Hearings of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
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
In your testimony you state that many executive orders often have more apparent than actual effect. Could you expand on this point and perhaps provide us with some real-life examples of what you mean?”
Answer: Because most executive orders are dependent upon the President for enforcement, if the President or his senior staff does not follow-up to make sure that they are complied with, and there is no adverse consequence for failing to abide by its terms, compliance with the executive order becomes a matter of discretion with the President’s appointees to whom it is directed. If they do not elect to follow the directions in the order, the order will not have the effect in practice that it may appear to from its language.
Failures to enforce executive orders may occur for many reasons some of which are fully understandable. But my point was that in practice an executive order may have a much different impact than most had hoped for, or feared. Sometimes, the issuance of an executive order is not the beginning of a new direction but simply begins the process by which interest groups seek to avoid its consequences.
Furthermore, knowing that there are usually no judicial remedies available for the failure to carry out executive orders and that compliance usually depends on an Administration’s subsequent enforcement, I’m sure that at least some features of some executive orders have been included knowing that they will not be enforceable. Agencies often take these factors into account in determining whether, or how strongly, to object to proposed orders during the OMB pre-issuance clearance process.
As far as examples of some executive orders that have had a more apparent than real effect, in many instances that list will be influenced by what one thinks of the apparent purpose of the executive order. For example, if I support a strong oversight of agency rulemaking by the President then I would include in the examples executive orders that deal with such oversight but that dilute the strength of that oversight. If I do not favor a strong oversight review, I am not likely to include it on the list of orders that are more apparent than real.
Nonetheless, I think that there are some executive orders that have not lived up to their promise. To avoid the appearance of criticizing others, I will briefly describe __ experiences that I was involved with or responsible for. The first example is Executive Order No. 12498 signed by President Reagan on January 4, 1985. The purposes of the Order included the following: “to create on an annual basis the Administration’s Regulatory Program, establish Administration regulatory priorities, increase the accountability of agency heads for the regulatory actions of their agencies, provide for Presidential oversight of the regulatory process, reduce the burdens of existing and future regulations, minimize duplication and conflict of regulations, and enhance public and Congressional understanding of the Administration’s regulatory objectives.” In retrospect, while these all were hoped for objectives, their breadth quickly attracted opposition from many whose interests were affected by agency rulemaking.
The essence of the Regulatory Program process established by the Order required agency heads to identify on an annual basis its regulatory priorities for the upcoming year and a list of its most significant regulatory actions and send these to the Director of OMB. The Director would then coordinate these proposals within the Executive Branch to ensure that they were consistent with one another and with Administration policy. The results would then be published each year with a listing of significant actions to be taken during the year.
One of the principal purposes of this process was to avoid the problem of agency rulemaking that was not consistent with Administration policy from being discovered too late in the process to do anything about it, something that too often occurred. With various exceptions, the consequences of failing to abide by this process was that rules that were significant but that had not been identified by the agency and reviewed by the Administration would be delayed until the next round unless to do so was not allowed under law.
The implementation of this process was time-consuming, often contentious with many from Congress and the interest groups concerned about what it would do to the regulatory world they were more comfortable with. A Regulatory Program was issued as required by the Order, but the energy and resolve from the Administration to continue the process waned and the process of developing subsequent Programs became increasingly non-controversial and of lesser value. Eventually, the Clinton Administration essentially rescinded it.
In my view, the results fell far short of the objectives of the Order. While there may have been many reasons for this including overly ambitious goals, I think that the primary reason was that the process required by the Order took too much time and energy away from the limited time that senior Administration officials had to deal with the many issues that they faced. Annual “trench warfare” with the agencies could not pass a cost-benefit test. Without that energy, the process turned into one that could produce a product only without contest.
A second example is Executive Order No. 12615 signed by President Reagan in 1988. The Order sought to increase the amount of “contracting out” studies by agencies of jobs that could be done by the private sector. During the previous years of the Reagan Administration, over 70,000 jobs had been studied to see if they could be done by the private sector at less cost. As a result of these studies, over $700 million was saved without a loss in services. The Administration was eager to increase the savings that could be achieved by conducting studies of whether to contract out the functions or not. The Order required agencies to identify the jobs that could be carried out by the private sector and to conduct studies on them. The likely savings would then be shared with the agencies in the process of formulating the agency’s budget.
The opposition from the Federal workforce and interest groups and Congress proved to be more costly than the benefits of the proven savings, and the process became basically inconsequential.
Today, the Federal agencies are still wrestling with the first step in this process, one that Congress wrought in the Federal Activities Inventory Reform (FAIR) Act. BNA describes the situation, in part, as follows: “Business groups strongly support the FAIR requirement for agencies to annually produce lists of activities that are potential candidates for contracting out to the private sector; they contend that the government should not deprive the private sector of the opportunity to do commercial-type work. Government employee unions, on the other hand, have taken a dim view of the law, since federal employees stand to lose their jobs if an activity is contracted out. Among federal agencies, only the Defense Department has made any real effort to identify and contract out commercial activities. DOD says it needs to do more contracting out in order to save billions of dollars, but efforts to contract out base support services have resulted in heated litigation.” (Daily Report for Executives, 9/30/99, page A-35.)
These are only two examples. There are certainly more, but which ones are included in a list will depend somewhat on what one thinks of the purposes of the Orders in the first place.
1. I believe that the Constitution vests each of the three Branches of the Federal Government with powers that are shared among them, and powers that are not shared (or at least not shared equally) among them. The proposition that “Congress has not done an effective job of protecting” its interests is too sweeping a statement for me to be able to agree with it. I am certain that in some specific areas I would agree that the present or a past Congress could have done a more effective job of protecting its interests than it has or did, but not in all areas, indeed not in many, would I agree that it could have done a more effective job in protecting its interests. This is particularly so since Congress was not designed to be as single-minded as was the Chief Executive and hence action by it is more difficult.
More emphasis on oversight even at the expense of passing additional legislation could enable a better understanding of, and control over, Executive actions, especially those pertaining to Executive Orders.
2. I agree that there is substantial “gray area”, i.e., uncertainty, among the constitutional authorities of the Branches and that it is too simplistic to say that Congress merely “makes the law” and is not involved in its “execution” and that the President “executes the law” and is not involved with the “making” of it. Both the President and Congress must be vigilant about its own authorities and those it shares in these “gray areas”, and must be willing to engage in the joint resolution of positions there.
Furthermore, there are “gray areas” between the Branches that are created by the laws enacted by Congress in addition to those “gray areas” created by the Constitution. Virtually every enactment of Congress requires interpretation by Presidents over time and by the officials of the Executive Branch that Presidents supervise. While some of this interpretation is unavoidable and hopefully non-controversial, too often the Executive is left to resolve what Congress could not or would not in obtaining the consensus necessary to enact legislation. The dynamics of legislative “gray areas” are similar to the constitutional ones, requiring vigilance by the Branches on one hand and an ability to resolve differences on the other.
3. I do not agree that “the power of presidents to ‘make law’ has grown in recent history and has become more significant.” While the realm of legislative “gray area” has increased, and the authority to Congress to delegate authority to the Executive Branch is a relatively new phenomenon, the breadth of congressional activity has also circumscribed presidential authority. I believe that presidential “power” has remained fairly constant over time, and that Congress has been more aggressive since the 1970s in exerting its constitutional authorities and in obliging the President and agency heads to take congressional priorities into account in the implementation of laws.
4. “Who should be making policy for this nation?” Within the Federal Government, in my view, both the Congress and the President should be making policy for this nation, and I believe that is what the Constitution provides. Each has powers, authorities and limitations, many of them shared with the other, and together policies are established. With regard to the role of Executive Orders, they are but one way, albeit an important way, for the President to make or advance policy. But only when the President’s authority is unilaterally assigned to him is Congress precluded from re-directing that policy.
5. The public does play a role with regard to Executive Orders. Members of the public often urge that Executive Orders be issued, or comment on those they know are being developed or comment on them once issued. The public does not hesitate to bring its concerns with Executive Orders to the attention of Congress and seek its intervention. They also make judgments about Presidents based in part on Executive Order activities.
The requirements with regard to the “transparency” of Executive Orders generally pertain to the period following the issuance of the Order. There are usually no requirements for a public notice and comment period as there is for rulemaking by Federal Departments and Agencies covered by the Administrative Procedures Act, as amended. But there are requirements pertaining to the publication and codification of presidential orders that meet the definition of Executive Orders in the Federal Records Act.
Because of the wide differences in scope and authority for Executive Orders, I do not believe that the benefits of a public notice and comment requirement for all Executive Orders would be worth the costs, measured in terms of the loss of efficiency, time and decisiveness of presidential action. As you know, the Administrative Procedures Act allows for judicial review of agency compliance with its public notice and comment requirements, both with regard to procedural matters and to ensure that there is a rational basis for the actions taken. A similar requirement for the issuance of Executive Orders would likely embroil Presidents in lengthy and stultifying litigation and raise significant constitutional concerns as well. In adopting the APA in 1946, Congress did not extend its procedural obligations to the president due in part to such constitutional concerns.
Furthermore, Executive Orders are but one of many avenues by which Presidents make policy decisions and issue directions to agency heads. The Executive Order process already is the most public and transparent of these decision-making processes. If Congress were to impose formal procedural requirements on this channel, the Executive Branch could respond by shifting decision making to a channel, e.g., phone calls from the Chief of Staff to agency heads, that are far less visible to the public and Congress. Thus, more formal procedures for Executive Orders may in practice prove to be counter-productive.
The obligations of the two branches with respect to transparency of Executive Orders should be determined in my view essentially as it is today: by determining whether it would be better to do so than not to. If disclosing the drafts of orders before they are issued would be more undesirable than the effects of Congress’ anger at not being informed, then disclosure will likely not take place, otherwise, there is likely to be some congressional involvement. Again, given the wide scope and differing authorities for Executive Orders, I think this is about the best formula to apply to the transparency issue.
6. I do not believe that if Congress passes legislation after the issuance of an Executive Order to sanction it, that doing so would be likely to either enhance or erode the legislative prerogatives of the Congress. I think that Congress’ legislative prerogatives are likely to remain what they have always been regardless of what the President would do in an Executive Order. However, I do believe that on important Executive Orders that it would be very desirable for Congress to review them and to enact them if it agrees with them or to modify or rescind them if that is what it believes should be done. This is what has happened in the past in an ad hoc or non-systematic basis. It would be desirable because Executive Orders usually can be changed at any time or rescinded without notice. They also may not be adequately or uniformly carried out by those to whom requirements are directed. Presidents usually cannot rescind legislation so it is likely to be more permanent. Furthermore, because it would be enacted by Congress it is more likely to be taken seriously. Legislation also usually includes some form of enforcement action.
