The Power of the Presidential Pen— The benefits and pitfalls of executive orders–

The Power of the Presidential Pen— The benefits and pitfalls of executive orders–71gh.,b12-1

Trump signs an executive order to support black colleges and universities, February 28, 2017.

But the pen and the phone weren’t Obama’s to keep; they stay in the Oval Office, at the Resolute Desk—where one now finds President Donald Trump, pen and phone happily in hand.

Even as legislative debates are just beginning in earnest, the new president already has issued a flurry of executive orders. He started with EO 13765, “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal,” and followed with orders on such matters as executive-branch ethics (EO 13770), human trafficking (EO 13773), “high priority infrastructure projects” (EO 13766), and various regulatory-reform orders requiring agencies to review or mitigate the burdens they place on American people and businesses (EO 13771 and 13777). And, of course, there were executive orders on “border security and immigration enforcement improvements” and “protecting the nation from foreign terrorist entry into the United States,” EO 13767 and 13769, which you may have heard about.

Presidents Obama and Trump are hardly unique in their use of executive orders, as the Congressional Research Service explains in its brief history of the subject. “Despite the amorphous nature of the authority to issue executive orders, presidential memoranda, and proclamations, these instruments have been employed by every President since the inception of the Republic,” the CRS writes, citing President Washington’s June 8, 1789, order to his cabinet departments, directing them to give him a “clear account” of their departmental affairs.

President Trump’s early and energetic use of executive orders is understandable, at least to the extent that he is focused upon repealing and replacing the executive orders of his predecessor, and more broadly on reining in the administrative machinery that flourished and expanded under President Obama’s stewardship.

And this is not entirely a bad thing, as Alexander Hamilton observed in Federalist 70, on the subject of “energy in the executive.” We often think of his argument in terms of national security or foreign affairs, but he stressed the importance of the executive’s energy at home, too:

In short, energetic presidential action can and must be a useful means to honorable ends. But presidential power also has real costs. And for both the costs and the benefits, we must take care to look beyond the obvious ones.

By “obvious,” I mean that we can set aside for now the president’s rightful power to refuse to enforce unconstitutional statutes, a nonenforcement power that vindicates several constitutional provisions: the supremacy clause’s guarantee that the Constitution supersedes contrary statutes; the president’s constitutional oath to “faithfully execute the Office of President” and to “preserve, protect, and defend the Constitution”; and his constitutional duty to “take Care that the Laws be faithfully executed.”

But what about executive orders and presidential actions that fall between those two extremes? That is the real challenge for all of us, especially at this particular moment. As with so much about the new administration, the task especially for conservatives is to think pragmatically and realistically about the benefits and drawbacks of the modern use of executive orders. Let’s begin with the benefits.

First, a president can use executive action to repeal or reform his predecessor’s own uses of executive action. If a previous president used executive power to direct agencies, then the new president can use the same executive power to undo those directives. The pen and phone giveth; the pen and phone taketh away.

On this point, keep in mind: A new president can use executive orders to undo other executive orders, but he can’t use them to undo regulations that a previous administration promulgated through the administrative agencies. If an agency promulgated regulations through the Administrative Procedure Act’s “notice-and-comment” process for rulemaking, then the new administration will ultimately need to use the same notice-and-comment process to repeal or reform those regulations.

But a president can use executive orders to start and shape this process, and that is a second benefit of executive orders. A president can order agencies to review old regulations, and even to kick-start a new regulatory process to reform or repeal old regulations. And to the extent that a statute gives an agency discretion to craft policy, the president can order the agency to exercise that discretion in his own preferred way.

On this point, as with the last, we must be very precise: A president cannot order agencies to ignore the limits or considerations that Congress has written into lawful statutes. But to the extent that Congress has left agencies with genuine discretion, the president himself can limit and direct that discretion—and the agencies, in turn, are free in the rulemaking process to ignore comments submitted by critics of the president’s lawful policy.

The D.C. Circuit recognized this just a few years ago, in a case called Sherley v. Sebelius (2012). Affirming the Obama administration’s controversial policy on funding scientific research on embryonic stem cells, the court stressed that Obama’s executive orders freed his agencies from their usual obligation to respond meaningfully to substantive comments criticizing the new stem-cell research policy. Had the agencies implementing his policy—the Department of Health and Human Services and the National Institutes of Health (NIH)—come up with this policy on their own, the Administrative Procedure Act would have required the agencies to grapple seriously with such criticism; but because the president himself ordered this policy, and because that policy did not exceed the discretion Congress had given to the agencies, those agencies could ignore criticism of the president’s policy.

“NIH may not simply disregard an Executive Order,” the D.C. Circuit explained. “To the contrary, as an agency under the direction of the executive branch, it must implement the President’s policy directives to the extent permitted by law. .  .  . Bound as it is to carry out the President’s directives, NIH thus reasonably limited the scope of its Guidelines to implement the Executive Order.”

The third benefit of executive orders relates to the first two. Just as executive orders allow a president to undo his predecessor’s orders, and to channel his agencies’ lawful discretion in his preferred ways, his use of executive orders also promotes transparency and political accountability. If the president strongly believes in a new policy, and if he intends to drive his agencies to execute that policy, then we should welcome his doing this publicly, through executive orders, instead of behind the scenes. By signing executive orders, the president is directly politically accountable for his policy. He can’t blame his agency heads for what is really his own doing.

Those are some benefits of executive orders. What about the dangers? First, there is a danger that the president and his supporters—including his supporters in Congress—will confuse executive orders with actual accomplishments. Signing an executive order is the beginning of a process, not just the end of one. True, the signing of an executive order, like the signing of legislation, changes the legal or practical context in which real action can occur; and to that end, the president’s supporters should welcome his signatures. But beyond that initial table-setting, an executive “order” is just that: The president is ordering others to accomplish a great deal. Now begins the hard work of actual governance. When presidential adviser Stephen Miller said, just weeks after the inauguration, that “we have a president who has done more in three weeks than most presidents have done in an entire administration,” one worries that he has lost sight of this distinction between words and deeds.

The second danger, related to the first, is that executive orders lack “buy in” from the administrative bureaucracy. Executive orders tell agencies to do things that the agencies might not otherwise do—indeed, that is the whole point of executive orders, at least at our present political moment. For all of our complaints about the administrative bureaucracy, we ultimately need the bureaucrats to carry out the policies of Congress and the president. But executive orders begin that process on a fundamentally adversarial basis.

This is a real danger: Politico, the New York Times, Greenwire, and others have already reported on bureaucratic “resistance” to President Trump’s agenda and even to the cabinet appointees to whom they are supposed to answer.

The third danger of executive orders is that they risk undermining judicial confidence in the rules, orders, and other regulatory actions that ultimately come out of the agencies. Modern administrative law is marked by the tension between two characteristics of administrative agencies: their political accountability and their technocratic expertise. Executive orders promote political accountability, but they risk undermining the courts’ belief in the agencies’ expertise. And thus executive orders can spur courts to micromanage agencies’ good-faith efforts to reform the administrative state.

Finally, executive orders divert the president’s energy from the hard work of legislation. Congress has an opportunity to successfully legislate serious reforms: repealing and replacing Obamacare, reforming the Dodd-Frank financial laws, and modernizing the many other statutes that empower our modern administrative state. The president has an important role in the legislative process, and not just in terms of the roles given to him by the Constitution.

That is the risk of channeling too much presidential energy into executive orders. If the president and his supporters are seduced by the seemingly friction-free ease of signing executive orders, they may become less interested in doing the hard, slow work of engaging the legislative process. That was ultimately the story of the Obama administration; it might become the story of the Trump administration.

In the end, if the costs of executive orders outweigh their benefits, such concerns should be directed not to the White House, but to Congress. Again, the Framers expected each branch to push the limits of its own power. The Madisonian answer is to make ambition counteract ambition. To the extent that a president uses executive orders too much, or for the wrong reasons, it falls to Congress to reassert its own power, as the Constitution’s first branch. As Justice Robert Jackson warned in 1952, when the Supreme Court struck down President Truman’s executive order nationalizing the nation’s steel mills, “only Congress itself can prevent power from slipping through its fingers.”



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s