With the Stroke of a Pen

Executive Orders and Presidential Power

Kenneth R. Mayer

• Publisher: Princeton University Press
• Year: 2021
• ISBN:
  9781400824243
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

The conventional wisdom holds that the president of the United States is weak, hobbled by the separation of powers and the short reach of his formal legal authority. In this first-ever in-depth study of executive orders, Kenneth Mayer deals a strong blow to this view. Taking civil rights and foreign policy as examples, he shows how presidents have used a key tool of executive power to wield their inherent legal authority and pursue policy without congressional interference. Throughout the nation's life, executive orders have allowed presidents to make momentous, unilateral policy choices: creating and abolishing executive branch agencies, reorganizing administrative and regulatory processes, handling emergencies, and determining how legislation is implemented. From the Louisiana Purchase to the Emancipation Proclamation, from Franklin Roosevelt's establishment of the Executive Office of the President to Bill Clinton's authorization of loan guarantees for Mexico, from Harry Truman's integration of the armed forces to Ronald Reagan's seizures of regulatory control, American presidents have used executive orders (or their equivalents) to legislate in ways that extend far beyond administrative activity. By analyzing the pattern of presidents' use of executive orders and the relationship of those orders to the presidency as an institution, Mayer describes an office much more powerful and active than the one depicted in the bulk of the political science literature. This distinguished work of scholarship shows that the U.S. presidency has a great deal more than the oft-cited "power to persuade."

One

Why Are Executive Orders Important?

He’ll sit here, and he’ll say “Do this! Do that!” And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.

(Harry Truman on Eisenhower, cited in Richard

Neustadt, Presidential Power)

IN JANUARY 1995 President Bill Clinton, House Speaker Newt Gingrich (R-Ga.), and Senate Majority Leader Bob Dole (R-Kan.) met to discuss how the United States should respond to a rapidly deepening economic crisis in Mexico. Faced with the prospect of a complete meltdown of the Mexican economy, Clinton secured the support of Dole and Gingrich for legislation to fund $40 billion in loan guarantees for the Mexican government.¹ Despite the support of congressional leaders, former presidents George Bush and Gerald Ford, and Federal Reserve Board chairman Alan Greenspan, rank-and-file legislators objected to the loan guarantees as a Wall Street bailout. Prospects for approval evaporated when a group of prolabor Democrats, still smarting from the 1993 ratification of the North American Free Trade Agreement, formed an unlikely alliance with conservative isolationist Republicans to oppose the plan. By January 20 the GOP leadership declared the legislation dead.²

In response Clinton unilaterally authorized $20 billion in loan guarantees on his own authority, relying on a little-noticed program called the Exchange Stabilization Fund, or ESF. Many members of Congress were outraged, arguing that the ESF, created in 1934 to allow the U.S. government to protect the dollar in international currency markets, was never intended for such a use.³ Yet Congress could not stop the president.⁴ Clinton, though humiliated by the Republican sweep in the 1994 elections and weakened by mass defections within his own party, was still able to commit to a multibillion dollar program without any meaningful interference.

On August 17, 1998, Clinton testified before a grand jury, empaneled by Independent Counsel Kenneth Starr, about his relationship with White House intern Monica Lewinsky and the question of whether he had lied under oath in the civil lawsuit against him filed by Paula Jones. Although Clinton had for months denied any sexual relationship with Lewinsky, he was forced to admit that he had, in fact, engaged in what he called “inappropriate, intimate conduct” with her. The admission (which Clinton repeated in a nationally broadcast television speech that night), ignited a firestorm. His opponents called for his resignation and impeachment, and many of his supporters were furious that he had misled them for months. Clinton’s presidency appeared to be teetering on the brink of an abyss.

Three days later, on Thursday, August 20, the U.S. Navy fired dozens of cruise missiles at a terrorist training camp in Afghanistan and a chemical facility in the Sudan suspected of manufacturing nerve gas. Although some congressional Republicans gently raised questions about the Wag the Dog-like timing of the strikes (referring to the popular 1997 movie in which a president stages a fake war against Albania in order to divert attention from his sexual affair with a teenager), few offered anything more than tepid criticism. At a time when conventional wisdom believed that Clinton was certain to resign or be impeached, American military forces launched attacks on his word. Clinton also issued an executive order that froze any U.S. assets belonging to Osama bin Laden, whom the United States charged was behind the embassy bombings.⁵

Executive Orders and Executive Initiative

These chronicles of presidential decisiveness and unilateral action are at odds with the prevailing scholarly view of presidential power. Among political scientists the conventional wisdom is that the president is weak, hobbled by the separation of powers and the short reach of his formal legal authority. Presidential power, far from being a matter of prerogative or legal rule, “is the power to persuade,” wrote Richard Neustadt in the single most influential statement about the office in the past fifty years.⁶ Yet throughout U.S. history presidents have relied on their executive authority to make unilateral policy without interference from either Congress or the courts. In this book, I investigate how presidents have used a tool of executive power—the executive order—to wield their inherent legal authority. Executive orders are, loosely speaking, presidential directives that require or authorize some action within the executive branch (though they often extend far beyond the government). They are presidential edicts, legal instruments that create or modify laws, procedures, and policy by fiat.

Working from their position as chief executive and commander in chief, presidents have used executive orders to make momentous policy choices, creating and abolishing executive branch agencies, reorganizing administrative and regulatory processes, determining how legislation is implemented, and taking whatever action is permitted within the boundaries of their constitutional or statutory authority. Even within the confines of their executive powers, presidents have been able to “legislate” in the sense of making policy that goes well beyond simple administrative activity. Yale Law School professor E. Donald Elliot has argued that many of the thousands of executive orders “plainly ‘make law’ in every sense,”⁷ and Louis Fisher finds that despite the fact that the Constitution unambiguously vests the legislative function in Congress, “the President’s lawmaking role is substantial, persistent, and in many cases disturbing.”⁸

A short review confirms that executive orders can have profound consequences. In 1939 President Franklin Roosevelt used an executive order to establish the Executive Office of the President (EOP), the touchstone of modern presidential leadership;⁹ Clinton Rossiter concludes that this step may have “saved the Presidency from paralysis and the Constitution from radical amendment.”¹⁰ Other Roosevelt executive orders were clearly inimical to civil liberties and democratic values, most notably his February 1942 order that authorized the internment of thousands of Japanese Americans during World War II.¹¹

Presidents have resorted to executive orders to implement many of the nation’s most dramatic civil rights policies. These include Harry S Truman’s integration of the armed forces¹² and Dwight D. Eisenhower’s calling the Arkansas National Guard into active military service in Little Rock, Arkansas, in order to enforce a court order to integrate Central High School.¹³ The American Council on Race Relations reported in 1948 that Truman’s military desegregation orders “demonstrate that in government the area of administration and executive authority is equal in importance to legislation and judicial decision” in fostering equal opportunity and civil rights.¹⁴

Within the civil rights community the executive order became a powerful symbol of presidential commitment to racial equality. Shortly after John F. Kennedy’s inauguration, Martin Luther King, Jr., urged the new president to use his executive authority to combat racial discrimination, citing the historical practice of presidents’ issuing civil rights executive orders “of extraordinary range and significance.”¹⁵ It was through an executive order that “affirmative action” became part of the national consciousness, after President Kennedy used the term in an executive order establishing a Presidential Committee on Equal Employment Opportunity, and thereafter President Lyndon Baines Johnson referred to it in a follow-on order that made eligibility for government contracts conditional upon the implementation of adequate affirmative action programs.¹⁶

Through executive orders, presidents have almost single-handedly created the federal government’s classification system for national security information, as well as the personnel clearance process that determines whether individuals will have access to that information. Though purely administrative in nature, these rules and procedures have produced dramatic violations of individual rights and civil liberties, and they have given the president decisive advantages in disputes with Congress over the course of American foreign policy. University of Wisconsin historian Stanley Kutler, in his 1997 book on President Richard M. Nixon’s White House tapes, traced the origins of Watergate to Nixon’s obsession with the leak of the Pentagon Papers, the infamous top-secret study of America’s involvement in Vietnam.¹⁷ The extent of presidential control over information has, according to political scientist Robert Spitzer, served as a “key source of presidential ascendancy” in the post-World War II political environment.¹⁸

President Truman seized the nation’s steel mills in 1952 with Executive Order 10340,¹⁹ a consequential step in itself that became more important when it resulted in the twentieth century’s most important judicial statement on the limits of presidential power, in Youngstown Sheet and Tube Co, v. Sawyer, 343 U.S. 579 (1952).²⁰ With the order the government took possession of eighty-six of the country’s steel mills, representing well over 80 percent of the industry’s capacity.

With Executive Order 12291,²¹ President Ronald Reagan tried to wrest control over federal regulatory activity from executive branch agencies. The order gave the Office of Management and Budget (OMB) the right to review proposed regulations to ensure that they were justified by costbenefit analysis and in line with the president’s broader agenda. This order, which extended earlier and less successful efforts by presidents Nixon, Ford, and Carter to contain regulatory expansion, “brought agencies under presidential control as never before,”²² and in doing so spurred a “minor revolution” in constitutional theories of presidential authority over administration.²³ George Bush’s White House counsel, C. Boyden Gray, noted that Executive Order 12291 was “considered revolutionary at the time . . . and has earned the reputation as one of the most farreaching government changes made by the Reagan Administration.”²⁴

A president can declare a national emergency by executive order, a step that authorizes an immense range of unilateral warrants, including—theoretically—the power to restrict travel, impose martial law, and seize property, transportation networks, and communications facilities.²⁵ And even orders that lack such sweeping effect can still be extraordinarily important to particular interest groups or constituencies, who seek substantive or symbolic redress for their concerns. Congress, in an attempt to protect its own prerogatives, regularly probes the appropriate limits of the executive’s independent power through investigations of particular executive orders.²⁶

Technically, although the term was not in use at the time, the Louisiana Purchase was carried out by an executive order.²⁷

Presidents and their staffs consider executive orders an indispensable policy and political tool. In the wake of the 1994 congressional elections that gave the Republicans control of both chambers for the first time in four decades, Clinton White House officials predicted a renewed emphasis on “regulations, executive orders, and other presidential tools to work around Capitol Hill, much as Ronald Reagan and George Bush did when the House and the Senate were in Democratic hands.”²⁸ In 1998, as Clinton headed for impeachment, his advisors noted that he would resort to executive orders and other unilateral actions to show that he remained capable of governing. In a statement that both summarized the White House position and served to provoke congressional Republicans, advisor Paul Begala outlined the strategy to New York Times reporter James Bennett: “Stroke of the Pen . . . Law of the Land. Kind of cool.”²⁹

Executive orders often become part of public discourse as both a symbol of energy in the executive and a sign that government is running amok. Contenders for the 1996 Republican presidential nomination promised to issue executive orders as their first presidential acts: Phil Gramm to end the policy of affirmative action in government contracting, Pat Buchanan to reinstate previous bans on fetal tissue research and abortions at overseas medical facilities.³⁰ In the early phase of the 2000 Democratic presidential primary, former senator Bill Bradley (D-N.J.) and Vice President Al Gore sparred over whether the Clinton White House had been sufficiently aggressive in using executive power to end racial profiling. In a February 2000 debate, Bradley promised to issue an executive order barring racial profiling by the federal government. When Gore promised that he, too, would use the president’s power to end profiling, Bradley countered in what would become one of the campaign’s testier—and more memorable—exchanges of the primary season:

Mr. Bradley: Last month, at the debate in Iowa, when Al said the same thing, that he would issue an executive order, I said, why doesn’t he walk down the hall now and have President Clinton issue the executive order? Now, Al, Al said that I shouldn’t give President Clinton lectures. I am not giving President Clinton lectures. I am questioning why you haven’t done that or why you haven’t made this happen in the last seven and a half years.

Mr. Gore: First of all, President Clinton has issued a presidential directive under which the information is now being gathered that is necessary for an executive order. Look, we have taken action. But, you know, racial profiling practically began in New Jersey, Senator Bradley. Now, the mayor, the mayor, the African-American mayor of the largest city in New Jersey said that he came with a group of African-American elected officials or contacted you to see if you would help on this, and that you did not. Did you ever call or write or visit with respect to racial profiling when they brought it to your attention?³¹

The phrase “stroke of a pen” is now virtually synonymous with executive prerogative, and it is often used specifically to refer to the president’s ability to make policy via executive order. Safire’s Political Dictionary defines the phrase as “by executive order; action that can be taken by a Chief Executive without legislative action.” Safire traces the political origins of the phrase to a nineteenth-century poem by Edmund Clarence Stedman, but it was in use long before this, at least as a literary metaphor signifying discretionary power or fiat. The phrase became most widely known during the 1960 presidential election campaign, when Democrats made an issue of Eisenhower’s refusal to issue an executive order banning discrimination in housing and ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Figures and Tables
• Preface to the Paperback Edition
• Acknowledgments
• Chapter One: Why Are Executive Orders Important?
• Chapter Two: Executive Orders and the Law
• Chapter Three: Patterns of Use
• Chapter Four: Executive Orders and the Institutional Presidency
• Chapter Five: Executive Orders and Foreign Affairs
• Chapter Six: Executive Orders and Civil Rights
• Chapter Seven: Conclusion
• List of Abbreviations
• Notes
• Index