Hearings of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
Douglas Cox
Principal Deputy Assistant Attorney General, Office of Legal Counsel, DoJ (1988-1993)
Partner; Gibson, Dunn & Crutcher LLP
1. In your testimony, you mention the broad delegation of authority granted to the President by the Congress in the area of national security. Do you see any difference in the latitude that should be afforded a President for executive orders relating to national security as compared with other types of policymaking?
The President's constitutional powers in the national security area are very great. See, e.g., Article II, Section 2 of the Constitution; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936); The Federalist No. 64 (John Jay) (Jacob E. Cooke ed., 1961). Thus, executive orders relating to national security should be considered by Congress in light of the President's unique constitutional role in national security matters, and in foreign affairs more generally. It is perhaps less a question of Congress affording the President greater latitude in these settings, than the recognition of the breadth of the President's constitutional powers.
2. In your testimony, you discuss the "line between executing and legislating." Could you tell us your view of where that line is drawn?
This is one of the most profound and complex questions in the structural analysis of the Constitution, and I have no definitive, universally applicable guidance to offer.
Most observers would agree that certain functions fall clearly on the legislative side of the line -- such as appropriating funds -- while other functions, such as receiving ambassadors, are clearly executive. In between the extremes there is a gray area where it is difficult to place the line with precision. As Justice Brandeis famously observed in his dissent in Myers v. United States, 272 U.S. 52, 291 (1926), "The separation of the powers of government did not make each branch completely autonomous. It left each, in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial." Thus, for example, the President does participate in the legislative process in several ways, most obviously through vetoing or signing a bill into law. See also Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569, 570-71 (1953) ("It is fruitless, therefore, to try to draw any sharp and logical line between legislative and executive functions."), quoted in Bowsher v. Synar, 478 U.S. 714, 749 n.13 (1986) (Stevens, J., concurring); Morrison v. Olson, 487 U.S. 654, 725 (1988) (Scalia, J., dissenting) ("It has often been observed, correctly in my view, that the line between 'purely executive' functions and 'quasi-legislative' or 'quasi-judicial' functions is not a clear one or even a rational one."). I note also that former Senate Legal Counsel Thomas B. Griffith recently testified before the House Judiciary Committee's Subcommittee on Commercial and Administrative Law that "[t]here is an uncertain boundary between legislative and executive power in the area of executive orders." Griffith Testimony, October 28, 1999, at 2.
The difficulty in drawing the line between executing and legislating does not mean that there is no such line: rather, it means that the line cannot always be defined clearly or in the abstract. The lack of an absolute and readily ascertainable line between the legislative and executive functions should not be viewed as a flaw in the constitutional design. Rather, the Founders anticipated that both the executive branch and the legislative branch may seek to invade the powers of the other branch, and the resulting struggle between the branches could be used, through the separation of powers, to guarantee liberty. See, e.g., The Federalist No. 51 at 349 (James Madison) (Jacob E. Cooke ed., 1961) ("[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. . . . Ambition must be made to counteract ambition."); see also INS v. Chadha, 462 U.S. 919, 951 (1983) ("The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.").
3. You discuss the option for Congress to require the President, when invoking statutory authority to issue an executive order, to submit his proposal to Congress for review. Do you think it is likely that any President would agree to this type of change in current practice? How would you structure such a change in the process?
Presidents are likely to resist any attempts to limit their powers. As noted above, that resistance was anticipated by the Framers and built into the constitutional plan. Nonetheless, a President could be led to agree to such a change, either in the interests of good governance, or as part of some larger political compromise with Congress.
There are many ways to structure such a change. In particular, Congress has had ample experience with "report and wait" provisions and could draw upon whichever version has worked best.
4. In a recent article for the Journal of Law, Economics and Organization, Terry Moe and William Howell argue that: "[E]ssentially . . . the constitutional and statutory powers of presidents are fundamentally ambiguous, and that this sets the stage for a relentless (and usually moderate and incremental) brand of presidential imperialism that Congress and the courts cannot be counted on to stop -- in part because their incentives don't prompt them to want to, and in part because they both suffer from distinctive institutional weaknesses. . . [Congress] has also had a very difficult time responding when presidents have gone off on their own, and it has not done an effective job of protecting its own institutional interests." (Page 33)
Do you share the view that "Congress has not done an effective job of protecting" its interests? Do you have any thoughts on what Congress could/should be doing better in this regard?
In the context of executive orders specifically, Congress has not done an effective job of protecting its interests. There are many reasons for that, including the increased scope of the duties assigned by Congress to the executive branch, which inevitably reduces congressional oversight over any particular program. Congress has many mechanisms to protect its institutional interests, some of which were mentioned in my prepared testimony. Those mechanisms include increased oversight; enacting narrower, more specific legislation; structural reforms such as "report and wait" provisions for executive orders based on statutes; and the usual tools of political persuasion.
5. Scholars Moe and Howell argue in their article for the Journal of Law, Economics and Organization that it is wrong to say that the Congress makes the law and the President executes them -- as if to imply that the President is an agent of the Congress. Instead, they argue that the President is "an independent authority under the Constitution, and thus has an independent legal basis for taking actions that may not be simple reflections of congressional will." (Page 4). Could you discuss your view of the "gray area" that exists between the realms of lawmaking and law-executing?
A summary of my views on the gray area between legislating and executing is set forth above in my response to question 2. More specifically, I agree that the President is an independent authority under the Constitution, and thus has powers and duties that are independent of Congress and, indeed, may be exercised in the face of congressional opposition. Perhaps the most common and most obvious example of that power to override the will of Congress is the use of the veto power to reject a bill passed by both Houses. At the same time, the Constitution clearly requires that Congress enact the laws -- and thus set the general policies that govern the Nation. Both Congress and the President have great constitutional power, and it is important that both Congress and the President exercise their powers vigorously and properly.
6. Some scholars argue that the fact of presidents acting unilaterally to "make law" has been reality throughout the history of our country, but that the power of presidents in this regard has grown in recent history and has become more significant. What factors do you believe account for this trend? Do you see this trend as a positive or negative development from the perspective of the institutional prerogatives of the Congress, or just a neutral fact of modern life?
Although I am not a political scientist, I believe the trend has accelerated as the federal government has grown bigger and become more intrusive. As Congress has multiplied the number of federal programs to be executed, opportunities to "make law" through policy preferences in the execution of the laws have also multiplied. Congress may have further accelerated the trend, by writing overly-broad laws and relying on the President or the courts to fill in the details. This trend is a negative development for the institutional prerogatives of Congress.
7. This entire debate and the tension between the President and the Congress with regard to executive orders seems to boil down to several basic questions. One of those is the threshold issue: who should be making policy for the nation? What is your view?
Congress should be making policy for the Nation within its broad constitutional sphere, including the power of the purse. There are other areas -- primarily involving the conduct of military and foreign affairs -- in which the President is given greater (though not unlimited) authority to make policy. That grant of power is not inadvertent: the Framers plainly intended that the President be chiefly responsible for such matters, and that intent is reflected in the constitutional text. But the grant of legislative power to Congress is equally intentional and equally clear.
8. What role should the public play in this tension between the President and the Congress? Is the system set up well enough to ensure that the people have enough information about executive orders and their impact to make their preferences known? What is the obligation, in your view, of the two branches with respect to transparency of executive orders and their impact?
The public, in a sense, is the ultimate arbiter in the tension between the President and Congress, because that tension is often resolved on a case-by-case basis through political means. At the same time, as the federal government becomes bigger and plays a larger role in the lives of private individuals, there is often insufficient information for individuals to make informed judgments about various policy choices or presidential actions. That is not a failure of the system per se, because clearly both Congress and the President have available mechanisms to provide that information to the public. It is, perhaps, more a failure that arises from the sheer volume of government activity: private individuals, with private concerns, simply cannot be expected to focus on the intricacies of every federal program. Reducing the role of the federal government would help to correct that failure.
The President has an obligation to be candid about executive orders and their impact. The failure to be candid imperils good government and leads to increased cynicism by the public. Congress has its role to play, in policing executive orders and explaining them to the public, and in defending its own legislative powers; but the President, as the author of executive orders, is primarily responsible for their presentation to the public.
9. What is your view of the practice of Congress passing legislation after the fact to sanction an executive order that has already been implemented? Do you believe this enhances or erodes the legislative prerogatives of the Congress?
As a general matter, I believe this practice preserves the role of Congress in the constitutional system. First, once Congress passes the legislation, the President will be bound by the terms of the legislation. Even if the statutory terms do not themselves significantly alter the executive order, the fact that the executive order is now embodied in legislation will limit the President's power to alter the executive order or to repeal the executive order thereafter. Second, Congress will only pass such legislation when it agrees with the President's executive order, and thus subsequent legislation is an appropriate way for Congress to place its policy and enforcement preferences in the law. Third, history has shown that in some instances executive orders have been ineffective until backed by the judgment of Congress, thus underscoring the role of Congress in the proper governance of the Nation. I do not think, however, that Congress can assume that if it adopts a practice of passing such approving legislation that its failure to do so in a particular case will be taken by the courts or by the public as undermining the legitimacy of an otherwise lawful executive order.
