Hearing of the
Subcommittee on Legislative and Budget Process

The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?

Statement of Robert Bedell,
Administrator, Office of Federal Procurement Policy, OMB (1986-1988); Deputy & Acting Administrator, Office of Information & Regulatory Affairs, OMB (1983-1986); Deputy and Acting General Counsel, OMB (1973-1983); President, RPB Company

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I am Bob Bedell and the Subcommittee invited me to testify during these hearings entitled "The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?" My perspective on the Executive Order process was gained from the 15 years I spent as an employee of the Office of Management and Budget from 1973 until 1988. I was the Deputy General Counsel and often Acting General Counsel until 1983. The OMB's General Counsel's Office is responsible for preparing Executive Orders for the President's consideration. From 1983 through most of 1986, I was the Deputy and often Acting Administrator of the Office of Information and Regulatory Affairs (OIRA) at OMB, where I carried out President Reagan's Executive Order No. 12291 establishing his regulatory policies. And from 1986 until 1988, I was the Administrator of the Office of Federal Procurement Policy at OMB.

There are orders by the Chief Executive and there are Executive Orders. Executive Orders are only one of several ways by which Presidents have communicated their policies and instructions to the heads of Executive departments and agencies.

Executive Orders are defined by statute to include documents issued by Presidents that have "general applicability and legal effect."⁽¹⁾ They do not include orders that are "effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof.""⁽²⁾ Since the enactment of the Federal Register Act"⁽³⁾ in 1936, these Executive Orders have been required to be published in the Federal Register"⁽⁴⁾ so that the public and Congress may be informed of the President's policies and instructions.

Orders of the President that do not have general applicability and legal effect, or that apply only to Federal agencies or employees are not required to be published in the Federal Register. These orders may be published or they may not be. Some of these orders and instructions dealing with the Federal Budget are published by the Office of Management and Budget as OMB Circulars. They deal with everything from the procedures and requirements for the preparation of the Budget that Federal law requires the President to submit annually, to instructions on how to implement the Federal Advisory Committee Act.

Like Executive Orders, these Circulars can be quite important and are frequently watched with great interest by the public, the press and Congress. Examples of these Circulars are the designation of Standard Metropolitan Statistical Areas, the setting of overhead rates for various non-profit organizations, and the requirements and procedures for Federal agencies concerning contracting out for commercial services. Frequently, Congress will hold hearings examining these activities. I have testified at several.

My point in raising the OMB Circulars is partly to explain where some of the orders and instructions may be found that do not meet the statutory requirements to be an Executive Order published in the Federal Register. It is also my purpose to point out that there are a large number of documents that have been used by Presidents – and often relied upon by Congress – to oversee and administer the responsibilities of the Executive Branch of the Federal Government, and that Executive Orders are only one of a number of these mechanisms.

There are numerous other kinds of Presidential directives (often named differently in different Administrations) including Presidential Memoranda and National Security Decisions, which are not published but by which the President provides general instructions to agency heads of his policy preferences. Furthermore, there are the daily "orders" of the President and his delegates that are essential for running any government or any enterprise for that matter. Such decisions include those instructing the officers and employees of the Executive Branch with regard to budget and funding decisions, appointments to office, the construct of proposed legislation, national security decisions. Sometimes these meet the statutory requirements of the Federal Register Act and are processed and published in the Federal Register"⁽⁵⁾. Many times they do not.

Often, Executive Orders, Reorganization Plans, Federal agency rules and congressional enactments become intertwined creating the governing law for a matter or an activity.

A VERY SHORT OVERVIEW OF EXECUTIVE ORDERS

Executive Orders have been used by Presidents since the founding of the United States in order to communicate the President's policy preferences to his appointees, Congress and the public, and to guide agency heads in the exercise of their discretion. (Executive Orders are also used by many, if not all, of the Governors of the States.)

From 1907 until the Federal Register Act of 1936, every Executive Order was assigned a number by the Department of State. Orders issued prior to 1907 were assigned numbers retroactively. But if the Department of State did not have a document, it did not assign it a number.

Prior to 1936 when the Federal Register Act required Executive Orders with general applicability and legal effect to be published in the Federal Register, there was no single place to go to find the full text of them. Instead, there are various collections and compilations of the messages and papers of the Presidents, from President Washington on. As you might imagine, these collections and compilations include all matters of state; some of the documents would meet our current definition of an Executive Order and others would not. Perhaps the best single source for Executive Orders is the CIS Index to Presidential Executive Orders & Proclamations, 1789-1983.

Since 1936, "Executive Orders" have been published in the Federal Register, and since 1938, they have been compiled annually in Title 3 of the Code of Federal Regulations. Since 1941, Executive Orders have been published in the U.S. Code Congressional and Administrative News. And, since 1965, Executive Orders can also be found in the Weekly Compilation of Presidential Documents.

Because an Executive Order remains in effect until modified and Presidents have often modified Orders issued by their predecessors or even themselves, there now are publications that indicate the Orders that have been rescinded, modified or that have not been, at least those Orders issued since 1945.

Recent Presidents have issued hundreds of Executive Orders. President Kennedy issued 214 Executive Orders from 1961-1963"⁽⁶⁾. President Johnson issued 324 from 1963-1969"⁽⁷⁾. President Nixon issued 346 from 1969-1974"⁽⁸⁾. President Ford issued 169 from1974-1977"⁽⁹⁾. President Carter issued 320 from 1977-1981"⁽¹⁰⁾. President Reagan issued 381 from 1981-1989"⁽¹¹⁾. President Bush issued 166 from1989-1993"⁽¹²⁾. And President Clinton has issued 307 Executive Orders from 1993-Present"⁽¹³⁾.

The Office of the Federal Register, created in the Federal Register Act of 1936, is now located in the National Archives and Records Administration and is responsible for the display and publication of Executive Orders.

THE PROCESS BY WHICH EXECUTIVE ORDERS ARE ISSUED

The process by which Executive Orders are issued is itself the subject of an Executive Order, currently Executive Order No. 11030, issued on June 19, 1962 by President Kennedy. This Order appears in the Federal Register"⁽¹⁴⁾ and in the Code of Federal Regulations for the relevant period"⁽¹⁵⁾. As is the custom with modern Executive Orders, E.O. 11030 cites the Executive Orders (if any) that it supercedes, modifies or repeals, in this instance, Executive Order 10006 of October 9, 1948. One of the earliest Executive Orders on Executive Orders was Executive Order 5220 issued by President Hoover in 1929.

Under the current Executive Order on Executive Orders, a formal process for issuing this form of Presidential command has evolved. The process has four critical features:

Once these steps have been concluded, the Executive Order is presented to the President for his signature. The White House Clerk then transmits the signed Executive Order to the Office of the Federal Register for numbering and publication.

AREAS OF INTEREST TO THE SUBCOMMITTEE

In your letter inviting me to testify, you asked several questions and described several areas of interest, including–

I believe that I have described the process by which Executive Orders are promulgated already, but will be pleased to address any other questions that the Subcommittee may have.

With regard to the legal guidelines for Executive Orders, let me comment briefly on the OMB role in addressing the legal issues concerning Executive Orders. First, the draft Orders are processed by the OMB General Counsel's Office, which coordinates with the relevant interests in the Executive Office of the President and the Department and Agencies. OMB General Counsel seeks to ensure that from the beginning there is sufficient authority for the issuance of the proposed Executive Order. In cases of doubt, the proposal is circulated to the Department of Justice at the initial stage, so that OMB may obtain an early opinion as to the legality of the proposal, as submitted, and whether changes are necessary to conform to the law.

The OMB General Counsel frequently coordinates with the Department of Justice, both formally and informally, if there are significant questions about the authority involved or to determine if there are constraints upon the direction an Order must adhere to. The final call on the legality of a proposed Executive order is the responsibility of the Attorney General, through the Office of Legal Counsel, within the Department of Justice, during the formal transmission from the Director of OMB to the President. The White House staff will not initiate the final approval process for a proposed Executive order unless there is an opinion from the Department of Justice approving the proposed order on legal grounds. Finally, during the White House staff circulation of a proposed Executive order, the matter is reviewed by the White House counsel, who consults frequently with OMB and the Department of Justice about any questions of the President's legal or constitutional authority to issue the proposed order.

I should also add that each Executive Order begins with a statement of the authority for its issuance. Many times this is a statute enacted by Congress, sometimes it is purely an exercise of the President's authorities under the Constitution and sometimes it is a combination of the two. If a statute authorizes or requires the President to do something, the question of whether the President has somehow exceeded his authority is answered by looking to see whether what he does is within the scope of what Congress authorized him to do. If it is, the questions about authority (and encroachment on the prerogatives of Congress) I believe are largely resolved. If it is outside the scope of what is authorized by a statute, and not otherwise authorized by another statute or the Constitution, that action should be reversed. Federal courts have not hesitated to overturn Executive Orders that exceed the President's authority, most notably in the case of the Executive Order issued by President Truman to seize the steel mills during the Korean War.

The most difficult legal situation is where the President relying upon either a constitutional provision or a general statutory provision takes action in a field that has been highly regulated by Congress.

Sometimes – although rarely -- the legal judgments of the President's lawyers are not correct. This is in part because some judgments are close calls without clear precedent. Although I have no empirical evidence to support this, I believe that in most of these cases, the Executive Order is overturned as to its offending provisions. For most – if not all – Executive Orders, judicial oversight is generally available as is congressional oversight.

With regard to the impact that Executive Orders may have on the prerogatives of the Congress, I think that in very few instances – primarily where the Constitution or the Congress itself has assigned a responsibility or authority to the unreviewable discretion of the President – are the prerogatives of Congress unalterably affected by an Executive Order. Congress can act to undue what a President has done by Executive Order in most instances. The prerogative of Congress to legislate is accordingly not unalterably affected by most Executive Orders.

As a practical matter, if Congress chooses to over-ride a feature of an Executive Order by enacting a statute, the President may require that each House approve that legislation by a 2/3 vote, often a tall order. But this is the case with any legislation as provided in the Constitution. The real question is whether the President has the requisite authority to do what he proposes in an Executive Order, and I believe that Congress retains its full panoply of prerogatives to deal with it.

The question of whether Presidents have become more assertive in issuing Executive Orders and the Congress less diligent in reviewing them and their authorities is a different question, of course, and one that is difficult for me to assess. I do know that the congressional oversight of programs that I helped to run at OMB was often quite intense. I find it hard to imagine more intense oversight by Congress than its constant review of OMB's review of agency regulations under President Reagan's Executive Order 12291. On the other hand, the newspapers tell me that Congress has not been slow to review and criticize the actions of successor Presidents, including their Executive Orders.

Whether it is any more or less intense today is hard for me to tell. But what I think is clear is that Congress – regardless of the Majority party – must carefully review presidential Executive Orders to ensure that the necessary authority is present and to ensure that they agree with the policy involved. If it doesn't, then it needs to address it as best it can, like any other decision or direction from the Chief Executive. This may be by legislation and it may be in the endless compromises that are the life-blood of the relationship between these Branches of our government.

With regard to the question of the extent to which the public is affected by them, I think the answer is that the public is affected by them, and depending upon the Order, an individual may be significantly affected by an Order. In part, this is because of the definition of an Executive Order – general applicability and legal effect. It is difficult to think of an Executive Order that would not affect the public in some way.

With regard to the question of whether it is appropriate for Executive Orders to have had the significant policy implications that they have had, I think that in the circumstance where Congress has delegated by statute the authority or the responsibility to make a decision, I am not troubled if a President then utilizes that authority or carries out his responsibilities by an Executive Order, even if the ramifications are significant. And there are several reasons for a delegation to the President by Congress, e.g., sometimes Congress delegates to the President decisions that it cannot agree on, leaving it to the Executive to parse finely the needed compromises; and in some instances it is the sole responsibility of the Executive to implement decisions. I am also not troubled by the President issuing Executive Orders using authority granted to him by the Constitution. And generally, I am not troubled by hortatory Orders, although most of these should be Proclamations.

Executive Orders may implement only the degree of power that has been delegated to the President by the Constitution or by statute. The ultimate decision about how much authority to delegate, and to which official in the Executive Branch, remains with Congress. In most instances, Congress delegates power to the head of a department or agency, rather than to the President. No matter how much he may wish he could, the President cannot overturn that delegation of power. Accordingly, the most frequent use of Executive Orders is to make a public statement from the President to his agency heads as to the lines along which he wishes them to exercise their discretion - but only to the extent, if any, that Congress has granted agency heads discretion in carrying out what Congress has delegated to them.

Except for that small number of Executive Orders that implement authority Congress has delegated directly to the President (Executive Orders implementing the Superfund statute are a good example), Executive Orders have no greater legal effect or force than other, less formal means by which a President may communicate with his agency heads - i.e., a written Presidential Memorandum; a statement in a press conference; a telephone call from an assistant to the President. From a public policy perspective, Executive Orders have one salient advantage over these other, less formal and invisible means of communication; they are published in the Federal Register, so that both the Congress and the public can understand what the President has done and can hold him accountable for his actions.

The Committee also should understand the severe limitation that Executive Orders have from the point of view of the President and his senior staff. Again, with the exception of that small number of Executive Orders that implement statutory authority granted directly to the President, Executive Orders are administratively enforceable only against agency heads. Executive Orders usually do not create legal rights that can be enforced in court by a private party. Rather, the enforcement device is political. If an agency head fails to comply with an Executive Order, the lapse will have no effect whatsoever unless brought to the attention of the President and the White House staff. As with any other White House policy, if the President finds that an agency head has not followed his policy preferences, the President may ignore the matter or may use any of his tools to induce compliance, from calling the agency head on the carpet, to cutting the agency's budget or, in severe case, dismissing the offending official. There frequently would be a political price to pay for any of these actions, including the expression of Congressional displeasure.

The result of the anomalous legal status of Executive Orders is that they often have more apparent than real effect. Many Executive Orders are quietly abandoned or modified in practice, without a formal amendment or repeal of the published text. A President may issue an apparently sweeping Executive Order directing his agency heads to do something or take something into account as they exercise their discretion, only to find that these Orders are routinely ignored by the agencies, and the White House staff is often powerless to prevent their evasion.

What impact has the issuance of Executive Orders had on the lawmaking authority and responsibility of Congress? In some instances, I believe that some Executive Orders have resulted in actions that are taken by the Federal Government that would not have been taken by Congress acting alone. (In most of these instances, however, I think there is a significant segment of the Congress that nonetheless agrees with the presidential action.) I am not troubled by this as long as the authority to do what is done is sufficient. Whether it is the right thing to do is another question, but the question of whether doing something that a President is authorized to do is inappropriate simply because it is done by an Executive Order is not a difficult issue for me as long as the authority to take the action is sufficient. When the authority for the Executive is sufficient, the effects upon Congress' authorities and responsibilities remain, in the legal sense, unaffected.

In reality, what the Executive Order process can provide to a President is a combination of the power of taking initiative, combined with the bully pulpit. In cases of inactivity or deadlock, the President may issue an Executive Order to announce his policy preferences to Congress and the public and to instruct his agency heads that they should exercise their discretion, if Congress has given them any, to follow his policy to the extent they can. The President may or may not be able to make agency heads respond to his lead. For example, in the case of President Reagan, his Administration was able to induce compliance from most agencies with Executive Order No. 12291, requiring submission of proposed rules to the White House for pre-promulgation policy review. But despite their consistency with the President's overall policy goals, there was significantly less agency compliance with other Executive Orders.

As with other exercises of the Presidential power of initiative (such as statements at press conferences or calls from the Chief of Staff to an agency head), Congress may exercise effective oversight and lawmaking authority. For example, Congress may, and frequently has, attached appropriations riders to laws that prohibit affected agencies from spending any money whatsoever on implementing an Executive Order. In such cases, Congress has effectively removed all discretion from the agency, and there is nothing that its head can do to implement the Order, even if the political appointee wishes to follow the President's policy.

Accordingly, Executive Orders may be thought of as a particularly visible and transparent mechanism, among many similar mechanisms available to the President, by which he may announce a policy and attempt to rally public support behind it, in the hope that the policy will attract sufficient public support that by the time Congress exercises its power to review and modify the policy, the President's policy preference will have made sufficient headway that the status quo can never be re-instituted, and the ultimate policy outcome will be advanced somewhat along the lines the President prefers.

Again, from a purely legal standpoint, I think the issuance of Executive Orders has very little impact on the lawmaking authority and responsibility of Congress, especially when authority and responsibility mean the ability of Congress to act, not the likelihood that Congress will act in response to an Executive Order. On the other hand, I cannot recall an instance where Congress simply repealed an Executive Order outright. They may have changed how an Executive Order works, but I cannot recall that they have reversed one outright. I think that the reason Congress has not repealed many (if any) outright is because Congress is sufficiently divided on the substance of the Order to prevent it from taking action as a Congress.

If the President has the authority to take action, it may take a two-thirds vote in each House to overturn his action, or a constitutional amendment if authorized by the Constitution. But this has nothing to do with Executive Orders. The President is either authorized or he is not. Acting by Executive Order neither adds or detracts from the question of authority.

What should be the role of Congress in guarding its legislative prerogatives and maintaining the proper balance between the executive and legislative branches of government? Even as a response to a question, it is somewhat presumptuous of me to advise the Congress on what it should do in this regard. Nonetheless, here's what I recommend:

 

This concludes my written testimony. I will try to answer any questions that the Subcommittee may have.

1.

44 U.S.C. 1505(a)
2. Id.
3. 49 Stat. 500, as amended; 44 U.S.C. 301, et seq.
4. 44 U.S.C. 1505(a)
5. The process for issuing Executive Orders is different from the process that a Federal agency will follow in promulgating regulations. The latter are usually governed by the procedures of the Administrative Procedures Act of 1946, as amended.
6. Executive Orders 10914-11127
7. Executive Orders 11128-11451
8. Executive Orders 11452-11797
9. Executive Orders 11798-11966
10. Executive Orders 11967-12286
11. Executive Orders 12287-12667
12. Executive Orders 12668-12833
13. Executive Orders 12834-13140
14. 27 FR 5847.
15. 3 CFR, 1959-1963 Compilation.

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