By Executive Order

Bureaucratic Management and the Limits of Presidential Power

Andrew Rudalevige

• Publisher: Princeton University Press
• Year: 2021
• ISBN:
  9780691203713
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

How the executive branch—not the president alone—formulates executive orders, and how this process constrains the chief executive's ability to act unilaterally The president of the United States is commonly thought to wield extraordinary personal power through the issuance of executive orders. In fact, the vast majority of such orders are proposed by federal agencies and shaped by negotiations that span the executive branch. By Executive Order provides the first comprehensive look at how presidential directives are written—and by whom.In this eye-opening book, Andrew Rudalevige examines more than five hundred executive orders from the 1930s to today—as well as more than two hundred others negotiated but never issued—shedding vital new light on the multilateral process of drafting supposedly unilateral directives. He draws on a wealth of archival evidence from the Office of Management and Budget and presidential libraries as well as original interviews to show how the crafting of orders requires widespread consultation and compromise with a formidable bureaucracy. Rudalevige explains the key role of management in the presidential skill set, detailing how bureaucratic resistance can stall and even prevent actions the chief executive desires, and how presidents must bargain with the bureaucracy even when they seek to act unilaterally.Challenging popular conceptions about the scope of presidential power, By Executive Order reveals how the executive branch holds the power to both enact and constrain the president's will.

1

“On My Own”?

EXECUTIVE ORDERS AND THE EXECUTIVE BRANCH

THE NEWS BROKE just before five o’clock on Friday afternoon, a week and a few hours after President Donald J. Trump had taken the oath of office. It was January 27, 2017, and the new president had just signed Executive Order (EO) 13769, grandly titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

The order was the intended implementation of Trump’s campaign pledge to enact a “total and complete shutdown of Muslims entering the United States” until vetting procedures had been enhanced. (Or at least, as Trump put it in December 2015, “until our country’s representatives can figure out what the hell is going on.”)¹ Citing the Immigration and Nationality Act and the “authority vested in me as President by the Constitution,” EO 13769 prevented various populations “of particular concern” from entering the United States, effective immediately: anyone arriving from seven nations in the Middle East and North Africa for at least 90 days, and all refugees, regardless of their country of origin, for at least 120 days. Syrian refugees fleeing the civil war there were barred indefinitely. Case-by-case exceptions were allowed for refugees claiming religious-based persecution, giving priority to Christian applicants from Muslim-majority countries, but the maximum number of refugees that could be admitted to the United States in 2017 was more than cut in half. The stated goal was to “protect [American] citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”² The president soon took to Twitter to tout his “Homeland Security travel ban” and told reporters that Americans “want to see people that can love our country come in, not people that are looking to destroy our country.”³

That, of course, was only the start of the story. As word of the EO’s release spread, so did public anger: thousands of protesters flooded more than a dozen airports from Los Angeles to New York, from Portland, Oregon, to Portland, Maine—as well as city squares, university quadrangles, and even the street in front of the Trump International Hotel in Washington, D.C.⁴

There they met “chaos, confusion, and bureaucratic heartburn,” as CBS White House correspondent Major Garrett put it.⁵ White House staff and Department of Homeland Security (DHS) lawyers struggled to come to agreement over what the EO actually meant and thus how it should be implemented.⁶ The directive had gone into effect with hundreds of affected travelers already in the air and thousands of others at departure gates—but federal Customs and Border Patrol personnel were given no notice of its issuance. Nor did they receive advance guidance regarding its demands, which might have clarified, for example, whether the ban affected U.S. permanent residents holding green cards or travelers already issued valid visas. Iraq’s government, working with the United States to battle the Islamic State terrorist group, howled in protest at being included in the measure; by contrast Saudi Arabia, home of most of the 9/11 terrorists cited in the EO as a rationale for its issuance, was not included. In short, it seemed the new administration itself had failed to figure out “what the hell is going on.”

It became clear that the order had been formulated by “a handful of Trump political appointees” working in the White House with little expertise in the complications the policy invoked.⁷ Sen. Lindsey Graham reportedly told the president that it appeared that “some third grader wrote it on the back of an envelope.”⁸ An array of relevant government agencies were purposefully cut out of the drafting process;⁹ the DHS inspector general concluded that the department “and its components had no opportunity to provide expert input in drafting the EO. Answers to critical questions necessary for implementation were undefined when the EO issued.”¹⁰ In December 2018, former DHS secretary John Kelly acknowledged that “I had very little opportunity to look at” the drafts of the order.¹¹ (Blain Rethmeier, who worked on the DHS transition team, put it more colorfully: “[Kelly] got handed a shit sandwich the first week on the job.”)¹²

Legal questions arose quickly as well: for instance, could an executive order actually bar permanent residents from reentry? Did the EO represent an impermissible religious test in operation? The acting attorney general (Trump’s nominee to the post had not yet been confirmed) had not been consulted—and only learned of the EO’s existence when her deputy read about its issuance on the New York Times website.¹³ At first the Department of Justice (DOJ) denied all knowledge of the order; later it transpired that the acting head of DOJ’s Office of Legal Counsel (OLC) had quickly reviewed it and issued a one-sentence statement saying the EO was “approved with regard to form and legality” (though in fact attorneys there had “strenuously objected that it needed further review”).¹⁴ The acting attorney general disagreed with OLC and decided the Justice Department would not defend the EO in court. She was immediately fired, and charged by the White House with “betrayal.” But a series of judges soon took a similar view and blocked implementation of the order.¹⁵

As it struggled to deal with the aftermath, the administration issued reams of conflicting statements, then dropped EO 13769 altogether: on March 6, the president issued a second, revised executive order. Six months later, on September 24, a quite different version was promulgated, this time formatted as a proclamation. It was that third iteration of the “ban” that was ultimately upheld by a divided U.S. Supreme Court in late June 2018, eighteen months after the first version was issued.¹⁶ By then, yet another EO had been issued allowing a trickle of refugees to enter the United States once more.¹⁷

The travel ban saga—the fact of the order, its substance, and the reaction to it—highlights two key elements of this book.

The first is simply that executive orders matter. President Trump’s signature set in motion important and immediate alterations in U.S. government policy. More generally, EOs are a mechanism through which the president can exercise delegated statutory authority or constitutional powers, potentially producing consequential substantive change across a wide range of policy arenas. As increased partisan polarization makes legislative action ever harder to achieve, the importance of unilateral directives to presidential policymaking rises apace. And even though EOs are directly aimed at shaping the behavior of government employees, their impact on the public may be significant. It is no wonder presidents have long agreed with Clinton White House aide Paul Begala when it comes to unilateral action: “Stroke of the pen—law of the land. Kind of cool.”¹⁸

Second, and far less intuitively: the executive branch matters to executive orders. Pundits often present such directives as literally unilateral, as do presidents: George W. Bush, for instance, told a group of supporters in 2004 that “Congress wouldn’t act, so I signed an executive order. That means I did it on my own.”¹⁹ But (as discussed in a moment) he did not. The “stroke of a pen” is cool—but it is also the culmination of the input, influence, and frequently even instigation of the wider bureaucracy. As a result, we can recast the issuance of executive orders as a function of presidential management.

The travel ban may seem an odd way to make this point: after all, President Trump really did act by himself, with the help of a White House aide or two. Yet given the chaos that ensued, from runways to courtrooms, the travel ban highlights the sway of executive branch engagement as an exception that proves the rule. As Politico reported later, the “nonpartisan experts had not been consulted before the orders were drafted.… Typically, an executive order of such immense impact would have undergone weeks, if not months, of … interagency review. Instead … former NSC staffers say they were asked to review the travel ban and about half a dozen other draft executive orders in less than a day.”²⁰ The EO damaged the president, politically, because it was so poorly conceived and crafted, substantively. “If Trump really wanted to bar refugees or citizens from specific countries,” the careerists said, “they would have helped him do it in a smarter way.”²¹ The version accepted by the Supreme Court more than a year later was much revised to reflect substantial bureaucratic input.

In the travel ban case, the influence of departments and agencies is visible as a photographic negative—that is, in the glaring legal and material errors its absence caused. As Sen. Lamar Alexander put it, “this vetting process needed more vetting.”²² But more generally, agency involvement is harnessed in order to drive positive changes to the substance of an EO. For the Bush “equal treatment” order just noted, staff located in the new Office of Faith-Based and Community Initiatives worked closely with White House lawyers and domestic policy advisors as well as a range of other experts across the bureaucracy invited to comment by the Office of Management and Budget in a comprehensive departmental review process. The Justice Department weighed in on constitutional issues of church and state; the Labor Department advised on matters relating to employment discrimination. Agency feedback and pushback were brought on board as the EO took final form. “Nobody was wanting to miss a loop,” one Justice Department drafter noted later, given the importance of the order to Bush’s domestic policy program.²³

Agency influence may be even more extensive than this. Often a department serves as an order’s originator—often to the president’s benefit, as we will see, but not always to the president’s pleasure. Even as criticism of EO 13769 grew, for instance, Trump repeatedly railed that DOJ’s efforts to replace it were “bullshit,” even tweeting angrily that “the Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to [the Supreme Court].”²⁴ Yet it is Trump’s signature on that “watered down” version. And if that variant of agency authority is uncommon, bureaucratic politics more broadly are not. Those politics, and the agency sway they reflect, mean that draft EOs are almost always amended, frequently delayed, and sometimes abandoned entirely.

Healthy Children and Logged Lobbyists

To make that point more concrete, let’s consider a tale of two orders—or, more accurately, two tales that led to only one order.

Bill Clinton issued Executive Order 13045—“Protection of Children from Environmental Health Risks and Safety Risks”—on April 21, 1997.²⁵ The EO declared that children “may suffer disproportionately” from such risks, and thus, each federal agency was to “make it a high priority to identify and assess” them and to “ensure” they were addressed by “its policies, programs, activities, and standards.” It created a task force (co-chaired by the Health and Human Services [HHS] secretary and by the administrator of the Environmental Protection Agency [EPA]) and also an “interagency forum” (convened by the Office of Management and Budget [OMB]) to track research regarding risks to children and produce an “annual compendium of the most important indicators” of their well-being.

Most critically, perhaps, the order added a new hook to the regulatory review function conducted by OMB’s Office of Information and Regulatory Affairs (OIRA). Agencies still had to justify to OIRA why the benefits of a proposed regulation exceeded its costs, and then defend their “evaluation of the environmental health or safety effects of the planned regulation on children,” and provide “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.” As an aside, the new EO revoked a Reagan-era order requiring similar government-wide rulemaking attention to “family policymaking criteria,” notably “the marital commitment.”²⁶

If surveyed solely from the point of issuance, EO 13045 has many attributes traditionally associated with unilateralism, suggesting a president imposing his will on the executive branch. The order created new, centralized processes to reflect presidential preferences and priorities. A predecessor’s actions were set aside. Bureaucrats complained about its burdens. Outside critics grumbled—a front-page Washington Times story quoted riled representatives of the Heritage Foundation and the Family Research Council, while then senator Jeff Sessions introduced a bill to overturn Clinton’s action—but could not gain much traction.²⁷ President one, agencies (and enemies) nil?

Yet if we pan out to include the formulation of the order in the analysis, the impact and ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface and Acknowledgments
• List of Abbreviations
• 1. “On My Own”? Executive Orders and the Executive Branch
• 2. Bargaining with the Bureaucracy: Presidential Management and Unilateral Policy Formulation
• 3. Executive Orders: Structure and Process
• 4. Executive Orders: Birds, Bees, and Data
• 5. Testing Presidential Management: The Conditions of Centralization
• 6. A Brief History of Time (to Issuance)
• 7. “Dear John”: The Orders That Never Were
• 8. Incorrigibly Plural: Concluding Thoughts and Next Steps
• A Note on Sources
• Notes
• Selected References
• Index