Hearing of the
Subcommittee on Legislative and Budget Process
The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?
The Constitution vests the legislative power in Congress and the executive power in the President, but it nowhere defines those powers. To be sure, the Constitution enumerates the subjects to which the legislative power extends,"(1) but it does not offer a definition of what that power is, nor does it define "executive power." This was not inadvertent. The framers were practical statesmen who understood that each branch of government would be ambitious and seek to secure as much power, at the expense of the other branches, as possible. The framers also understood that any attempt to stop this by marking clear boundaries on the executive and legislative powers would be futile. Madison derisively referred to such formal demarcations as "parchment barriers." The genius of the Constitution's structure lies in the practical response it adopted. Instead of assuming that angels would govern, it structures the branches so that, as Madison put it, "ambition will be made to counteract ambition"; each branch, in short, would act as the guardian of its own constitutional role. In holding these hearings the committee is fulfilling the Constitution's vision of how the government would and should work.
The Constitution creates a federal government of limited and enumerated powers. Therefore, consideration of any federal action must begin with an inquiry into whether the action is validly authorized. When the President acts unilaterally, such as by issuing an executive order, his authority must derive from either the Constitution or a law, typically a statute."(2) If the President issues an executive order that is based entirely on authority that the Constitution's text grants exclusively to the President, that executive order, by definition, does not involve a deployment of a legislative power."(3) I will confine my comments to the two contexts that implicate directly Congress's legislative role: where the President's authority to issue an executive order is founded on statute alone, and where the order is based on a combination of constitutional and statutory authority.
The relationship between the executive and legislative powers within these contexts is not fixed and definite, but is better conceptualized as a spectrum. The extent of each is a function of several mutable factors: the specific statute at issue, the nature of Congress's underlying constitutional power, the nature of relevant constitutional powers vested in the President, and the specific facts surrounding the executive order."(4) Consequently, it is difficult to offer general prescriptions for safeguarding the legislative power against executive overreaching. Nevertheless, I believe that there is support for a number of observations:
I. As long as Congress legislates, its legislation will, unavoidably, vest the executive branch with discretion as to how to enforce Congress's laws.
II. As long as the executive branch holds executive discretion, it is generally desirable that this discretion be subject to some degree of presidential supervision and control.
III. Congress is amply equipped to protect its legislative role from presidential overreaching.
IV. Beyond Congress, there are significant, additional checks against presidential usurpation of the legislative role.
I.
Executive branch lawmaking, to refer back to the title of this hearing, is inevitable. Faithful execution of the laws demands it. In a recent article, two important presidential scholars have argued that the ability to act unilaterally is the defining feature of modern American presidency."(5)
Statutes are not self-enforcing. Every statute unavoidably conveys some discretion. When any officer charged with the execution of a law decides how to exercise that discretion, the officer engages in something that can well be called lawmaking. Imagine a specific and straightforward law, one that declares a speed limit of 55 mph on a given highway. An officer charged with enforcing that law will have to determine whether to pull over a car for going 56 mph. An officer who does will have to leave his patrol car to write out the ticket and may then miss a car going by at 85 mph. In a world where it is impossible to catch every offender, the executive will have to determine which offenders to ticket and which to let pass. The executive may well determine that it is most faithful to the legislature's purpose by adopting a policy that it will not pull over anyone who goes less than 60 mph. Has the executive made law? Certainly. Has the executive been irresponsible or unfaithful to the legislature? Certainly not.
Moreover, executive discretion flows from the durability or duration of statutes. Because statutes remain operative over time, they apply in the context of circumstances that will have changed in ways that are unforeseeable to even the most conscientious legislature. Applying a statute under significantly changed circumstances from those the enacting Congress faced necessarily involves executive judgment. Whatever course the executive chooses to take, including the choice to take no course of action, when confronted with changed circumstances can be termed executive lawmaking. Consider, for example, the government shutdown. The statute that required the cessation of government functions was the Anti-Deficiency Act."(6) The Congress that passed this ancient statute did not have in mind the circumstance of a complete lack of appropriations."(7) Yet Presidents have been duty bound to apply the Anti-Deficiency Act in that very unforeseen situation."(8)
The interplay of distinct statutes also occasions a great deal of executive lawmaking. Congress often passes inconsistent statutes. For example, a law may require a program to run at a specified level, but the appropriations made for the program may only permit it to run at 80% of the mandated level. The executive's determination of how to proceed involves what might be deemed lawmaking. Although such examples are common, Congress does not always enact language stating how to resolve plain and direct statutory conflicts.
Often, the interplay of statutes is not so readily apparent. Again, the government shutdown provides a useful example. The Food and Forage statute"(9) was enacted to ensure that military personnel who found themselves cut off from supplies could provide for themselves. It allows military personnel to secure food and necessary materiel. The Anti-Deficiency Act forbids incurring an obligation in advance of an appropriation. These statutes were enacted without apparent regard to one another, yet they come into tension during a lapse of appropriations. Resolution of that tension involves executive lawmaking.
It should not be surprising then that our history is full of examples of executive lawmaking, stretching continuously from George Washington through the present. Moreover, some of the most historically significant governmental laws have been issued by the President acting unilaterally. Some of these solitary acts deserve our praise as courageous, others merit approbation, the value of others is still debated. For example, President Washington issued the Neutrality Proclamation, declaring U.S. neutrality in the war between Britain and France and forbidding U.S. citizens from acting inconsistently with a state of neutrality."(10) Andrew Jackson effectively eliminated the Bank of the United States by ordering that the assets of the federal government be withdrawn. President Lincoln issued the Emancipation Proclamation freeing the slaves in the States of the Confederacy; Theodore Roosevelt withdrew public lands and set them aside to create a system of national parks; Franklin Roosevelt ordered the internment of Japanese Americans during World War II; President Truman desegrated the military and ordered the seizure of steel mills; and President Lyndon Johnson ordered the nation's first affirmative action program on the strength of the federal procurement statute.
II.
Given that lawmaking discretion is inevitable, it is proper and desirable that the discretion be exercised subject to the President's supervision, which is to say subject to executive orders. Unlike agencies, which tend to focus on a limited subset of federal laws and of policy concerns, the President enjoys a fairly panoramic view of both the executive branch and the United States Code. The President is thus uniquely situated to bring about enforcement actions that are consistent across the executive branch and to set rational enforcement priorities. When a decision will have important consequences for more than one agency or department, the President alone can call upon the legal and policy advice of all interested agencies and weigh that input without being distracted by concern over agency jurisdiction or "turf battles.""(11)
Most importantly, presidential supervision means presidential accountability. If Congress were to deprive the President supervisory control over the exercise of discretion by a federal agency, Congress and the public could not hold the President responsible for abuses of power. Moreover, the President by virtue of his high political office and of being elected, is responsive to the public in ways that no other executive branch official is. Thus, popular concern about regulation by "faceless bureaucrats" would be heightened were the President unable to control the lawmaking discretion vested in the executive branch.
III.
Recognizing that even broad executive discretion is inevitable and possibly beneficial does not undermine my basic point about the Committee's inquiry. It is legitimate, indeed important, for Congress to remain vigilant that necessary and proper executive discretion is not carried too far. I would like briefly to canvass some of the measures that Congress might consider to protect its legislative role.
1. Legislating more specifically. That it may be impossible to eliminate all discretion does not mean it will be impossible to constrict more narrowly the extent of discretion. It may be possible and even salutary to study options for reducing executive discretion,"(12) but ultimately this is a dead end. The President does not possess broad discretion because Congress is lazy or slothful. The President possesses broad discretion because it is necessary for any statutory regime to be effective. For example, federal criminal laws are phrased in broad, even capacious, terms. Making them more specific would limit the possibility of prosecutorial abuse and harassment, all the better from the standpoint of individual liberty. However, precisely phrased federal criminal laws allow dangerous and flexible criminal enterprises to change the form of their dealings in order to evade the formal categories. For example, the first federal criminal code included approximately twenty crimes, including the crime of maiming, which Congress defined very precisely to apply:
if any person ... shall unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person, with intention in so doing to maim or disfigure such person in any of the manners before mentioned ...."(13)
This statute is remarkably specific, but for that reason fails to reach such obvious maimings as a stab wound to the ear or a blow to the nose with a club. The founders themselves were familiar with this problem. In setting forth the permissible grounds for an impeachment, they realized that a precise list of crimes would inevitably exclude misconduct that is just as harmful to the republic as bribery and treason, but that do not satisfy the formally required elements of the crimes they might have listed. Favoring effectiveness over precision, the Constitution's drafters settled on the famously vague formulation, "high crimes and misdemeanors.""(14)
Federal law enforcement has been able to devastate the mafia and other criminal organizations precisely because it has at its disposal broad and vaguely worded statutes. Take away the flexibility and adaptability of federal law enforcement, and it cannot combat crime as effectively as it does.
Indeed, Congress's ability to accord lawmaking authority to the executive is generally viewed not as a derogation from its legislative power, but as one of the most important tools by which Congress can perform its legislative role. Again, history is instructive. To combat the Great Depression, Congress granted broad authority to the President to respond to economic conditions. When the Supreme Court struck down these delegations, its decisions were not viewed as promoting the power and authority of Congress. Its decisions were viewed instead as preventing Congress from enacting an effective remedy to a national crisis.
2. Legislating more frequently. Rather than trying to craft enduringly and unfailingly specific legislation, Congress should legislate more frequently. First, Congress must be vigilant in overseeing the rules that the executive branch promulgates. Congress should then repeal or amend executive branch lawmaking whenever it disapproves of the executive branch's rules. Second, Congress should be vigilant in overseeing its own statutes. Congress should seek to identify antiquated statutes, like the Anti-Deficiency Act and the Vacancies Act, before their application becomes problematic and it should keep abreast of how statutes it enacts come to interact with other statutory regimes. Where there is interplay, Congress may assert its legislative power to dictate the accommodation it prefers.
3. Oversight. Just as executive lawmaking occurs outside the framework of bicameralism and presentment, that is where Congress must look for methods to keep the executive in check. First and foremost is Congress's power to conduct oversight hearings. It would be risible to expect the President personally to participate in oversight hearings. Nevertheless, the President's executive orders on unclassified matters are publicly available. In addition, the President does not personally carry out his own executive orders. The agencies charged with doing so are themselves generally amenable to the oversight process. It is thus well within Congress's ability to inform itself as to how its statutes, and the discretion they confer, are being enforced and to discern whether there are any abuses.
Congress can supplement oversight hearings by requiring that agencies submit periodic reports describing the executive orders to which they are subject and conveying whatever other information Congress might find useful in performing its oversight function. It might, for example, call on the agency to discuss exactly how the executive order bears on or shapes the agency's enforcement of affected statutes, the order's impact on the allocation of agency resources, and alternative enforcement regimes that the order requires the agency to forgo.
Having armed itself with information, Congress may consider several types of responses. First, it may legislate to alter or supplant completely the directives of a given executive order. Second, either or both houses can pass a resolution calling upon the President to rescind or amend any executive order. A third, drastic measure is censure. If Congress believes that the President has overstepped the proper bounds of his executive role and usurped the legislative function, it may pass a resolution of censure. This is what Congress did in response to President Andrew Jackson's decision to withdraw federal assets from the Bank of the United States, with the intent and practical effect of closing the bank."(15)
At this point an institutional symmetry appears. Much as Congress is (rightly) concerned about protecting its legislative role from presidential overreaching, the executive periodically complains that mechanisms such as those set forth above thwart the constitutionally proper executive role. In each case, the point is balance.
4. Structural reform. Congress might consider extending the Administrative Procedure Act to cover executive orders. This, however, would raise serious constitutional questions. Rather than attempting such a general structural reform, Congress could impose tighter structural requirements as a precondition to issuing certain executive orders. Where the President's authority to issue an executive order is based exclusively on a statute, the statute might enumerate a list of findings that must be made before the power can be exercised and require that the basis for the findings be published in the Federal Register."(18)
IV.
Even though not subject to the APA, executive orders are subject to important internal and external (to the executive branch) checks. Externally, the courts will conduct an independent review of any order that affects an individual with standing to bring a lawsuit."(19) Even when review in an Article III court is not available, there are other vehicles that can serve to provide external review of the legal basis for the President's assertion of authority to issue an executive order. For many types of executive orders, the opinions of the Comptroller General stand as an independent source of legal analysis. The Congressional Research Service, and the House and Senate Legal Counsel are also capable of providing members of Congress with an independent assessment of presidential assertions of authority. Aside from legal analysis, interest groups closely watch executive orders and raise policy objections if they disagree on policy grounds with the approach of an executive order. Finally, in the ways discussed above, Congress remains actively vigilant against the President overstepping the bounds of his authority. Indeed, the current majority in Congress has been, by at least one measure, the most active guardian of its legislative role against presidential incursions. In the twenty-five years from January 1973 through the end of 1997, legislation to overturn an executive order was introduced on 37 occasions. Of these, 11 occurred in the last three years, 1995 - 1997."(20)
Before an executive order is submitted to the President for his signature, it is sent to the Office of Legal Counsel for approval of its form and legality."(21) The order proceeds to the President only if OLC agrees that the order is validly based on legal authority and a form memorandum stating the approval as to form and legality accompanies the order when it is presented to the President for his signature. Where the order presents a colorable issue as to the authority of the President, OLC will prepare a memorandum setting forth its analysis of the question. In the case of an order that does not involve classified material, the OLC analysis is generally made public. This allows Congress and the public to determine for themselves whether the order is validly based on legal authority, found either in the Constitution or in statutes. In addition, past opinions of OLC stand as guides, or precedent, by which to judge the reasoning that supports current executive orders. These internal procedures enable the external checks -- especially the vigilance of Congress, interest groups, and the courts -- to function more effectively.
2. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). The President may also derive authority from a duly ratified treaty.
3. Such an order may, however, have ramifications for legislative prerogatives. It may bring about circumstances that yield strong pressure on Congress to enact appropriations. Such an executive order can also serve an agenda-setting function, diverting attention from what may otherwise have been higher congressional priorities. Each of these occurs when the President orders the use of military force, short of war.
4. For the classic exposition of this view, see Youngstown Sheet & Tube, 343 U.S. at 634-55 (Jackson, J., concurring).
5. See Terry Moe & William Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. 132 (1999).
6. See 31 U.S.C. secs. 1341-1342.
7. See GAO Redbook.
8. For an attempt to construe the Anti-Deficiency Act in the context of a complete failure of appropriations, see 43 Op. Att'y Gen. 29 (1981).
9. 3 Stat. 567, 568 (March 2, 1861).
10. For example, privateers were not permitted to sail from ports of the United States. The proclamation nearly led to war with France. The Neutrality Proclamation also spawned the famous Pacificus-Helvidius debate over the extent of the President's constitutional authority to conduct foreign affairs. For an excellent discussion, see H. Jefferson Powell, The Founders and the President's Authority over Foreign Affairs 40 Wm. & Mary L. Rev. 1471 (1999).
11. An exception to this may arise when the disputing agencies include an independent agency. Here the President's institutional, or "turf," interest would yield an incentive to disfavor the independent agency.
12. For example, when Richard Nixon asserted and exercised broad authority, based on the Constitution and on statutes, to decline to expend appropriated funds, Congress responded to protect its appropriations power by enacting the Impoundment Control Act. See Pub. L. No. 93-344, 88 Stat. 297 (1974).
13. 1 Stat. 112, 115, 1st Cong., 2d Sess. (April 30, 1790).
14. See II Joseph Story, Commentaries on the Constitution, paras. 794-802 (1833).
15. From the perspective of protecting congressional power, this episode does not have an encouraging conclusion. Cowed by Jackson's continuing political popularity, Congress three years later rescinded the censure resolution. See Register of Debates, 24th Cong., 2d Sess. 379-418, 427-506 (1837); Senate Journal, 24th Cong., 2d Sess. 123-24 (April 15, 1834). In a particularly egregious case of repeated, dangerous, and contumacious usurpation of the legislative power, impeachment and removal would be available to protect the constitutional structure of government. As 210 years of constitutional practice show, this is merely a theoretical possibility.
17. The Supreme Court so held in Franklin v. Massachusetts, 505 U.S. 788 (1992). For this reason, it declined to interpret the term agency to include the President.
18. Where the President's power is established in the Constitution's text, for example the appointments power or the pardon power, it would raise serious constitutional questions for Congress to regulate the President's exercise of the power in this way. See, e.g., Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989).
19. Eighty-six executive orders have been subject to court challenge. Of these, the President's authority to issue the order has been upheld in seventy-two (approximately 84%). Moe & Howell, at 175.
20. Moe & Howell, at 166.
21. See 28 C.F.R. 0.25(b).
