Cooper, Phillip J. 2002. By Order of the President: The Use and Abuse of Executive Direct Action. Lawrence, Kansas: The University of Kansas Press.
Background:
Perhaps the most important development in recent American politics has been the increased use of what Cooper terms the “direct tools of presidential action.” Although some of these tools have been employed by presidents since George Washington, the substance, frequency, and importance of these tools has evolved considerably in the last 40 years. These tools include executive orders, presidential proclamations, presidential memoranda, signing statements, and national security directives.
According to Cooper, each of these tools is used, in varying degrees, to assert presidential prerogative, to circumvent the procedural impediments or complexities of government, and to take action in response to international and emergency pressures. This review will serve, largely, as a reduced outline of Cooper’s work. The several direct tools of presidential action will be described in accordance with the basic structure that the author provides. Each tool will be defined, followed by an accounting of how each tool is most frequently used, the contingent value of its use to the president, and the advantages and dangers associated with each.
Executive Orders:
Executive orders (EOs) are instructions that presidents issue to executive officers that demand that they “take an action, stop a certain type of activity, alter policy, change management practices, or accept a delegation of authority [for which they will] be responsible for the implementation of law.” Often these orders derive from outside the EOP and from the agencies themselves. If approved at each stage, the common procedural path for EOs starts with a proposed EO submitted to the director of OMB. From there, the attorney general reviews its legality, then to the Office of the Federal Register for form, and finally to the president to sign. Indeed, its use is often meant to avoid the impediments of seeing a bill through Congress or the procedural requirements of promulgating an agency rule. Although they are mostly required to be published in the Federal Register, many EOs are promulgated without publication or, even, notification to Congress or the public under the auspices of security classification. Other times, they are promulgated without publication or notice and simply slip under the radar. Presidents usually claim “implied statutory authority” or authority under Article 2 when issuing EOs. Many times, presidents have made questionable claims to statutory authority, using statutes that “seem to offer the president a great deal of latitude” and, prima facie, violate the “nondelegation doctrine.” However, nondelegation has not been invoked by the Supreme Court in some time, and has often been replaced with Court’s consideration of perceived congressional acquiescence or indifference to the substance of an EO (e.g., p. 23—25). This does not mean that presidents are “relieved of their constitutional obligation to respect properly enacted statutes,” and presidents have, in fact, lost significant cases (e.g., Youngstown Steel Co v. Sawyer). However, significant hurdles remain for EOs to be challenged in court.
Many EOs are used purely as tools of presidential politics such as generating favorable publicity, sending signals, and to circumvent Congress. EOs are also commonly used to deal with emergencies. But, even then, they can be used for political purposes. As Cooper documents, the U.S. was actually in a state of emergency from 1933 until 1976, in part, because a declaration of emergency can “assist an administration in accomplishing its own goals when Congress might not otherwise be supportive.” For instance, despite the oft-cited Youngstown case, Truman also issued orders “seizing towing operations in New York Harbor, as well as coal mines and railroads” (p. 42). As to the ability to circumvent procedural hurdles in the rulemaking process, “one of the reasons why rulemaking has come to be so cumbersome and time consuming is precisely because of the requirements that have been piled on top of the basic statutory process by EOs” (p. 59). Reagan often issued EOs with the intent of compelling agencies to consider the administration’s political priorities when promulgating rules, and further layered the process with internal oversight mechanisms within OIRA and OMB. Administrators can be put in awkward legal positions by these attempts at executive dominance in the policymaking process because EOs used for these purposes may intentionally contradict congressional mandates. Also, when newly elected presidents issue EOs to agencies, they can many times contradict existing EOs from previous administrations or exert executive powers that are constitutionally questionable (e.g., G.W. Bush’s moratorium on rulemaking).
The advantages of EOs to presidents are that they provide (1) quick, impacting ways to change policy, (2) specific guidelines to agencies that legislation does not address, and (3) low-visibility ways to take significant actions. The potential dangers, however, are many. “In general terms, they include creating or exacerbating interbranch and intergovernmental tensions, inviting external criticism of the White House, weakening cabinet department credibility and effectiveness, undermining the administrative law system, possibly exposing administrators and the government more broadly to liability, and being seen in certain instances as taking the easy way out.” The frequent claim of emergency to excuse the use EOs does much to undermine the credibility of the White House. Also, imposing new requirements on already overworked agencies is essentially equated with an unfunded mandate. Finally, the lack of transparency and questionable claims of authority, or even legality, involved in their issuance leads to conflict, constitutional challenges, and/or a significant loss of credibility.
Presidential Memoranda:
Confounding the complications presented by EOs is the recent rise of presidential memoranda that have been employed as an equivalent of an EO. Whether all EOs are issued according to the process above, most definitely are. Meanwhile, there is “no stated process for developing memoranda and no requirement that they be published in the Federal Register.” While memoranda can be used for symbolic or hortatory purposes, they have increasingly been used interchangeably with EOs. In addition to all the advantages they essentially share with EOs, the most important advantage they have over an EO is that they are more difficult to challenge because of their relative elusiveness from examination from outside pressure groups, media, Congress, or the courts. They are often used for short-term policy initiatives and specific action, while seldom claiming anything new as policy. Rather, the content of memoranda is usually directives that claim to build on existing policy and are directed only to agencies, unless the president wants them to be publicized. Therefore, “legal challenges are all but nonexistent.” Often, memoranda are used in conjunction with EOs to shift the nature of the authority that the president claims. This presents problems, however, as “policies are emerging as patchworks that can be difficult to understand or explain, even for those close to the process.” It may seem like a useful tool to deceive those outside the executive branch by essentially playing a shell game of “Where is the policy coming from?” But, it can often have the effect of confusing even those who are intended to implement the policy.
Presidential Proclamations:
A proclamation “states a condition, declares the law and requires obedience, recognizes an event, or triggers the implementation of a law (by recognizing that the circumstances in law have been realized).” The process for issuing proclamations, as with EOs, is covered by the Federal Register Act and they are published in the Federal Register. Proclamations are most frequently used as hortatory declarations for recognition of individuals or celebration. However, they are also used to “invoke particular statutory or constitutional powers” or as “policy pronouncements issued to those outside government that have the force of law.” According to Cooper, the commonly understood difference between EOs and proclamations is that proclamations are aimed at those outside of government, rather than directives to government officials. This, in effect, limits the president’s authority to issue them. The president cannot claim power through Article 2 for proclamations for this reason. However, while the same methods of judicial review used to assess EOs apply to proclamations, their use is usually upheld in court. This is because the president’s power to issue them is derived from specific authorization within a statute that the president is to proclaim a condition has been met in order that a particular aspect of the statute can be implemented. Presidents may find the same advantages in using proclamations as they do in using proclamations, when they are used for hortatory or celebratory purposes. Also, as mentioned, most proclamations survive legal challenges. However, there are notable instances in which they have not, and implementation of directives issued in proclamations has been found to be capricious and arbitrary. Finally, in perhaps its most infamous use, proclamations granting pardons have brought about conflict and, worse, have served to delegitimize the presidency.
National Security Directives:
National security directives (NSDs) are directives that “establish policy through the National Security Council (NSC) and that are intended to implement and coordinate military policy, foreign policy, or anything else that is defined within the rubric of national security.” NSDs carry the same magnitude of EOs, but they are not published and almost always classified. The power presidents claim in issuing the NSD is his position as Commander in Chief and the National Security Act of 1947. Cooper’s analysis of NSDs begins from the premise that presidents must have “secure means to design, implement, and coordinate foreign and military policy.” However, the increasing numbers of impacting policies directed by classified NSDs, shrouded in secrecy, have resulted in the unaccountable and dangerous misuse of the perceived power of the president, in respect to foreign and military affairs. It’s almost implausible the number of controversies and scandals that have occurred through the implementation of national security directives (e.g., Iran-Contra, U.S.-sponsored coups, countless incidents in the Vietnam War, and Bay of Pigs). However, these directives have had dangerous domestic impacts as well. The uses for NSDs vary from military, intelligence, and foreign policy management and coordination to setting policy toward other countries and coordinating economic development policy. NSDs are flexible instruments that usually provide more of a framework for action that allows for variability and provides a quick and covert method of dealing with new and evolving threats to national security. Also, “participation in development and implementation of NSDs can be limited to relatively small groups of people”, which provides for quick and coordinated action. However, this lack of transparency and “the danger of group think in a small, closed environment” has often led to teleological ethical considerations (i.e., ends justify means). This redoubles the inclination to limit transparency and increases the tendency toward covert action, when larger groups and cooler heads might have prevailed. When covert actions are revealed, they often have the effect of further delegitimizing the country. Most importantly, as the chair of the Iran-Contra Committee testified:
“The use of secret NSDs to create policy infringes on Congress’ constitutional prerogatives by inhibiting effective oversight and limiting Congress’ policymaking role. NSDs are revealed to Congress only under irregular, arbitrary, or even accidental, circumstances, if at all. Even the Intelligence Committees do not usually receive copies of NSDs.”
Presidential Signing Statements:
Presidential Signing Statements (PSSs) are “announcements made by the president… [which] identify provisions of a statue with which the president has concerns. They also provide the president’s interpretation of the language of the law, announce constitutional limits on the implementation of some of its provisions, or indicate directions to executive branch officials as to how to administer the new law in an acceptable manner.” They have recently been employed as mechanisms to (1) insert the presidency’s preferences within the process of judicial review under the awkward guise of legislative history, or (2) to subsume the constitutional responsibilities of the judicial branch prior to judicial review.
Since Reagan’s Attorney General, Edwin Meese III, reached “an agreement with West Publishing Company to include the [PSSs] in the U.S. Code Congressional and Administrative News legislative histories,” PSSs have been used as a way for presidents to have a “more active and continuing role in judicial interpretation of statutes.” Essentially, the strategy is that the signing statement will hopefully be considered part of the legislative history that a judge considers when deeming a law unconstitutional. They have also been used as a means to direct officials on how to implement legislation, but stepping outside the president’s constitutional responsibilities and infringing on the judiciary by deeming parts of legislation unconstitutional and, in essence, enacting a line-item veto. Again, however, this action should be qualified as unconstitutional, according to Clinton v. New York (1998). The logic of the Office of Legal Counsel for the last four presidents runs as follows: “The Constitution is the supreme law of the land. Therefore, the president is duty-bound not to enforce a statue that violates the Constitution.” So, whenever the president deems a piece of legislation unconstitutional, he can obstruct implementation without vetoing the legislation as a whole. This clearly violates separation of powers and Article 3’s notion that it is the judiciary’s domain to decide what is and what is not unconstitutional. The implications to public administrators are many. If they refuse to implement statutory mandates, their actions can be seen as arbitrary and capricious, in violation of APA.
Conclusion:
The question that should keep coming to mind as one reads Cooper is “From where does the power derive?” The use of each of these direct tools of the presidency often involves broad claims of constitutional or direct statutory authority that are questionable, at best. At worst, they are a blatant usurpation of power that, if left unchecked, teeters on the brink of tyranny and discredits the institutional foundations of each branch in different, but important, ways.
Cooper recommends steps that Congress can take to ensure that its power is not appropriated or undermined by the president, such as requiring publication and codification of any directive in a transparent and public manner, and to have more coordinated and systematic oversight of presidential action than it currently has. Cooper’s other suggestion is that the president view his power through a lens that is more amenable to constitutional law, respecting the institutions for their respective powers and the balance that it provides. However, given the current partisan divide that doesn’t seem to be dissipating, this may be an unrealistic prescription.
It seems Cooper’s resolve is to have a president use his first-mover advantages to spur Congress to action to establish clarity in the limits of the prerogatives of the executive branch, or restrain his or her self in respect to law. Or, the other option is to depend on Congress to overcome its own collective action problems to assert itself through clear and binding legislation and, even, constitutional amendment. But, he gives the power of the Supreme Court short shrift. This may be due to perceived inconsistencies in its approach to executive power that Cooper documents throughout the book. Nonetheless, because it is a matter of constitutional prerogative, the ultimate solution resides with the Court to assert itself in a consistent, clear, and tenable way. In the meantime, it is probably up to the public administrators to (in the most drastic cases) choose between uncertain legal and career standing, when implementing problematic presidential directives.
