
staff writers of The Economist magazine, see John Micklethwait and Adrian Wooldridge,
“Managing Leviathan: The Public Sector,” in their The Witch Doctors: Making Sense of the
Management Gurus (New York: Times Books, 1996), pp. 277-303.
26 Quoted in Graham T. Allison Jr., “Public and Private Management: Are They
Fundamentally Alike in All Unimportant Respects?,” in Frederick S. Lane, Current Issuesnd
in Public Administration, 2 ed. (New York: St. Martin’s Press, 1982), p. 13.
27 For a discussion of public law as a foundation for public-sector management, see Ronald
C. Moe and Robert S. Gilmour, “Rediscovering Principles of Public Administration: The
Neglected Foundation of Public Law,” Public Administration Review, vol. 55, no. 2
(Mar./Apr. 1995), pp. 135-146.
28 Theodore J. Lowi and Benjamin Ginsberg, American Government: Freedom and Power
Constitution established a system of checks and balances and separation of powers.29
Federal government agencies may only act under authority provided in public law,
as formulated, executed, and adjudicated by Congress, the President, and the courts,
on behalf of the American public. These laws authorize an agency’s mission (i.e.,
its purpose for being) and establish how the agency is required to operate.30 In
contrast, a private company operates under laws enacted to create and regulate a
functioning market economy (e.g., antitrust and financial reporting laws).
Furthermore, these laws generally do not prescribe what the company is to do, or how
the company should operate. Under this framework of law, a company is, in
principle, accountable primarily to its particular owners or shareholders, who bear
Scholars and commentators have cited many other differences between
government agencies and private sector organizations. For example,
[t]o a much greater extent than is true of private bureaucracies, government
agencies (1) cannot lawfully retain and devote to the private benefit of their
members the earnings of the organization, (2) cannot allocate the factors of
production in accordance with the preferences of the organization’s
administrators, and (3) must serve goals not of the organization’s own choosing.
Control over revenues, productive factors, and agency goals is all vested to an
important degree in entities external to the organization — legislatures, courts,
politicians, and interest groups. Given this, agency managers must attend to the32
demands of these external entities.
In addition, government frequently encounters comparative difficulty measuring —33
and coming to consensus on how to measure — the performance of agencies.
(New York: W.W. Norton & Company, 1990), pp. 8-10.
29 See, for example, Federalist Paper 51, in James Madison, Alexander Hamilton, and John
Jay, The Federalist Papers (New York: Penguin, 1987), pp. 318-322.
30 For discussions of the status of government corporations and quasi-governmental
organizations, see CRS Report RL30365, Federal Government Corporations: An Overview;
CRS Report RL30533, The Quasi Government: Hybrid Organizations with Both
Government and Private Sector Legal Characteristics; and CRS Report RL30340,
Congressionally Chartered Nonprofit Organizations (“Title 36 Corporations”): What They
Are and How Congress Treats Them; all by Ronald C. Moe.
31 The private sector is not immune, however, from accountability and governance problems.
See Lucian Arye Bebchuk and Jesse M. Fried, “Executive Compensation as an Agency
Problem,” Journal of Economic Perspectives, vol. 17, no. 3 (summer 2003), pp. 71-92.
32 James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It
(New York: Basic Books, 1989), p. 115.
33 See, for example, Allison, “Public and Private Management,” p. 18 (citing a
commentator’s conclusions); Peter F. Drucker, Management, pp. 130-166; and Henry
Mintzberg, “Managing Government, Governing Management,” Harvard Business Review,
May-June 1996, pp. 79-80.
Major Themes and Management Policy Options
Given the history of managing the executive branch and also the differences
between management practices in the public and private sectors, the entries in the
compendium of general management laws may raise public policy issues, both for
the general management laws themselves and for specific agencies. Moreover, when
considering the compendium as a whole — viewing the general management laws
together — several major themes emerge. Each of these themes, in turn, may raise
potential issues and “management policy” options for Congress.34
Discretion for the Executive Branch
Congress frequently faces the question “How much discretion should we leave
for the executive branch?”35 For example, when examining or reexamining any of
the general management laws, the question often becomes how much discretion the
executive branch should be authorized to determine the contents, scope, or priorities
of agency actions.
Advantages and Disadvantages. This question has been heavily debated
for some time. On one hand, giving discretion to the executive branch can provide
agencies flexibility to tailor the implementation of laws to specific circumstances as
the President or agencies perceive them. In addition, some observers argue that this
discretion allows agencies to be more responsive if circumstances later change. For
example, an agency might take less time to issue and implement regulations, or to
exercise initiative to pursue a management action, than the time necessary for a law
to be passed. Further, many argue that when agency responsibilities involve
scientific standard-setting or other technical judgments, the executive is often in a
better position to do so.
On the other hand, discretion can allow the President or an agency to make
decisions or engage in operations that might not have support from Congress, had the
subject been considered explicitly during the legislative process. The President’s or
an agency’s views regarding the “right thing to do” might be at variance with those
of Congress and key stakeholders. Furthermore, some argue that if the President or
34 Here, the term management policy is defined generally as “the principles or methods
under which the executive branch, or an agency, is to be managed.” In the management and
business literatures, the terms management policy and business policy have been used
interchangeably, but without precise consensus on definitions. One textbook defined
business policy as “the functions and responsibilities of senior management, the crucial
problems that affect the success of the total enterprise, and the decisions that determine the
direction of the organization, shape its future, and, when well implemented, secure itsth
achievement” (Joseph L. Bower, et al., Business Policy: Managing Strategic Processes, 8
ed. (Chicago: Irwin, 1995), pp. 2-3). See also George A. Steiner, John B. Miner, andrd
Edmund R. Gray, Management Policy and Strategy: Text, Readings, and Cases, 3 ed. (New
York: Macmillan, 1986), pp. 3-10.
35 The literature surrounding this topic is extensive. In Building a Legislative-Centered
Public Administration, Rosenbloom generally argues that many general management laws
were enacted as an effort to provide the executive with discretion, while still retaining
congressional control and oversight over agency actions.
an agency has different views and acts accordingly, Congress might not have
resources or time to notice the agency actions or to intervene in a timely way.36
Granting discretion to the executive branch can also put key decisions in the power
of unelected agency officials, when some stakeholders might wish for more
transparency and political accountability.
With regard to general management laws, Congress faced this tension between
flexibility and accountability in 2002 and 2003, when considering whether to grant
the Departments of Homeland Security (DHS) and Defense (DOD) discretion to
determine some of the contents of their human resources management (HRM)
systems through regulation.37 A similar situation arose in 1993, when the Clinton
Administration’s National Performance Review (NPR) recommended a number of
ways to “cut red tape” in procurement policy, culminating in passage of the Federal
Acquisition Streamlining Act of 1994 (FASA; 108 Stat. 3243).38 The tension is
perhaps most common in the regulatory arena.
Management Policy Options. In considering situations when Congress
weighs whether to give discretion to an agency, and if so, to what extent, scholars
have noted four general options that can be used alone or in combination by Congress
to address delegation situations and help balance flexibility with accountability.39
!Contract design:40 Congress can set the conditions for a delegation
of authority to better ensure that its intentions will be carried out by
36 Congress can seek to reverse or modify an agency’s decision, either through oversight or
legislative action. However, a President may decide to veto such a bill, forcing Congress
to muster a two-third majority in each chamber for the override.
37 Separate authorities for DHS and DOD to establish new HRM systems were enacted into
law, as described in the Title 5, U.S.C., Chapter 97 and Chapter 99 entries in the
compendium. However, in both cases, DHS and DOD were required to do so in regulations
prescribed jointly with the Office of Personnel Management (OPM).
38 For more information, see Office of the Vice President, From Red Tape to Results:
Creating a Government That Works Better & Costs Less, Report of the National
Performance Review (Washington: GPO, Sept. 7, 1993) and CRS Report RL30596, The
National Performance Review and Other Government Reform Initiatives: An Overview,
39 The four general options come from D. Roderick Kiewiet and Mathew D. McCubbins,
The Logic of Delegation: Congressional Parties and the Appropriations Process (Chicago:
University of Chicago Press, 1991), pp. 27-38. The illustrative options come from sources
including the Kiewiet-McCubbins book and this report’s author. Kiewiet and McCubbins
note that these four general options can sometimes impose financial and other costs on
40 Here, the term contract is figurative, and means “the terms and conditions under which
authority or power is delegated from the legislative body to an agency.” In a delegation
situation, theorists see one actor, the legislature, as a principal, and the other actor, an
agency, as an agent for the principal. Because the agent can take action that is optimal in
light of his or her own goals, instead of the principal’s intended goals, theorists call this
situation an agency problem. In response, theorists often advocate establishing a contract
that aligns the terms and conditions of the delegation (sometimes including incentives for
the agent) with the principal’s goals, in order to accomplish the principal’s goals.
the executive branch, as well as reduce risk of adverse
consequences. For example, Congress could establish goals,
sanctions, probation periods, or sunsets; require the use of pilot
projects; or establish “profit-sharing relationships” (i.e., establish
incentives for agencies to behave in ways that benefit both the
agency and the government as a whole — for example, an agency
might be allowed to retain 50% of unspent funds after the end of a
fiscal year, thereby providing an incentive against end-of-the-year
“use it or lose it” spending behaviors).
!Screening and selection mechanisms: To avoid delegating
authority to an agency in a way that could risk poor “on-the-job”
performance with a given task, program, or management initiative,
Congress can try to look beforehand for signals or other information
that indicate whether the executive branch agency and its officials
will likely do the work effectively. For example, Congress could
convene hearings to determine whether the agency rigorously
analyzed a problem and its potential solutions or look for evidence
that the agency has organizational capacity and management skill to
do the job.41
!Monitoring and reporting requirements: To increase
accountability and transparency for a given activity or program,
Congress can require agencies to report their “actions taken,”
milestones they have reached, and any information the agencies have
obtained during their activities. The rationales might be to (a)
monitor agency actions that are difficult to oversee and (b) make
available information that is difficult for Congress and outside
stakeholders to access. The advent of information technology and
the Web may enable such reporting to be close to real-time and more
frequently updated. However, some commentators argue that a
proliferation of reporting requirements can be burdensome, and that
reports to Congress are not always used.
!Institutional checks: When authority is delegated to an agency,
Congress can ensure that one or more additional agencies or entities
can veto or block the delegate agency’s actions. For example,
Congress could involve another agency in the promulgation of
regulations (such as the DHS personnel system, which requires that
regulations be prescribed jointly by DHS and the Office of Personnel
Management (OPM)); require notice and comment before an agency
is allowed to proceed with certain actions; provide sequential
funding within an appropriation that is contingent upon certain
conditions at each of several milestones; require the agency or
additional agencies to conduct an independent study examining an
41 For presidential appointments that require the advice and consent of the Senate, hearing
questions often relate to a nominee’s skills and reputation.
issue; or use “committee vetoes”42 to prevent certain actions absent
congressional committee approval.
Standardization vs. Customization
Should the management laws under which agencies operate be standardized,
with rules that apply uniformly to many different agencies? Or should some (or all)
agencies have agency-specific laws that are customized to each agency’s internal and
external environments? Or should there be a mix of these two approaches? This
tension between standardization and customization arises frequently for Congress
with respect to management of the executive branch — where varying degrees of
standardization and customization can exist in general management laws, authorizing
statutes, or appropriations.
Three General Approaches. Many experts believe standardization can help
improve executive branch transparency and accountability. For example, the
Administrative Procedure Act, enacted in 1946, was intended to establish basic
requirements across the executive branch for agency rulemaking. With regard to
another functional area, financial management, Congress introduced standardization
in stages. The Chief Financial Officers (CFO) Act of 1990 (104 Stat. 2838), as
amended by the Government Management Reform Act of 1994 (GMRA; 108 Stat.
3410), required 24 major executive departments and agencies to prepare audited
financial statements covering all their accounts. This requirement contributed to43
many agencies receiving unqualified (“clean”) opinions in FY2002. In 2002,
Congress further amended the CFO Act to extend similar requirements to most other
executive agencies with passage of the Accountability of Tax Dollars Act (116 Stat.
2049).44 Standardization can also promote accountability by putting the burden of
proof on agencies to demonstrate when (or if) exceptions are necessary.
By contrast, customization can also be beneficial for effective management.
Customization can help align an agency’s management with both the agency’s
internal environment (e.g., culture, size, decision-making processes) and its external
environment (e.g., economic conditions, events, stakeholder and client needs).
Congress regularly uses authorizing statutes, appropriations, and accompanying
reports to require or direct specific actions (or prohibitions) for agencies, but
Congress also builds customization into general management laws. For example,
until recently, small agencies were not generally required to prepare audited financial
statements. Similarly, when the Department of Homeland Security (DHS) was
42 Committee vetoes continue to be used after the Supreme Court’s ruling in INS v. Chadha
(1983), which struck down the legislative veto. For more on committee vetoes, see Louis
Fisher, “Congress As Co-Manager of the Executive Branch,” in James P. Pfiffner, ed., The
Managerial Presidency, pp. 306-308; and Louis Fisher, “The Legislative Veto: Invalidated,
It Survives,” Law and Contemporary Problems, vol. 56, no. 4 (autumn 1993), pp. 273-292.
43 An unqualified opinion indicates that an auditor found that an agency’s financial
statement presented a variety of measures of the agency’s financial condition fairly, in all
material respects, and in conformity with specified accounting principles.
44 However, Congress left some discretion to the President by allowing the Office of
Management and Budget to exempt very small agencies.
established by the Homeland Security Act of 2002 (116 Stat. 2135, at 2145), the new
agency’s CFO position was not subject to CFO Act requirements.45 Another example
comes from the HRM area. In the last two years, DHS and the DOD were granted
authority to customize several significant (but not all) aspects of their HRM systems
apart from the standardized laws of Title 5 of the United States Code.46
A third possibility is to mix the two approaches. The examples described above
move toward standardization or customization, but also represent varying degrees of
a mixed approach — balancing standardization with customization. Under a mixed
approach, general management laws are applied to all or most agencies, but Congress
can, nevertheless, make exceptions to a smaller or larger extent, or allow some
flexibility within the laws’ broader requirements.47 An example of the mixed
approach is the Government Performance and Results Act of 1993 (GPRA; 107 Stat.
to develop strategic plans. However, GPRA provided only a general framework
within which agencies were required to comply, without prescribing detailed format
Advantages and Disadvantages. Each of these approaches —
standardization, customization, and mixed — can bring advantages and
disadvantages. Alongside the advantages described above, standardization can
sometimes be too rigid, stifling initiative or creativity. In turn, customization can
sometimes reduce transparency or accountability if agencies do not report in real-time
on the nature and status of their customized efforts, or if oversight and analytical
resources are too scarce or distracted to support monitoring how well a customized
law is working. Customization can also lead to different entities working at cross-
purposes. For example, if agencies gain pay flexibility but then were to begin a
bidding war for certain types of employees, the budgets of each agency would come
under pressure. Mixed approaches can suffer from all these problems. Therefore,
in addition to the three general approaches outlined above, Congress also has policy
options for avoiding these problems.
Management Policy Options. Generally, the decision to use one of these
approaches is highly contextual, depending on the nature of “the problem” to be
solved (as defined differently by numerous stakeholders), the problem’s history, the
actors who are involved, and a host of other factors. Nonetheless, one overall option
45 The 108th Congress is considering legislation (H.R. 2886, S. 1567) that would, if enacted,
include DHS among the CFO Act agencies.
46 See the Title 5, U.S.C., Chapter 97 and Chapter 99 entries in the compendium for more
on this subject. The 108th Congress is considering legislation (S. 610; H.R. 1085) that would
provide flexibilities for the National Aeronautics and Space Administration (NASA). Other
titles of the United States Code also contain personnel laws, as the beginning of the
compendium’s section VII.A., “Title 5: The Federal Civil Service,” describes.
47 This approach is somewhat akin to what management writers Thomas Peters and Robert
Waterman described as “simultaneous loose-tight properties.” See Thomas J. Peters and
Robert H. Waterman Jr., In Search of Excellence: Lessons from America’s Best-Run
Companies (New York: Warner Books, 1982), pp. 318-325. For an overall assessment of
Peters’ thinking, see Micklethwait and Wooldridge, The Witch Doctors, pp. 79-92.
is to examine regularly whether increased customization or standardization in a
general management law is necessary for improved transparency, accountability,
efficiency, or effectiveness. Analytical support in weighing the evidence can come
from a variety of sources including agency management, agency program evaluations,
inspectors general, the General Accounting Office (GAO), and outside scholars and
Another overall option in situations where customization is widespread (e.g.,
human resources related laws) is to reduce the analytical burden for Congress and
other stakeholders in their efforts to monitor the situation, by requiring the executive
branch to maintain comprehensive, real-time descriptions of the current state of
affairs and maintain updated comparisons showing any differences across agencies.
As illustrated by the compendium’s introductory profile of Title 5 human resources
laws (section VII.A., “Title 5: The Federal Civil Service”), increasing fragmentation
of civil service laws may increase the difficulty of monitoring, comparing, and
analyzing government-wide developments in general areas like pay, performance
management, and adverse actions and appeals, for different agency and bureau
workforces.48 Establishment of reporting requirements in areas of widespread
customization may help reduce the analytical burden for Congress and the public in
examining the extent of customization and standardization, or exploring possible
changes if customization does not produce the desired outcomes. Such reporting
might be possible on a real-time basis on the Web. Central management agencies
like the Office of Management and Budget (OMB), OPM, the General Services
Administration (GSA), the Financial Management Service (FMS) of the Treasury
Department, or others could be candidates to report how certain management policies
are customized and, thereby, facilitate government-wide analysis and comparisons.
However, such requirements would likely entail costs for the reporting agencies.
Functional Silos vs. Integrated General Management
It is no coincidence that the general management laws can be grouped into
“functions,” such as financial management, human resources, and procurement.
Most organizations in the private and public sectors manage themselves, to a greater
or lesser extent, with a functional orientation or functional structures.49 For example,
even when an organization is structured according to “customers” — or, as in the
case of the Internal Revenue Service, “taxpayer groups” — functional perspectives
still reside within business or administrative units, shared services, and
48 The fragmentation exists among several different titles of the United States Code, and
within Title 5, exists across multiple agencies, including DHS, DOD, and the Internal
Revenue Service (IRS).
49 As discussed previously, in the management literature, functions refer to “business areas
that require related bundles of skill” or “groups of people with similar skills and performing
similar tasks,” such as human resources, financial management, and information technology.
This usage of the term function is different from two others, in Title 5 of the United States
Code and in budgetary accounting.
50 The Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (112 Stat. 685,
Two Perspectives on Management. A functional perspective is
considered important, because it can boost efficiency through specialization and
ensure centralized control over strategic decisions. However, if the functional
orientation becomes too inward-looking, organization-wide coordination and
decision-making can become problematic, and an organization’s internal
development of general managers can be inhibited.51 Thus, borrowing a term from
the management literature, various functions can tend to operate as functional silos,
in isolation from each other. This can create problems for the organization as a52
whole, or cause opportunities to be missed.
Management literature acknowledges the continuing importance of functional
perspectives, but only within the broader context of an integrated, general53
management perspective. An excerpt from one business school’s website explains
All of us come to a problem, opportunity, or decision with a set of assumptions
that are based on our backgrounds and experiences. For example, someone who
has spent years in a finance function concentrating on, say, managing cash flow,
raising capital, and budgeting will have a particular point of view that is different
from someone whose experience has been in marketing focusing on product
development, segmenting customers, product positioning, etc. Two implications
arise from this: (1) Each person will have only a “limited” view of the whole
story, and may be driven to define a problem as a “finance” or “marketing”
problem because this is what their experience tells them, and (2) Each person
may be correct, but only partially.... The solution is to develop a general
management perspective. The general management perspective seeks to integrate
at 689; P.L. 105-206) required the IRS to organize itself by taxpayer groups, but IRS’s new
organizational structure created specialist functional organizations throughout the agency.
The organization design literature has reached consensus that no one type of organizational
orientation or structure (by function, geography, client, customer, product, matrix, etc.) is
necessarily best. Instead, a recurrent theme is that an organization’s structure should flow
from its strategy for accomplishing its goals. Even then, however, different organizational
structures have different sets of advantages and disadvantages. For discussion, see Jay R.
Galbraith, Designing Organizations, rev. (San Francisco: Jossey-Bass, 2002), pp. 17-37, and
David A. Nadler and Michael L. Tushman, Competing by Design (New York: Oxford
University Press, 1997), pp. 21-41.
51 See Samuel C. Certo and J. Paul Peter, Strategic Management: A Focus on Process, 2nd
ed. (Homewood, IL: Irwin, 1993), pp. 136-141.
52 The silo metaphor comes from an image of vertical silos on an organization chart that do
not communicate with each other horizontally. To illustrate the same point, some
commentators use the synonymous term stovepiped organization. See Schermerhorn, Core
Concepts of Management, p. 120.
53 Here, the term general management has a different meaning from the definition offered
previously. In the current case, general management corresponds to the integration of
multiple functional perspectives into one holistic, or general, perspective. Previously,
general management referred to laws that apply across multiple agencies. Both of these
senses of the term general management can be helpful when grappling with management
multiple functional perspectives to arrive at a complete understanding of a54
problem or opportunity.
A recent example of this general management perspective could include efforts to use
information technology to help improve human resources management and financial55
Management Policy Options. An integrated general management
perspective — especially when combined with the perspective of focusing on
individual functions — provides a potential toolbox of options for addressing
executive branch management problems. Many of the general management laws
focus on improving the executive branch’s management fundamentals in individual
functional areas (e.g., cleaning up agency finances, improving the process for
purchasing technology, or addressing human capital problems). But the general
management laws need not be viewed in isolation from one another. Instead, from
an integrated general management perspective, these laws may be utilized to provide
mutual support to each other, as illustrated below. Integration could occur through
a variety of means, including changes to the general management laws, agency
authorizing statutes, and agency appropriations, and through other legislative and56
oversight tools. For example, to integrate functional perspectives, Congress might
!leveraging the E-Government Act of 2002 (information technology
perspective) to achieve more timely and frequent financial and
performance reporting (financial management and program
evaluation perspectives), by requiring agencies and the OMB to
utilize the Federal Enterprise Architecture57 for reporting results
closer to real-time, in order to better support congressional
oversight, reauthorization, and appropriations (budgeting
[http://oracle-www.dartmouth.edu/dart/groucho/tuck_mba_program. s yl l a b u s ? p _ i d = A G M ] ,
visited Jan. 15, 2004. A hard copy is available from the author’s files.
55 See Ted Leventhal, “White House Expands E-government Initiative,” GovExec.com, Feb.
4, 2004, available at [http://www.govexec.com/dailyfed/0204/020404tdpm2.htm], visited
Feb. 4, 2004. A hard copy is available from the author’s files.
56 These examples are illustrative only. Each would entail advantages and disadvantages.
57 The Federal Enterprise Architecture (FEA), along with its “reference models,” is the
blueprint released by OMB for managing information technology (IT) investments across
multiple agencies (e.g., payroll services or rulemaking). The FEA’s Performance Reference
Model (PRM) is OMB’s framework for “characteriz[ing] performance in a common manner
where necessary.” OMB’s directions for the President’s FY2005 budget proposal require
agencies to use the PRM for their IT business cases. For more on the FEA, see
[http://www.feapmo.gov], visited Jan. 28, 2004. OMB’s FY2005 budget guidance to
agencies regarding the FEA and PRM is included in U.S. Office of Management and
Budget, Circular No. A-11, “Preparation, Submission, and Execution of the Budget,”
revised, July 2003, Section 300, available at [http://www.whitehouse.gov/omb/circulars/
index.html], visited Jan. 28, 2004.
!directing appropriations (budget perspective) to ensure specific
funding is used to hire, train, and retain contract oversight specialists
(human resources perspective) in order to help certain agencies
better manage and monitor their contracts (acquisition perspective);58
!restructuring the budget accounts of some agencies (budget
perspective) to better align resources with individual programs
(organizational perspective) and program evaluations of these
programs (performance measurement and program evaluation
perspective) to align resources with results; or
!leveraging the Chief Human Capital Officers Act of 2002 by
requiring OPM to develop metrics for assessing whether agencies
dedicate sufficient staff resources (human resources perspective) for
contract management and oversight (acquisition and program
Other options for leveraging functional perspectives into an integrated general
management perspective could include various combinations of the general
management laws in the compendium. These options could be constructed to apply
generally to many agencies or only to specific agencies, and could include any of the
following functional perspectives: information policy, regulation, strategic planning,
performance measurement, program evaluation, auditing, investigation, financial
management, budgeting, accounting, organization, acquisition management, real
property management, intergovernmental relations, human resources management,
58 Numerous sources cite contract management and oversight as a serious and continuing
problem. The FY2002 report from agency inspectors general (IGs) to the President stated
“[t]he IG community ... has noted that generally, the Federal government has been lax in
its contractor oversight.” (See President’s Council on Integrity and Efficiency and
Executive Council on Integrity and Efficiency, A Progress Report to the President, Fiscal
Year 2002 (Washington: 2002), p. 17, available at [http://www.ignet.gov], visited Jan. 28,
2004.) In turn, the General Accounting Office included contract management on its January
2003 “High-Risk List” for the National Aeronautics and Space Administration (NASA) and
the Departments of Defense (DOD) and Energy (DOE). See U.S. General Accounting
Office, High-Risk Series: An Update, GAO-03-119, Jan. 2003.
59 See the discussion of Title 5 of the United States Code, Chapter 14 in the compendium
for more on OPM’s human capital metrics provisions. For discussion of agency
procurement staffing, see David Phinney, “More Big Contracts, Fewer Managers: Agencies
Strain to Provide Oversight,” Federal Times, July 7, 2003, p. 1. In the report accompanying
the bill that became the Government Performance and Results Act of 1993, the Senate
Governmental Affairs Committee called this type of phenomenon “hollow government”:
“where an agency has inadequate resources to meet its public missions.” See U.S. Congress,
Senate Committee on Governmental Affairs, Government Performance and Results Act ofrdst
Making and Measuring Progress
The history of federal government management reform is replete with efforts,
in both the legislative and executive branches, to improve agencies’ performance,
organization, and management practices.60 Many of these efforts focused on
improving agency management practices and closely involved the general
management laws. However, in spite of these efforts, many observers have
concluded that progress has been difficult to achieve.
Challenges to Making Progress. Congress has faced major challenges in
its oversight of executive branch management, especially regarding:
!how to ensure executive branch agencies improve their management
practices by complying with general management laws, and
!how (or whether) to measure agencies’ progress in improving their
Management literature generally holds that measurement can be a strong
motivator to action, and frequently quotes industrial psychologist Mason Haire:
“What gets measured gets done. If you are looking for quick ways to change how an61
organization behaves, change the measurement system.” While measurement
systems can motivate action and commitment, they can also create perverse
incentives in some situations. To use an analogy from the private sector, if a
company’s employees are rewarded only on the basis of short-term profits and not
long-term research and development that would keep the company profitable in the
future, employees may show less interest in longer-term performance.62 An
illustration more applicable to the federal government may be the achievement of
unqualified financial audits, where “[c]lean audits of an agency’s financial systems
... look like a sign of good fiscal management, but not if they are achieved only by
applying brute force at audit time in manually working around deficient systems.”63
60 For a treatment of this history from a legislative perspective, see Rosenbloom, Building
a Legislative-Centered Public Administration. For a treatment from an executive branch
perspective, with an emphasis on reorganization, see Peri E. Arnold, Making the Managerialnd
Presidency: Comprehensive Reorganization Planning 1905-1996, 2 ed. (Lawrence, KS:
University Press of Kansas, 1998). For a treatment that is critical of past management
reform efforts, see Paul C. Light, The Tides of Reform: Making Government Work, 1945-
61 Quoted in Richard L. Lynch and Kelvin F. Cross, Measure Up! Yardsticks for Continuous
Improvement (Cambridge, MA: Blackwell, 1991), p. 144.
62 For more on perverse incentives, see Steve Kerr, “On the Folly of Rewarding A, While
Hoping for B,” Academy of Management Journal, vol. 18, no. 4, 1975, pp. 769-783. In
response, some management authors have proposed “balanced scorecards,” which guard
against perverse incentives by including several perspectives in an agency’s performance
measures. See Robert S. Kaplan and David P. Norton, “The Balanced Scorecard —
Measures That Drive Performance,” Harvard Business Review, Jan./Feb. 1992, pp. 71-79.
63 Gregory F. Treverton, “The State of Federal Management,” Government Executive, Jan.
Brief History of Measuring Progress. Some history helps put the current
situation into context. In the last 25 years, agency inspectors general (IGs) and the
GAO have reported persistent, major management problems in executive branch
agencies in such areas as financial management, acquisition, information technology
investment, human resources, and the strategic planning and implementation of major
programs64 — areas the general management laws were intended to address.
Beginning in 1992 and most recently in 2003, GAO released six continually updated
series of reports detailing “high risk” areas and major management challenges that65
affect specific agencies or cut across many agencies government-wide. GAO stated
in these reports that progress was made by the executive branch and Congress to
address these issues, but GAO also reported that much work remained to be done.
Both before and during this period, several management reform initiatives were
pursued by presidential administrations, including, for example, President Ronald
Reagan’s Reform ’88 initiative; President George H. W. Bush’s efforts to address
financial management, information resources management, and high risk areas; and
President William Clinton’s NPR.66
Members of Congress and their committee staff frequently expressed concern
during this period about the state of government management. For example, in 1992,
the majority staff of the House Committee on Government Operations took a
retrospective look and recommended actions to improve central management,
procurement, information resources management, financial management, and human67
resources management. Nearly a decade later, in June 2001, Senator Fred
64 Establishment of agency IGs in the middle to late 1970s had been driven in part by high-
profile management scandals. In turn, GAO began its “high risk” program in 1990 in the
aftermath of more recent management scandals. For more on creation of agency IGs, see
Paul C. Light, Monitoring Government: Inspectors General and the Search for
Accountability (Washington: Brookings Institution, 1993).
65 The most recent set of reports are summarized and listed in GAO’s overview document:
U.S. General Accounting Office, High-Risk Series: An Update. In the report summary,
GAO defines “high risk” programs or operations as vulnerable to fraud, waste, abuse, and
mismanagement, and states that “[i]ncreasingly, we also are identifying high-risk areas to
focus on major economy, efficiency, or effectiveness challenges.” The President’s Office
of Management and Budget (OMB) began identifying high-risk programs in 1989 and
included reports in the President’s annual budget proposals from FY1992 (released Feb.
66 For sympathetic descriptions of these reform initiatives, see U.S. Executive Office of the
President, Office of Management and Budget, Management of the United States
Government, Fiscal Year 1989 (Washington: GPO, 1988) [President Reagan]; U.S.
Executive Office of the President, Office of Management and Budget, Budget of the United
States Government, Fiscal Year 1993, part 1 (Washington: GPO, 1992), pp. 305-411
[President George H. W. Bush]; and U.S. Office of the Vice President, From Red Tape to
Results [President Clinton].
67 U.S. Congress, House Committee on Government Operations, Managing the Federal
Government: A Decade of Decline, committee print, 102nd Cong., 2nd sess., Dec. 1992
Thompson, Chairman of the Senate Governmental Affairs Committee, released a
report concluding that “urgent federal government management problems” faced the
administration of President George W. Bush, including problems regarding the
federal workforce, financial management, information technology, and overlap and
More recently, in August 2001, President George W. Bush’s Office of
Management and Budget released the President’s Management Agenda (PMA),
which includes five government-wide initiatives: (1) Strategic Management of
Human Capital, (2) Competitive Sourcing, (3) Improved Financial Performance, (4)
Expanded Electronic Government, and (5) Budget and Performance Integration.69
Under the PMA, OMB leads quarterly evaluations of agencies to gauge “status”
and “progress” for each of the initiatives with red, yellow, or green “stoplight
scores,” based on published “standards for success.”70 These standards cite what the
Bush Administration believes should be done to solve the most difficult management
problems facing the federal government. According to the PMA website, an agency
is green on status for an initiative if the agency meets all the standards for success,
yellow if it has achieved some, but not all, of the criteria, and red if it has any one of
a number of serious flaws.71 For progress, OMB assesses each agency “on a case by
(Washington: GPO, 1993).
68 Sen. Fred Thompson, Committee on Governmental Affairs, Government at the Brink, 2
vol. (Washington: June 2001), available at [http://www.senate.gov/~gov_affairs/], visited
Jan. 22, 2004, from the “Committee Documents” menu, under “Reports.”
69 See U.S. Office of Management and Budget, The President’s Management Agenda
(Washington: GPO, 2001) and the President’s PMA website, [http://www.results.gov/
agenda/], visited Jan. 22, 2004. For an overview of the PMA, see CRS Report RS21416,
The President’s Management Agenda: A Brief Introduction, by Virginia A. McMurtry. For
an overview of OMB, see CRS Report RS21665, Office of Management and Budget: A Brief
Overview, by Clinton T. Brass.
70 For the PMA, OMB adopted terminology that is widely used in the field of project
management (e.g., deliverables, timelines, status, progress, stoplight, etc.), where stoplight
colors are often used to provide performance measures that are visually simple, which can
help time-constrained project managers and overseers assimilate large amounts of
information quickly. For more on project management performance reporting, see Project
Management Institute, A Guide to the Project Management Body of Knowledge (PMBOK
Guide), 2000 ed. (Newtown Square, PA: PMI, 2000), pp. 122-124.
71 The standards for determining agency status scores have changed twice since original
publication. The first version was published in the President’s FY2003 budget proposal:
U.S. Executive Office of the President, Office of Management and Budget, Budget of the
United States Government, Fiscal Year 2003, Analytical Perspectives (Washington: GPO,
2002), pp. 411-415. The second version was published in the President’s FY2004 budget
proposal: U.S. Executive Office of the President, Office of Management and Budget, Budget
of the United States Government, Fiscal Year 2004, Performance and Management
Assessments (Washington: GPO, 2003), pp. 4-7. A third version was created later in 2003,
and is available at [http://www.results.gov/agenda/standards.pdf], visited Jan. 22, 2004, and
from the author’s files.
case basis against the deliverables and time lines established for the five initiatives,”
as agreed to by the agency and OMB. A green on progress means that
“[i]mplementation is proceeding according to plans agreed upon with the agencies.”
In turn, yellow indicates “[s]ome slippage or other issues requiring adjustment by the
agency in order to achieve the initiative objectives on a timely basis.” Finally, red
shows the “[i]nitiative [is] in serious jeopardy” and is “[u]nlikely to realize objectives
absent significant management intervention.”
The five government-wide PMA initiatives fall, to some extent, into functional
categories. However, OMB stated that the five initiatives would be mutually
reinforcing, where efforts in one initiative would be consistent with and benefit from
efforts in the other initiatives.72 Notably, the five initiatives also use a number of the
general management laws to achieve the PMA’s goals. For example,
!the Competitive Sourcing initiative utilizes (“leverages”) the Federal
Activities Inventory Reform (FAIR) Act of 1998;
!the Improved Financial Performance initiative leverages the
Antideficiency Act, Federal Managers’ Financial Integrity Act of
1982, Chief Financial Officers Act of 1990, Government
Management Reform Act of 1994, and Federal Financial
Management Improvement Act (FFMIA) of 1996;
!the Expanded Electronic Government initiative leverages the
Clinger-Cohen Act of 1996, E-Government Act of 2002, and Federal
Information Security Management Act (FISMA) of 2002; and
!the Strategic Management of Human Capital and Budget and
Performance Integration initiatives leverage the Government
Performance and Results Act of 1993.
In the news media, some agencies have stated that the PMA is being taken
seriously, and that significant progress is being made.73 However, several additional
observations about PMA measurement practices can be made that relate to
congressional oversight of the general management laws. First, PMA evaluation
practices have not been fully transparent outside of the executive branch. While the
standards for success are publicly available, detailed rationales and worksheets
behind these grades are not. By contrast, OMB assessments of agency programs
using the Program Assessment Rating Tool (PART) — a component of the Budget
and Performance Integration initiative — were considerably more transparent. OMB
published overall PART assessments in the President’s FY2004 budget proposal, but,
72 U.S. Office of Management and Budget, The President’s Management Agenda, p. 4.
73 See, for example, Adam Stone, “Reforms Help HHS Agency Ace Management
Scorecard,” Federal Times, Sept. 29, 2003, p. 22; Mollie Ziegler, “To Boost Performance,
GSA’s Marshall Readies Rollout of Merit Pay,” Federal Times, Sept. 29, 2003, p. 30; and
Bara Vaida, “Administration Has Hits, Misses in Implementing Management Agenda,”
GovExec.com, May 9, 2004, available at [http://www.govexec.com/dailyfed/0503/
to increase transparency, OMB also released detailed worksheets showing the
evidence OMB used to complete assessments of agency programs.74
The stoplight scoring criteria may make subjectivity difficult to avoid for some
of the initiatives. For example, the current standards for success state that to achieve
green on status for the Expanded Electronic Government initiative, an agency must
have “acceptable” information technology business cases.75 Similarly, for the
Strategic Management of Human Capital initiative, an agency must have succession
strategies that “result in a leadership talent pool.” Furthermore, independent
evaluation organizations (e.g., GAO or agency IGs) have not conducted verification
and validation assessments of the overall agency stoplight scores.76
Finally, the scope of the PMA does not necessarily cover all aspects of general
management laws that outside observers might consider important.77 For example,
the PMA’s acquisition-related initiative, Competitive Sourcing, does not include
either contract oversight or small business contracting concerns among its criteria,
when GAO and outside observers have expressed long-standing concerns over these
74 OMB made the detailed worksheets available to the public at
[http://www.whitehouse.gov/omb/budget/fy2004/pma.html], visited Jan. 22, 2004. The
overall program assessments were published in the President’s budget proposal (U.S.
Executive Office of the President, Budget of the United States Government, Fiscal Year
2004, Performance and Management Assessments, pp. 9-298). A year later, GAO issued
a report on the PART, U.S. General Accounting Office, Performance Budgeting:
Observations on the Use of OMB’s Program Assessment Rating Tool for the Fiscal Year
2004 Budget, GAO-04-174, Jan. 2004. PART worksheets for the President’s FY2005
budget proposal can be found at [http://www.whitehouse.gov/omb/budget/fy2005/part.html],
visited Feb. 4, 2004.
75 The OMB evaluation criteria for capital assets may leave some room for subjectivity. See
U.S. Office of Management and Budget, Circular No. A-11, Part 7, “Planning, Budgeting,
Acquisition, and Management of Capital Assets,” July 2003, Section 300.10.
76 GAO, however, has evaluated some aspects of PMA implementation. For example, GAO
took note of incomplete business case information for OMB’s 24 e-government initiatives,
concluding that there would be insufficient information to monitor the status of the
initiatives (see U.S. General Accounting Office, Electronic Government: Selection and
Implementation of the Office of Management and Budget’s 24 Initiatives, GAO-03-229,
Nov. 2002). OMB may or may not have considered this situation when assigning agency
stoplight scores under the PMA. GAO also testified to Congress on the overall PMA (see
U.S. General Accounting Office, Management Reform: Continuing Progress in
Implementing Initiatives in the President’s Management Agenda, GAO-03-556T, Mar. 26,
2003). Furthermore, agency IGs have been involved in doing independent audit and
investigations work that OMB considers in discrete aspects of the overall PMA quarterly
assessments. For example, IGs have a formal role in assessing agency information security
remediation, evaluating agency financial management practices, and sometimes conducting
program evaluations upon which OMB relies for input in PART assessments.
77 When the original PMA was released in August 2001, President Bush stated that the
initiatives were chosen “to address the most apparent deficiencies where the opportunity to
improve is the greatest.” See OMB, The President’s Management Agenda, p. 1.
management issues.78 Real property management issues are also not explicitly
addressed by the PMA.79
The PMA is not the first time that the executive branch, nongovernmental
organizations,80 or Congress have endeavored to influence agencies to improve their
management practices by measuring compliance with general management laws. For
decades, agency IGs and GAO have focused in detail on specific problems within
agencies. As described earlier, OMB and GAO also created “high risk” programs to
focus on particularly troublesome management areas. Moreover, some (especially
in Congress) have undertaken measurement efforts to make assessments about
specific general management laws and functional areas that are comparable across
agencies. For example, for several years, Representative Stephen Horn issued letter
grades to evaluate agency financial management and information security
performance. Representative Adam Putnam has continued that practice for
information security in evaluating agency compliance with the Federal Information
Security Management Act of 2002.81 Senator Fred Thompson similarly issued grades
for agency annual performance reports required by the Government Performance and
Management Policy Options. In light of this overview, one could again ask
the questions that began this section. What options are available to Congress to
ensure that executive branch agencies improve their management practices by
complying with the general management laws? Furthermore, if it is possible to
measure agency progress (through cross-agency comparisons that are easily
understood and that motivate action by political appointees and senior career
78 GAO included contract management on its January 2003 “High-Risk List” for the
National Aeronautics and Space Administration (NASA) and the Departments of Defense
and Energy. See U.S. General Accounting Office, High-Risk Series: An Update. For more
on small business contracting, see Jason Peckenpaugh, “OMB, Under Fire, Says Changes
in Contract Bundling on the Way,” GovExec.com, Oct. 17, 2002, available at
[http://www.govexec.com/dailyfed/1002/101702p1.htm], visited Jan. 22, 2004. A hard copy
is available from the author’s files.
79 For background, see CRS Report RL32368, The General Services Administration and
Federal Real Property Management: Overview and Current Legislation, by Stephanie
Smith, and U.S. General Accounting Office, High-Risk Series: Federal Real Property,
GAO-03-122, Jan. 2003.
80 For evaluations from the Federal Performance Project, see Gregory F. Treverton, “The
State of Federal Management,” pp. 23-34. The Mercatus Center at George Mason
University has issued evaluations and rankings for agency annual performance reports since
FY1999; see [http://www.mercatus.org], visited Jan. 22, 2004.
81 See [http://reform.house.gov/TIPRC/Hearings/EventSingle.aspx?EventID=652], visited
Jan. 23, 2004, for more information on the most recent information security report card.
82 See [http://www.senate.gov/~gov_affairs/103100_press.htm], visited Jan. 23, 2004. Some
assert that cross-agency comparisons are strong motivators for action. Management writers
Tom Peters and Robert Waterman cited Mason Haire’s quotation that “what gets measured
gets done” and provided examples of how comparative performance information can
sometimes galvanize attention and efforts for improvement. See Thomas J. Peters and
Robert H. Waterman Jr., In Search of Excellence, p. 268.
officials), how could Congress measure or monitor the extent to which agencies
improve their management practices? Some options include:
!Maintain current efforts: Congress could continue to use existing
oversight tools and institutions, including GAO and agency IGs, to
monitor progress selectively in the executive branch’s efforts to
improve agency management practices, while preserving executive
branch discretion in the scope and intensity of these efforts. This
option would arguably involve little additional cost and would not
constrain the activities of the executive branch more than currently.
Critics argue, however, that Congress does not use these tools
effectively or frequently enough.
!Independent verification and validation: Congress could ask (or
direct) GAO and agency IGs to more systematically verify and
validate PMA stoplight scores and the corresponding agency actions-
taken, either government-wide or in selected agencies. This option
could increase congressional confidence in executive branch
measurements and determinations, but would likely involve costs,
and could be perceived negatively by the executive branch as
micromanagement or redundant with current activities.
!Transparency: Congress could secure from OMB or the agencies
access to final PMA stoplight worksheets, similar to what OMB
currently provides for the PART. This option could further open
executive branch management problems to public discussion, but the
executive branch might argue that such a requirement would
increase costs and managerial workloads.
!Independent measurement: Congress could direct GAO or IGs to
develop measures, and systematically measure agency progress in
improving management practices in a way that could be compared
easily across agencies — along functional lines or for specific
general management laws.83 This option could make management
improvement measurement more systematic so that it would survive
the transition from one presidential Administration to another, but
could increase workload and costs for GAO, IGs, and agencies.
83 An observer recently called into question GAO’s current method for assessing agency and
GAO performance, with regard to these types of outcomes. He called GAO “best of the
best” in government, but questioned whether GAO’s current performance measurement
system is adequate for gauging whether management practices in the federal government are
getting better or worse: “[M]oney recovery is ‘a significant achievement but what does it
tell us? ... Is the problem of bad behavior by government organizations getting worse?
GAO’s reporting falls short of giving us a picture of improvement or deterioration in
management practices in government organizations.’ “ Quoted in Michael Posner, “GAO
Chief Worried About Growing Investigations Workload,” GovExec.com, Sept. 16, 2003,
available at [http://www.govexec.com/dailyfed/0903/091603cd2.htm], visited Jan. 22, 2004.
A hard copy is available from the author’s files.
!Measurement through GPRA: Congress could amend GPRA to
require agencies formally and explicitly to address major
management problems and high-risk areas in their strategic plans,
annual performance plans, and annual performance reports. This
might be done, for example, by requiring the establishment of
milestones and timelines for improvement, both in addressing the
problems and in building agency management capacity (e.g.,
identifying whether, where, and to what extent management capacity84
needs to be improved for an agency to make adequate progress).
Congress could also require the President to address these issues in
the government-wide performance plan required by 31 U.S.C. §
1105(a)(28). Depending on congressional preference, this option
could make management improvement measurement statutory or
more systematic, or both, but could increase workload for agency
and OMB personnel.
Agency “Chief Officers” and Interagency Councils
A fifth and final major theme that runs through the compendium of general
management laws is the expanding set of (a) agency “chief officer” positions (and
their equivalents) and (b) interagency councils of these officers.
Chief Officers. Chief officers, who are sometimes also called “CXOs,”
include a variety of statutory, senior positions in executive branch agencies that
usually head a function (human resources, financial management, procurement, etc.)
within each agency. These chief officers now include, in chronological order of
establishment by statute:85
!inspectors general (established 1978);
!chief financial officers (established 1990);
!chief information officers (CIOs; established 1996);
84 In the 105th Congress, the House passed legislation (H.R. 2883) that would have, among
other things, required an agency to describe major management problems affecting the
agency and the “specific goals, strategies, and performance measures to resolve those
problems.” However, no further action occurred on the bill, beyond referral to the Senate
Committee on Governmental Affairs. GPRA allows, but does not necessarily require,
agencies to establish management-related “general goals” and “performance goals.” By
contrast, OMB’s FY2005 guidance for complying with GPRA (OMB Circular No. A-11,
available at [http://www.whitehouse.gov/omb/circulars/index.html], visited Jan. 22, 2004)
states that agencies may establish management-related general goals, but could also be
interpreted as saying that agencies should treat management-related goals and indicators as
“means and strategies” rather than performance goals or indicators. Per the circular (Section
51-6 through 51-7), “means” should be described “briefly” and “strategies” should be
“highlighted,” which could result in meager attention by agencies in these documents.
85 Inspector general positions were established at the Department of Health, Education, and
Welfare (now Health and Human Services) by P.L. 94-505 (1976), and at the Department
of Energy by P.L. 95-91 (1977), before passage of the Inspector General Act of 1978. A
chief financial officer position was established at the Department of Veterans Affairs by
P.L. 100-527 (1988) before passage of the Chief Financial Officers Act of 1990.
!chief human capital officers (CHCOs; established 2002); and
!chief acquisition officers (CAOs; established 2003).
On the next page, Table 1 summarizes key categories of information about each of
these officers, including (1) the function(s) with which the officer position is
typically associated, (2) the law that established the officer position,86 (3) a United
States Code citation for key statutory provisions, (4) a summary of the statutory rules
governing appointments for the position, and (5) the person to whom the chief officer
As the table shows, some of these officers are presidentially appointed with
Senate confirmation (PAS); some are presidentially appointed, and others may be
appointed or designated by an agency head. Many positions can be filled with
political or career employees, but CAOs and certain CFOs are required to be political
(non-career). With regard to reporting relationships, three chief officers are required
to report directly to the agency head (IGs, CFOs, and CIOs), but reporting
relationships for the other two officers (CHCOs and CAOs) are left to an agency
86 An entry in the compendium discusses each of the listed laws. However, for discussion
of the Chief Human Capital Officers Act of 2002, see the compendium’s entry for Title 5,
United States Code, Chapter 14, in the compendium’s “Human Resources Management and
Table 1. Agency “Chief Officers”
PositionFunction(s)Enacting Law(s)U.S. CodeLocation(s)AppointmentReportingRelationship
spectoraAudits;Inspector General Act of 1978 (925 U.S.C.President shall appoint in “establishments”Direct report to agen-
neral (IG)investigationsStat. 1101; P.L. 95-452); InspectorApp. 3with Senate confirmation (PAS) withoutcy head (or next in
General Act Amendments of 1988regard to political affiliation; head ofrank), who transmits
(102 Stat. 2515; P.L. 100-504)“designated federal entity” shall appoint inIG report, unaltered
accordance with IG Actbut with comments,
efFinancialChief Financial Officers Act of 199031 U.S.C.President shall appoint with Senate confirma-Direct report to
management;(104 Stat. 2838, at 2842; P.L. 101-§§ 901-902tion (PAS); or President shall designate inagency head; career
accounting; 576)consultation with agency head; or head ofdeputy CFO reports
iki/CRS-RL32388FO)bbudgetingagency shall appoint (career competitiveto CFO
g/wservice or senior executive service employee)
leakefInformation Clinger-Cohen Act of 1996 (11044 U.S.C.Head of agency shall designate (career orDirect report to
formationcresourcesStat. 679, at 684; Division E of§ 3506; non-career employee)agency head
://wikiIO)management;National Defense Authorization Act40 U.S.C.
httptechnologyfor FY1996, P.L. 104-106)§ 11315
ef HumanHumanChief Human Capital Officers Act5 U.S.C.Head of agency shall appoint or designateAt discretion of
pitalresources andof 2002 (116 Stat. 2287; Title XIII§§ 1401-(career or non-career employee)agency head
personnelof Homeland Security Act of 2002,1402
efAcquisitionServices Acquisition Reform Act of41 U.S.C.Head of agency shall appoint or designateAt discretion of
quisitionmanagement2003 (117 Stat. 1663, at 1666; Title§ 414(non-career employee); 41 U.S.C. § 414(c)agency head
XIV of the National Defense Auth.also requires a “senior procurement
AO)Act for FY2004, P.L. 108-136)executive” to be designated
ee also CRS Report 98-379 GOV, Statutory Offices of Inspector General: Establishment and Evolution, by Frederick M. Kaiser.
ee also CRS Report RL31965, Financial Management in the Federal Government: Efforts to Improve Performance, by Virginia A. McMurtry. The CFO Act also calls
or the appointment of deputy CFOs, which are to be career reserved senior executive service (SES) positions.
ee also CRS Report RL30661, Government Information Technology Management: Past and Future Issues (The Clinger-Cohen Act), by Jeffrey W. Seifert.
A detailed history behind the creation of each of these chief officer positions is
not within the scope of this report.87 However, a common theme behind the creation
of the positions was many observers’ belief that senior managers within executive
branch agencies paid insufficient attention to functional perspectives (e.g., financial
management) in managing their agencies. Therefore, many observers believed that
each functional perspective needed to be “elevated” to a higher, more salient position
within agencies’ management ranks, as a means to ensure that long-standing
problems would be addressed.88
Interagency Councils. In turn, each group of chief officers was placed into
an interagency council by statute or executive order. Table 2, on the next page,
summarizes key information about each of these councils, including (1) the statutory
membership of the council, (2) the chair of the council, (3) a United States Code or
Code of Federal Regulations citation for key statutory provisions or the executive
order, (4) the law or executive order that established the council, and (5) notes and
the council’s website location, if available.89 As the table shows, four of the councils
were established by law, but two (the IG councils) exist through executive order.
Memberships of the councils vary considerably, but the Office of Management and
Budget’s deputy director for management is the chair or vice chair for each, thus
enabling the Executive Office of the President to direct, or at least influence, each
87 For the history behind each of these positions, see the compendium’s entries for each
position’s enacting law and the CRS reports listed at the bottom of the table.
88 For example, see the General Accounting Office’s 1988 analysis recommending the
establishment of agency chief financial management officers: U.S. General Accounting
Office, Transition Series: Financial Management Issues, GAO/OCG-89-7TR, Nov. 1988,
pp. 22-23. With regard to establishment of chief acquisition officers, see Jason
Peckenpaugh, “Chief Acquisition Officer Proposal Wins Endorsement,” GovExec.com, June
3, 2004 (a hard copy is available from the author’s files). Moreover, a similar proliferation
of “chief officer” titles had been occurring in the private sector for some time. See, for
example, testimony supporting the establishment of CHCO positions that cited the existence
of these positions in many large corporations: U.S. Congress, Senate Committee on
Governmental Affairs, Subcommittee on International Security, Proliferation and Federalth
Services, The Federal Workforce: Legislative Proposals for Change, hearings, 107 Cong.,nd
89 For a broader survey on federal interagency councils and coordination efforts, see CRS
Report RL31357, Federal Interagency Coordinative Mechanisms: Varied Types and
Numerous Devices, by Frederick M. Kaiser. Another management-oriented council, the
President’s Management Council (PMC), is described in CRS Report RS21001, President’s
Management Council: Memorandum of Establishment, by Ronald C. Moe.
Table 2. Interagency Councils
Council Name(s)MembershipChairU.S. Codeor C.F.R.Statutory or OtherAuthority Notes/Website
Inspectors general (IGs) — OMB deputy3 C.F.R.,Executive OrderThe PCIE was initially
tegrity and Effciencypresidentially appointed IGs (PCIE)director for199212805 (Presidentestablished by E.O. 12301
CIE); Executiveand other IGs (ECIE); others includingmanagementComp., pp.George H.W. Bush),(Reagan), March 26, 1981
ntegrityaDirector of Office of Government(DDM), chairperson299-302May 11, 1992[http://www.ignet.gov]
(ECIE)Ethics, Special Counsel, etc.of PCIE and ECIE
Agency statutory CFOs appointedOMB DDM,31 U.S.C.Chief FinancialDeputy CFOs are included
under 31 U.S.C. § 901; Fiscal Assistantchairperson§ 901 noteOfficers Act of 1990as council members by the
bSecretary of the Treasury; controller of(104 Stat. 2838, atCFO Council charter
OMB Office of Federal Financial2848; P.L. 101-576)[http://www.cfoc.gov]
s.orief InformationCIOs from agencies at 31 U.S.C. §OMB DDM, chair-44 U.S.C. E-Government ActThe CIO Council was
leakO901(b); administrator of OMB’s Officeperson (per statute,§ 3603of 2002 (116 Stat.initially established by E.O.
cof Electronic Government; admin-administrator of2899, at 2905; P.L.13011 (Clinton), July 16,
://wikiistrator of OMB’s Office of Informa-OMB’s Office of E-107-347)1996
httption and Regulatory Affairs (OIRA);Government leads[http://www.cio.gov]
CIOs from military services, otherson DDM’s behalf)
ief Human CapitalCHCOs of “Executive departments”Director of OPM;5 U.S.C. Chief Human CapitalNo website; see
HCO)and others designated by Director ofOMB DDM is vice§ 1401Officers Act of 2002[http://www.opm.gov/hrmc]
Office of Personnel Managementchairpersonnote(116 Stat. 2287, atfor OPM memoranda to
(OPM)2288; P.L. 107-296)agency CHCOs
ief AcquisitionAdministrator for Federal ProcurementOMB DDM,41 U.S.C. Services AcquisitionNo website; see
Policy; agency CAOs; other officialschairman§ 414bReform Act of 2003[http://www.fac.gov] for
AO)(117 Stat. 1663, atFederal Acquisition Council
1668; P.L. 108-136)website
ee also CRS Report 98-379 GOV, Statutory Offices of Inspector General: Establishment and Evolution, by Frederick M. Kaiser.
ee also CRS Report RL31965, Financial Management in the Federal Government: Efforts to Improve Performance, by Virginia A. McMurtry.
ee also CRS Report RL30661, Government Information Technology Management: Past and Future Issues (The Clinger-Cohen Act), by Jeffrey W. Seifert.
President Ronald Reagan established the first of these councils, the President’s
Council on Integrity and Efficiency (PCIE), with a membership of agency IGs
through executive order in 1981.90 The executive order required the PCIE to develop
“plans for coordinated government-wide activities which attack fraud and waste in
government programs and operations.” According to one observer, “the PCIE would
quickly become a continuing source of leverage as the IGs fought for resources
within their agencies” and sought to become more independent. Furthermore, the
PCIE “was roundly endorsed as a tool for both enhancing the lobbying power of the
IGs and building the informal networks that support organizational learning.”91 The
PCIE established standing committees in areas where IGs found benefits from
sharing ideas or cooperating on projects. According to an IG who was asked what
he thought about the PCIE in a hearing before the House Committee on Government
Operations in 1988:
I think [the PCIE has] been an extraordinarily positive innovation.... [I]t has
permitted us to work together, and to come together. We develop our own work
plan.... It has provided a mechanism I think is unique in Government.... We’re
all very close colleagues and friends because of the fact that we can work
together; we have a mechanism to go across the Government on fraud, waste, and
abuse issues. I can’t overstate the value of that particular vehicle of the92
However, the PCIE was also criticized in the late 1980s as “‘a trade union ... for the93
IGs, ... an opportunity to get together and figure out ways to grow.’” In 1992,
President George H. W. Bush issued a new executive order establishing two IG
councils, the PCIE for presidentially appointed IGs and an Executive Council on
Integrity and Efficiency (ECIE) for IGs typically appointed by agency heads.94
The Chief Financial Officers (CFO) Council, the second council to be created,
was established by the Chief Financial Officers Act of 1990. The CFO Act also
established the deputy director for management (DDM) position in the President’s
Office of Management and Budget. The CFO Act gave the DDM chairperson status
over the CFO Council, and, moreover, charged the DDM with overall responsibility
for establishing “general management policies” in the executive branch for the
“functions” listed at 31 U.S.C. § 503(a) and (b), which include financial
management, procurement policy, information and statistical policy, property
90 Executive Order 12301, “Integrity and Efficiency in Federal Programs,” Mar. 26, 1981
(3 C.F.R., 1981 Comp., pp. 144-146). This executive order was later replaced with E.O.
91 Paul C. Light, Monitoring Government, pp. 104, 187.
92 Testimony of Richard P. Kusserow, in U.S. Congress, House Committee on Government
Operations, The Inspectors General: A 10-Year Review, hearing, 100th Cong., 2nd sess., Aug.
93 Quoted in Light, Monitoring Government, p. 188.
94 Executive Order 12805, “Integrity and Efficiency in Federal Programs,” 3 C.F.R., 1992
Comp., pp. 299-302.
management, human resources management, and program evaluation, among other
According to one commentator, the CFO Council was initially “passive.”
However, in 1994, council members recommended several actions to energize the
council: broaden membership to include career deputy CFO positions that were also
established by the CFO Act, elect several council officers, and set the agenda
themselves rather than receive it from OMB.96 OMB supported the recommendations.
Similar to the PCIE, the CFO Council also formed a variety of committees for areas
of special emphasis.97 Finally, the commentator concluded:
[OMB’s deputy director for management] has only modest resources at his
disposal, but he has tremendous leveraging opportunities through the many
interagency councils he chairs. That approach is clearly working with the CFO98
Council, which can serve as a model for other interagency efforts.
After the CFO Council was established and running, Congress established three
additional chief officer councils: the CIO Council in 2002, the CHCO Council in99
Advantages and Disadvantages. The establishment of IGs, CFOs, and
CIOs has met with little criticism. On the contrary, long-time observers generally
concur that these three chief officer positions (the ones with longest track records)
are important and have been successful to greater or lesser extents in bringing focus
to their functional perspectives.100 Nonetheless, as the entries in the compendium
mention, observers have identified some difficult challenges that face these officers
in their efforts to improve agency management practices, including high turnover
among CIOs, potential difficulties with change management as agency financial
reporting requirements continue to accelerate, and performance measurement. More
broadly, some commentators have argued that, even after these positions were
created, agencies continued to suffer from persistent management difficulties when
budget pressures and lack of attention from political appointees, who typically serve
95 The OMB DDM was made chairperson over the PCIE and ECIE by E.O. 12805 in 1992.
96 Michael D. Serlin, “Born-Again Financial Management,” Government Executive, May
1996, pp. 63-64. A dated history and guide to the council’s activities are available at
[http://www.cfoc.gov], visited Jan. 22, 2004.
97 OMB also established a Budget Officers Advisory Council (BOAC) to foster
communication between OMB and agency budget offices. See the Council’s Web page on
the CFO Council’s website at [http://cfoc.gov/groups/boac/bagendas.cfm], visited Jan. 22,
98 Serlin, “Born-Again Financial Management,” p. 64.
99 The CIO Council was originally established by President William Clinton via Executive
Order 13011, “Federal Information Technology,” 3 C.F.R., 1996 Comp., pp. 202-209. The
CAO Council may replace the Federal Acquisition Council, an interagency council of
procurement officials established under 41 U.S.C. 405(e)(3).
100 CHCOs and CAOs are still new to the federal government.
for short times, diminished agencies’ management and analytical capabilities.101
Further, many management scholars remain wary of functional silos that sometimes
see the world from a narrow, functional perspective at the expense of a more
integrated general management perspective.
With regard to interagency councils of chief officers, observers have noted
periods of more and less effectiveness, as discussed above. However, observers
generally agree that interagency councils have been beneficial. Public management
scholars, in recent years, have paid increasing attention to the potential benefits of
interagency collaboration.102 As noted in the compendium’s entry for Chapter 14 of
Title 5, United States Code, Congress received testimony from a former OMB
official that councils can play an important role in improving federal management:
I think the [Chief Human Capital Officers] Council is important because more
and more academic research on how organizations work well suggests that
setting up networks of people to share knowledge, share best practices, share
information, share approaches, is a very important thing in getting organizations
to perform well. So I think having a situation where the different human capital
officers in the different parts of the Federal Government meet regularly, get to103
know each other, talk to each other, can be very valuable.
Within the management literature and in many companies and government agencies,
considerable attention has been devoted to this “knowledge management”104
perspective. However, management theorists are ever-wary of the possible allure
of seeing agencies’ problems primarily from the perspective of only one function,
which they argue should be avoided if that functional perspective becomes too
narrow and runs the risk of doing violence to other functions or the agency overall.
In addition, some scholars and practitioners have emphasized instead that the
problem of improving federal executive branch management requires a re-thinking105
of the structure and role of OMB, within the Executive Office of the President.
101 For more information on political appointee turnover, see U.S. General Accounting
Office, Political Appointees: Turnover Rates in Executive Schedule Positions Requiring
Senate Confirmation, GAO/GGD-94-115FS, Apr. 1994. For more on potential effects of
budget pressures on agency management and analytical capacities, see U.S. General
Accounting Office, Major Performance and Accountability Challenges: Department of
Defense, GAO-03-098, Jan. 2003, p. 28; U.S. General Accounting Office, Transition Series:
Program Evaluation Issues, GAO/OCG-93-6TR, Dec. 1992; and Walter Williams,
Mismanaging America: The Rise of the Anti-Analytic Presidency (Lawrence, KS: University
Press of Kansas, 1990).
102 See, for example, Eugene Bardach, Getting Agencies to Work Together: The Practice and
Theory of Managerial Craftsmanship (Washington: Brookings Institution, 1998).
103 Testimony of Steven J. Kelman, in U.S. Congress, Senate Committee on Governmental
Affairs, Subcommittee on International Security, Proliferation and Federal Services, The
Federal Workforce: Legislative Proposals for Change, p. 57.
104 For a brief overview of knowledge management from the private sector perspective, see
David A. Garvin, General Management: Processes and Action (New York: McGraw-Hill,
105 For example, see Ronald C. Moe, “The Need for an Office of Federal Management: Now
Management Policy Options. Congress might consider further questions
with regard to chief officers and interagency councils. For example, should executive106
branch agencies have additional chief officers, or their equivalents? Are there too
many chief officers already? Should anything be done to preserve institutional
memory and continuity for chief officer positions occupied by political appointees,
whose tenures are short? Should all the councils be statutory? How should the
councils be funded? Should the councils be made more accountable to Congress
through direct appropriations and periodic reporting? These options are briefly
!“Chief security officers”: GAO has found that agencies may not
have adequate plans for ensuring that government services are
available in emergencies.107 In the wake of the war against terrorism
and increasing consciousness of physical and information security
risks for federal agencies, should Congress establish agency “chief
security officers” (CSOs)? According to a 2002 news report, over
half of 72 surveyed corporate chief executive officers had designated
More Than Ever,” paper presented at the National Academy of Public Administration and
Johns Hopkins University “Executive Organization and Management After September 11”
Conference, Washington, DC, Oct. 2003 [available from the author’s files]; U.S. Congress,
House Committee on Government Reform, Subcommittee on Government Management,
Information, and Technology, The Office of Management and Budget: Is OMB Fulfilling itsthnd
Mission?, hearing, 106 Cong., 2 sess., Apr. 7, 2000 (Washington: GPO, 2001); ibid., Toth
Establish an Office of Management in the Executive Office of the President, hearing, 106st
Cong., 1 sess., Feb. 4, 1999 (Washington: GPO, 2000); and Paul C. Light, The Tides of
Reform, pp. 224-228. For an overview of OMB, see CRS Report RS21665, Office of
Management and Budget: A Brief Overview, by Clinton T. Brass.
106 In addition to the options outlined in this report, other senior officer positions and
interagency councils have been established and proposed. On Feb. 6, 2004, President
George W. Bush issued Executive Order 13327, which requires CFO Act agencies and the
Department of Homeland Security to establish “senior real property officers” — similar toth
the positions proposed for establishment by legislation in the 108 Congress (H.R. 2548)
— and establishes an interagency Federal Real Property Council within OMB (E.O. 13327,
“Federal Real Property Asset Management,” 69 Federal Register 5897, Feb. 6, 2004).
Furthermore, recently, GAO convened a roundtable to discuss the merits of agency “chief
operating officers” (COOs): see U.S. General Accounting Office, Comptroller General’s
Forum: High-Performing Organizations: Metrics, Means, and Mechanisms for Achievingst
High Performance in the 21 Century Public Management Environment, GAO-04-343SP,
Feb. 13, 2004; and U.S. General Accounting Office, Highlights of a GAO Roundtable: The
Chief Operating Officer Concept: A Potential Strategy to Address Federal Governance
Challenges, GAO-03-192SP, Oct. 4, 2002.
107 GAO cites terrorist attacks, severe weather, and building-level emergencies as examples
of such emergencies. See U.S. General Accounting Office, Continuity of Operations:
Improved Planning Needed to Ensure Delivery of Essential Government Services, GAO-04-
160, Feb. 2004. For more information on executive branch continuity of operations and
security management, see CRS Report RL31857, Continuity of Operations (COOP) in the
Executive Branch: Background and Issues for Congress, by R. Eric Petersen, and CRS
Report RL31739, Federal Agency Emergency Preparedness and Dismissal of Employees,
by L. Elaine Halchin.
CSOs.108 According to the website for CSO Magazine, many CSOs
deal solely with information technology and report to the company
CIO. However, CSO Magazine’s website also asserts that, “[i]n a
growing number of large enterprises, the CSO handles not only IT
but all security responsibilities, such as access to buildings and
grounds.”109 While establishing statutory CSO positions could
encourage battles for turf between CIOs and CSOs with regard to
information security, creating these positions might bring a more
integrated approach to security and risk management at federal
agencies. Many federal agencies, however, may already have
established systems and processes to address these issues. In
addition, in view of the increasing number of chief officers, some
observers might argue that requiring an additional type of chief
officer for agencies would be excessive.
!“Chief program evaluation officers”: Many observers have
asserted that agencies frequently do not adequately evaluate the
performance or results of their programs — or integrate evaluation
efforts across agency boundaries — possibly due to lack of capacity,
management attention and commitment, or resources.110 Congress
could establish “chief program evaluation officer” (CPEO) positions
in major agencies to bring more attention to this function if it
deemed these to be serious problems. Because programs can differ
considerably and the field of program evaluation is highly
interdisciplinary, evaluation methods differ from program to
program.111 Proponents might argue that establishing these chief
officer positions could create a “seat at the table” for program
evaluation in agency senior management teams, helping agency
efforts to improve performance or coordinate programs with
overlapping missions. However, critics might argue that
establishing another type of chief officer would be excessive.
108 See Cynthia Flash, “Rise of the Chief Security Officer,” InternetNews.com, available at
[http://www.internetnews.com/ent-news/article.php/7_997111], visited Jan. 22, 2004. A
hard copy is available from the author’s files.
109 See [http://www.csoonline.com/research/executive/cso_role.html], visited Jan. 22, 2004,
at CSOonline.com’s website. A hard copy is available from the author’s files.
110 For example, see the General Accounting Office testimony in U.S. Congress, House
Committee on Government Reform, Subcommittee on Government Efficiency and Financialthst
Management, Performance, Results, and Budget Decisions, hearing, 108 Cong., 1 sess.,
Apr. 1, 2003, pp. 30-31. For historical context, see U.S. General Accounting Office,
Transition Series: Program Evaluation Issues, and Walter Williams, Mismanaging America.
111 The Government Performance and Results Act defines program evaluation as “an
assessment, through objective measurement and systematic analysis, of the manner and
extent to which Federal programs achieve intended results” (107 Stat. 288). More
information about the program evaluation field can be found at the website of the American
Evaluation Association, available at [http://www.eval.org], visited Jan. 22, 2004.
!Chief officer appointments: If Congress decided to alter existing
chief officer positions or establish new ones, it would have a number
of options regarding appointments. Table 1 shows how the existing
chief officers are allowed (or required) to be appointed positions
under current law. Some positions are required to be political;
others are required to be career, and some are left to an agency
head’s discretion. In recent years, there has been discussion of these
differences. In congressional testimony regarding the proposed
CHCO positions, witnesses came down on both sides of the
question.112 Political appointees can get a “seat at the table” with the
agency’s leadership to ensure that a given functional perspective is
considered. However, career officials can provide continuity and
institutional memory from one presidential administration to
another, while by contrast, political appointees turn over frequently.
Similar arguments were voiced with regard to CAOs.113 In enacting
the CFO Act, Congress reflected both of these perspectives; the
CFOs were political, while the deputies were career.
!Chief officer reporting relationships: As illustrated by Table 1,
CFO and CIOs, by law, must report directly to the agency head,
while IGs must report to the agency head or to the official “next in
rank.” However, the reporting relationships of CHCOs and CAOs
are left to each agency head’s discretion. Are these reporting
relationships still appropriate, in view of agency management needs
and progress (or lack thereof) in addressing major management
problems? One argument made for a direct reporting relationship to
the agency head is to ensure that the chief officer (who brings his or
her functional perspective) gets personal access to the agency’s
senior leadership. However, agency heads frequently have a large
number of people reporting directly to them (i.e., “direct reports”).
An additional direct report could cause too large a span of control
for the heads of some executive branch agencies.
!The IG councils: With regard to interagency councils, a potentially
important option for Congress to consider is whether to make the IG
councils statutory by codifying the mandates of the PCIE and ECIE
into law, versus the status quo of allowing the two councils to
continue as organizations established by executive order. As
summarized in testimony before the Committee on Government
Reform’s Subcommittee on Government Efficiency and Financial
Management, the vice chair of the PCIE stated his belief that
codification would require “modest appropriations,” but would
facilitate better training, strengthen the relationship between IGs and
Congress, and improve coordination between IG offices in the
112 U.S. Congress, Senate Committee on Governmental Affairs, Subcommittee on
International Security, Proliferation and Federal Services, The Federal Workforce:
Legislative Proposals for Change, pp. 55-58.
113 See Jason Peckenpaugh, “Chief Acquisition Officer Proposal Wins Endorsement.”
federal government.114 Others might argue, however, that this
change would reduce flexibility or control by the President. More
on this subject is discussed in the compendium’s profile of the
Inspector General Act of 1978.
!Funding for interagency councils: Congress has several
alternatives for providing funding for the different interagency
councils. The IG councils (the PCIE and ECIE) self-finance their
common activities via memorandum of understanding (MOU)
instead of by appropriations or interagency transfers.115 For
example, the IG offices sign an MOU under which one IG office
(e.g., the office for the Department of Health and Human Services)
pays for the councils’ website from that office’s regular
appropriation, while another two IG offices pay for the publication
of the councils’ annual report to the President. By contrast,
operations for the CHCO Council are funded out of the budget of the
Office of Personnel Management. The other three councils (CFO,
CIO, and Procurement Executives Council, which may become the
newly codified CAO) have been funded in recent years through
interagency transfer or reimbursement under Title VI general
provisions in the Transportation-Treasury appropriations bill (e.g.,
$17 million for FY2004; see P.L. 108-199, Division F, Title VI,
Section 627; 118 Stat. 356). These transfers are under the control of
OMB, but are administered after transfer by the General Services
Administration. Congress could maintain the status quo for these
councils. It also might consider making a separate appropriation for
each council singly, or all combined. This option could take away
some discretion from the President. On the other hand, it could also
give Congress additional control and leverage over the activities of
these councils, and potentially improve institutional memory and116
continuity from one presidential administration to the next.
!Council reporting and strategic planning: Congress could
consider altering the reporting and strategic planning requirements
for the interagency councils. Currently, some councils have no
114 Testimony of Gaston L. Gianni Jr., U.S. Congress, House Committee on Government
Reform, Subcommittee on Government Efficiency and Financial Management, 25thth
Anniversary of the Inspector General Act — Where Do We Go From Here?, hearing, 108nd
Cong., 2 sess. Oct. 8, 2003. For witnesses’ prepared testimony, see
[http://reform.house.gov/GEFM/Hearings/EventSingle.aspx?EventID=457], visited Jan. 22,
115 OMB is also required “as may be necessary” to provide administrative support for the
PCIE and ECIE. See Executive Order 12805, Section 5(a).
116 For press coverage of a discussion about additional advantages and disadvantages of
Congress’s directly funding the interagency councils, see Kellie Lunney, “Feds Call on Bush
to Support Interagency Councils,” GovExec.com, Jan. 29, 2001, available at
[http://www.govexec.com/dailyfed/0101/012901m1.htm], visited Feb. 2, 2004. A hard copy
is available from the author’s files.
reporting or strategic planning requirements. Others require only a
report to the President or to Congress, but no articulation of strategic
plans. For example, the executive order governing the IG councils
requires that the PCIE and ECIE report on their activities only to the
President.117 The CFO, CIO, and CAO Councils currently do not
have statutory requirements in their author izing legislation to report
to Congress or to prepare strategic plans.118 They could be required
to submit plans or reports to the President or to Congress.119
Congress could also consider requiring OMB to submit an overall
plan for how it will lead the interagency chief officer councils, as
part of the government-wide performance plan required by GPRA.
Given the extent to which OMB and the President sometimes use the
interagency councils, planning and reporting requirements might
help increase transparency and make the interagency councils more
accountable to Congress.120 Planning and reporting requirements
might take discretion away from the President, however, and could
increase costs for the councils or OMB.
117 Executive Order 12805, Section 4(c). For the IG councils’ most recent report to the
President, see [http://www.ignet.gov/randp/rpts1.html], visited Jan. 22, 2004. The PCIE and
ECIE also developed a “strategic framework” in May 2001 to guide their activities for the
next three years. See President’s Council on Integrity and Efficiency and Executive Council
on Integrity and Efficiency, A Strategic Framework, May 29, 2001, available at
[http://www.ignet.gov/randp/sf0501.pdf], visited Jan. 22, 2004.
118 The CHCO Council is the only council with a congressional reporting requirement (a
retrospective “annual report”) in its authorizing statute. Under OMB’s direction, the CIO
Council reportedly participates in producing a plan. The Paperwork Reduction Act requires
OMB, in consultation with several other agencies, to develop and maintain a
government-wide strategic information resources management (IRM) plan (44 U.S.C. §
3503(a)(3)). In 2002, GAO reported that, since 1998, OMB’s Office of Information and
Regulatory Affairs (OIRA) responded to the requirement with a plan jointly published with
the CIO Council. However, GAO found that the joint OIRA/CIO Council plan “falls short”
and “is not an effective and comprehensive governmentwide plan.” See U.S. General
Accounting Office, Information Resources Management: Comprehensive Strategic Plan
Needed to Address Mounting Challenges, GAO-02-292, Feb. 2002, p. 9.
119 For example, Congress could consider requiring the councils to submit strategic plans,
annual performance plans, and annual program performance reports under the Government
Performance and Results Act, or enact provisions tailored for specific councils.
120 For example, OMB is using the CIO Council to help accomplish the President’s
Expanded Electronic Government initiative of the PMA, as described in OMB’s April 2003
E-Government Strategy, available at [http://www.cio.gov/documents/2003egov_strat.pdf],
listed on the CIO Council website [http://www.cio.gov] under “Documents,” “OMB
Documents and Guidance,” and “OMB E-Government” menus. All websites visited Feb.
4, 2004. Reporting requirements for the CIO Council might provide additional insight and
an institutional check on executive branch discretion.