Hearing of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
Chairman, Subcommittee on Legislative and Budget Process
THE SUBCOMMITTEE WILL COME TO ORDER. WELCOME TO AN IMPORTANT ORIGINAL JURISDICTION HEARING OF THE SUBCOMMITTEE ON LEGISLATIVE AND BUDGET PROCESS. OUR SUBCOMMITTEE'S JURISDICTION, WHICH IS MOST OFTEN ASSOCIATED WITH TOPICS RELATED TO THE BUDGET PROCESS, ALSO INCLUDES RESPONSIBILITY FOR REVIEWING MATTERS OF CONCERN ABOUT THE RELATIONSHIP BETWEEN THE LEGISLATIVE AND EXECUTIVE BRANCHES.
IN MY RELATIVELY SHORT TENURE ON THIS COMMITTEE, I RECALL THAT MY PREDECESSOR IN THIS POSITION – THE DISTINGUISHED FORMER MEMBER FROM SOUTH CAROLINA, BUTLER DERRICK -- USED THE JURISDICTION OF OUR SUBCOMMITTEE TO CONSIDER THE IMPORTANT ISSUE OF THE POCKET VETO.
IN THAT TRADITION, WE ARE HERE TODAY TO CONSIDER THE SUBJECT OF EXECUTIVE ORDERS AND THE MANNER IN WHICH THEY IMPACT ON THE LEGISLATIVE PROCESS.
EXECUTIVE ORDERS ARE AT THEIR SIMPLEST MEANT TO BE INSTRUCTIONS BY THE PRESIDENT TO HIS SUBORDINATES. IN THEIR MOST BENIGN FORM, THEY ARE MANAGEMENT TOOLS, MEANS BY WHICH A CHIEF EXECUTIVE CAN ESTABLISH CONFORMITY AND CONSISTENCY ACROSS THE MANY FAR-FLUNG ELEMENTS OF HIS ADMINISTRATION.
YET THINGS HAVE RARELY BEEN THAT SIMPLE IN THE REALM OF FEDERAL GOVERNANCE. SINCE THE FIRST EXECUTIVE ORDER WAS ISSUED IN 1789 BY PRESIDENT GEORGE WASHINGTON, THERE HAVE BEEN OCCASIONS WHERE ORDERS ISSUED BY THE PRESIDENT HAVE ENGENDERED PUBLIC DEBATE AND CONTROVERSY, SOMETIMES LEADING TO CONGRESSIONAL OR JUDICIAL REACTION. WE HAVE SEEN THIS TREND INCREASE IN RECENT DECADES, AS THE SCOPE AND REACH OF THE FEDERAL GOVERNMENT HAS BROADENED - INCREASING THE PROBABILITY THAT POLICIES IMPLEMENTED ACROSS THE ENTIRE EXECUTIVE BRANCH END UP IMPACTING UPON THE LIVES OF THE CITIZENRY. SOME HAVE TERMED THE ACTIVE USE OF EXECUTIVE ORDERS “EXECUTIVE LAWMAKING.”
IT ALSO APPEARS TO ME THAT WE HAVE ENCOUNTERED SIGNIFICANT CREATIVITY AND INGENUITY ON THE PART OF PRESIDENTS TO USE EXECUTIVE ORDERS TO ADVANCE THEIR AGENDAS WHEN THE LEGISLATIVE PROCESS HAS PROVEN UNWILLING OR UNABLE TO YIELD THE DESIRED RESULTS. MEMBERS MAY RECALL THAT, AS RONALD REAGAN WAS PREPARING TO TAKE OFFICE AS PRESIDENT IN 1981, THE HERITAGE FOUNDATION PUBLISHED A BOOK ENTITLED MANDATE FOR LEADERSHIP, WHICH INCLUDED A LIST OF PROPOSALS TO IMPLEMENT MORE CONSERVATIVE POLICIES THROUGH EXECUTIVE ORDER. THAT LIST COMPRISED 22 AREAS OF POLICY, COVERING A BROAD RANGE OF ISSUES AND CONTROVERSIES. ON THE FLIP SIDE OF THE IDEOLOGICAL SPECTRUM, WE CAN NOTE THAT IT WAS A SENIOR ADVISER TO PRESIDENT CLINTON WHO SUMMED UP THE TREMENDOUS POWER OF THE PRESIDENT TO MAKE POLICY VIA EXECUTIVE ORDER WHEN HE SAID "STROKE OF THE PEN, LAW OF THE LAND. KIND OF COOL."
ADDITIONALLY, A BY-PRODUCT OF MODERN TECHNOLOGY APPEARS TO HAVE BEEN GREATER PUBLIC AWARENESS OF AND INTEREST IN THE UNILATERAL ACTIONS TAKEN BY THE EXECUTIVE. TODAY WE HAVE CABLE TELEVISION, TALK RADIO, AND THE INTERNET AS MEANS TO PROVIDE UNPRECEDENTED ACCESS TO A WEALTH OF INFORMATION FOR THE AVERAGE CITIZEN WITH AN INTEREST. I HAVE FOUND IN RECENT YEARS THAT MORE AND MORE OF THE PEOPLE I REPRESENT IN SOUTHWEST FLORIDA ARE CONTACTING ME TO DISCUSS CONCERNS WITH EXECUTIVE ORDERS.
WHEN YOU CONSIDER THE TOPIC OF EXECUTIVE ORDERS THERE ARE ALMOST AS MANY SUBJECT AREAS POSSIBLE UNDER THIS HEADING AS THERE ARE POLICIES OF THE FEDERAL GOVERNMENT. EXECUTIVE ORDERS HAVE TOUCHED UPON A BROAD RANGE OF ISSUE AREAS, AND I KNOW THAT WE WILL GET INTO SOME OF THOSE SPECIFIC CASES AS WE PROCEED TODAY. I SHOULD POINT OUT THAT THERE IS A WHOLE CATEGORY OF EXECUTIVE ORDERS RELATING TO IMPLEMENTING POLICIES FOR OUR NATIONAL SECURITY. TODAY THESE ARE KNOWN AS PRESIDENTIAL DECISION DIRECTIVES – OR P-D-D'S – AND THEY ARE MOSTLY CLASSIFIED DUE TO THEIR SENSITIVE CONTENT. I WISH TO ENSURE MY COLLEAGUES THAT, AS CHAIRMAN OF THE INTELLIGENCE COMMITTEE, I KNOW THAT CONGRESSIONAL OVERSIGHT IN THIS AREA IS VIGOROUS AND THOROUGH.
WE HAVE CHOSEN FOR OUR STARTING POINT IN TODAY'S HEARING THE BROADER VIEW: WE ARE LOOKING AT THE PROCESS OF EXECUTIVE ORDERS – WHERE DO THEY COME FROM AND UNDER WHAT AUTHORITY ARE THEY ISSUED? WHAT ARE THE PROCEDURES UNDERTAKEN BY THE VARIOUS ELEMENTS OF THE EXECUTIVE BRANCH WITH RESPONSIBILITY FOR EXECUTIVE ORDERS? WHAT HAVE THE TRENDS BEEN OVER RECENT HISTORY WITH RESPECT TO EXECUTIVE ORDERS? TO WHAT EXTENT DOES THE PUBLIC NEED TO KNOW OR EVEN CARE ABOUT EXECUTIVE ORDERS? WHAT IS THE PROPER ROLE OF THE CONGRESS IN GUARDING ITS LEGISLATIVE PREROGATIVES? AND, HOW WELL HAS CONGRESS BEEN DOING IN CONDUCTING OVERSIGHT IN THIS AREA?
THESE ARE SOME OF THE QUESTIONS THAT WE HAVE DIRECTED TO OUR WITNESSES TODAY. I AM GRATEFUL FOR THEIR PARTICIPATION.
WE'LL START OFF WITH A PANEL OF EXPERTS – FIRST WE'LL HEAR FROM DOUGLAS COX, WHO IS CURRENTLY A PARTNER AT THE LAW FIRM GIBSON, DUNN AND CRUTCHER AND FORMERLY WAS PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL IN THE OFFICE OF LEGAL COUNSEL AT DOJ UNDER PRESIDENT BUSH. JOINING HIM ON THIS PANEL IS NEIL KINKOPF, WHO UNTIL 1997 SERVED AS SPECIAL ASSISTANT IN THE OFFICE OF LEGAL COUNSEL AT DOJ AND CURRENTLY TEACHES LAW AT GEORGIA STATE UNIVERSITY. WE ALSO HAVE ROBERT BEDELL, WHOSE CAREER AT OMB INCLUDED SERVING AS ADMINISTRATOR OF THE OFFICE OF FEDERAL PROCUREMENT POLICY, DEPUTY AND ACTING ADMINISTRATOR OF THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS, AND DEPUTY AND ACTING GENERAL COUNSEL OF THE OMB. BOB'S TENURE SPANNED 15 YEARS AND FOUR PRESIDENTS AND TODAY HE IS THE PRESIDENT OF THE RPB GOVERNMENT AFFAIRS COMPANY. LASTLY ON THIS PANEL WE WILL HEAR FROM TOM SARGENTICH, CURRENTLY PROFESSOR OF CONSTITUTIONAL AND ADMINISTRATIVE LAW AT THE WASHINGTON COLLEGE OF LAW AT AMERICAN UNIVERSITY. TOM FORMERLY SERVED AS A SENIOR ATTORNEY ADVISOR IN THE OFFICE OF LEGAL COUNSEL AT DOJ UNDER PRESIDENT'S CARTER AND REAGAN.
WE WILL THEN HEAR FROM WILLIAM OLSON WHO HAS JUST COMPLETED A STUDY FOR CATO ON THE ISSUE OF EXECUTIVE ORDERS. AND WE'LL CONCLUDE THE HEARING WITH A PRESENTATION BY RAYMOND MOSLEY, THE DIRECTOR OF THE OFFICE OF THE FEDERAL REGISTER AT THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION.
I WOULD LIKE TO NOTE THAT WE HAD EXTENDED TO THE CLINTON ADMINISTRATION, THROUGH OUR MINORITY, THE OPPORTUNITY TO PARTICIPATE IN TODAY'S HEARING. OUR STAFF WAS TOLD THIS OFFER WAS DECLINED, WHICH IS CERTAINLY THEIR RIGHT. PERHAPS AS THIS PROJECT OF REVIEW PROCEEDS, THEY WILL WISH TO BECOME INVOLVED IN SHARING THEIR THOUGHTS ON SOME OF THESE IMPORTANT ISSUES.
BEFORE I TURN TO OUR WITNESSES, I ALSO WANT TO ADVISE MEMBERS THAT THIS TOPIC IS ONE OF INTEREST TO MANY OF OUR HOUSE COLLEAGUES. IN FACT, I UNDERSTAND THE HOUSE JUDICIARY COMMITTEE'S SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW HAS SCHEDULED A HEARING ON EXECUTIVE ORDERS FOR TOMORROW. THEY PLAN TO CONSIDER TWO LEGISLATIVE PROPOSALS THAT HAVE BEEN INTRODUCED ON THIS SUBJECT.'
AND WITH THAT, I YIELD TO MR. FROST.
