The American Presidency and the Power of the Purchaser

Federal procurement is a powerful weapon by which American presidents attempt to expand their power and shape public policy in areas in which Congress has not acted or will not act. In the same way that presidents exercise political control over the bureaucracy and agency regulatory rulemaking, they exert direct control and influence over procurement rulemaking and thereby attempt to shape the behavior of private sector companies. For more than half a century, presidents have exercised this political control over federal procurement and influence on public policy without violating the separation of powers, affirming the unilateral presidential power of the purchaser-in-chief to set terms and conditions beyond a traditional proprietary contractual relationship. Historically, procurement- and acquisition-related executive orders have been based upon the president's broad powers under article II of the Constitution or the powers delegated to the president under the little-known 1949 Federal Property and Administrative Services Act (FPASA). In the latter, Congress delegated statutory authority to the American president to act as the "principal and uniform" purchaser in contracting with any private sector entity that does business with the federal government. The FPASA authorizes the president to adopt policies and directives that provide for an "economic and efficient" procurement system. Presidents thereby gain a range of strategic advantages over Congress, largely as a result of the legislature's collective-action problems, the relative ease with which the president can block attempts to reverse procurement and acquisition orders, and a range of federal judicial decisions affirming congressional delegation of this statutory authority. Through this power of the purchaser over time, presidents attempt to influence public policy and private sector behavior in contested areas such as antidiscrimination and equal employment opportunity; unemployment and inflation; labor-management relations; environmental protection; gun control; international child labor standards; immigration enforcement; economic opportunities for minority- and women-owned businesses, service-disabled veterans, and accountability and transparency in political contributions from federal contractors. To make policy in many of these areas, presidents need not always secure the consent of Congress. Instead, presidents simply amend federal purchasing rules and dare others to oppose the change. In this, the market and political power of the purchaser can be more important--for presidential power, for the administrative presidency, for policy making--than political scientists have recognized. The Administrative Presidency and Political Control of the Bureaucracy The administrative presidency remains the nexus of policy making in the modern era. Any discussion of the administrative presidency focuses on the emergence of national administrative agencies and the formulation of public policy through them. Presidents have sought to exert political control and influence over the administrative state through a variety of means such as expanding the White House staff and centralizing political control over federal regulatory policy. Modern presidents have exerted political control and influence over all federal rulemaking at the start of their administrations by imposing moratoriums on new regulations and postponing the effective dates of existing rules (Copeland 2008). The theme of political control--how politicians control bureaucrats and how bureaucrats control subordinates--permeates the administrative presidency literature. While disagreement remains about who controls the bureaucracy, a scholarly consensus holds that agencies translate the broad mandates of political actors into concrete policy. Scholars focus on how presidents get political control of the institutions that create and implement policy as a means of exercising "residual decision rights. …