A Norm Restored? OMB’s Review of Draft Executive Orders, by Christian I. Bale
One might picture the chief executive behind the Resolute desk, dictating policy to senior staff and sending the orders for implementation. Luckily for good government types, that is not the full picture. From John F. Kennedy until Barack Obama, the Office of Management and Budget has orchestrated an interagency review process—a process ignored by the Trump administration.
OMB’s Review of the Executive Order
Every president from Obama to Kennedy has employed Executive Order 11030, which outlines OMB’s role in the interagency review process. But the practice dates back nearly a century to Franklin Roosevelt’s administration. Under the Roosevelt and Truman administrations, the Bureau of the Budget (OMB’s predecessor) would review draft EOs and memoranda, send them to the Department of Justice for constitutional review, and then publish the resulting document in the Federal Register. Under the Kennedy EO, the procedure was expanded to include soliciting feedback from agencies across the federal government.
Today, the first step on the road to producing an EO is that somebody—a senior staffer in the West Wing, another White House official, or as often happens, an official from the agency itself—gets a bright idea. The sponsor will generally take the first cut at drafting the order (in OMB parlance, that person “has the pen”).
Though some EOs are headline grabbing policy directives and impact many agencies, others are routine and affect a single agency. For example, department-level agencies may have an “Order of Succession” EO that specifies what happens when a senior official leaves office. An organic statute may have outlined the order of succession of the three senior-most officials but left discretion to the agency to choose the next three officials. Of course, Order of Succession EOs become unnecessary from a practical standpoint if an administration simply installs acting officials to perform the duties of fired Senate-confirmed appointees.
Once the sponsor drafts the EO, the sponsor will then—at least in normal times—send the draft to OMB for review. Before circulating the draft order externally, OMB’s General Counsel’s Office might first distribute the draft to OMB’s own subject matter experts to iron out major concerns ahead of sharing the document more broadly. These experts, many of whom have served under five or more presidents, include Program Examiners (the staffers charged with developing and executing the president’s budget for a particular agency) and regulatory analysts (who work in the Office of Information and Regulatory Affairs). After OMB has garnered feedback from its own staff, it works with the sponsor to hash out any policy disagreements.
Critically, when addressing policy disputes, OMB General Counsel’s Office assumes the role of neutral arbiter. By acting as an even-handed umpire, OMB attempts to introduce a sense of fairness among stakeholders. In fact, though OMB General Counsel’s Office convenes the interagency review, it considers the sponsor to be the actual adjudicator of policy disagreements and gives considerable deference to the drafter. OMB, will, however, guide the sponsor through the review process and signal which comments are particularly significant and which can be ignored.
Interagency Review of the Executive Order
For less controversial orders or when time is of the essence, OMB circulates the draft to OMB staff, other White House staff, and agency officials through a single distribution. The agency itself designates the office that will review the draft EOs, though it is often the agency’s own general counsel’s office, or an office charged with regulatory review.
In response to a request for feedback on a draft EO, agencies will respond with both programmatic and legal edits. (Professor Tara Grove’s article sheds light on the deliberative process between OMB and the agencies, which I expand upon below.) An agency impacted by the EO might, for example, complain that it does not have sufficient budgetary resources to carry out the proposed policy, or, conversely, object to what it views as concession of policy turf to another agency. Agency officials also commonly point out if a statute bars the agency from carrying out the EO as currently drafted. Small details may receive significant attention. Agency legal counsel often comment on the precise wording of the EO and may get into “heated arguments over the use of a particular word” because the EO could profoundly impact the agency’s authority.
If an agency has a significant objection to the substance of a draft EO, OMB’s General Counsel’s Office will convene a meeting of senior policy officials from the disagreeing agencies to resolve the conflict. The relative political power of the policy officials can affect outcomes. For instance, a Deputy Secretary with close ties to the president may carry the day against a less influential counterpart at another agency. The president is unlikely to intervene in the process, but past presidents have occasionally weighed in to settle a dispute among agencies.
The more consequential the order, the more attention the draft receives from an agency. Based on feedback, OMB will redraft the directive and recirculate the draft for interagency review. OMB puts many EOs through at least three drafts and accompanying rounds of agency comments. OMB might also sit on a draft EO if it is politically sensitive or might be ill-received by the public or Congress due to current events in the news cycle.
Once OMB concludes the interagency review process, the next step is to send the draft EO to the DOJ’s Office of Legal Counsel for “form and legality” review. This supplements the interagency review by ensuring that the draft EO conforms to governing statutes and regulations, and most importantly, is constitutional. Though this technically occurs after OMB adjudicates interagency disagreements, in practice, OMB often informally “pings” DOJ to get a sense of the legal guardrails before the draft is fully baked.
Finally, the OMB Director sends the draft EO, the form and legality memo, and a memo from the OMB Director to the president providing a summary of the editing process to the White House Staff Secretary who then reviews and circulates the draft within the White House Office and to other senior Executive Office of the President officials. Generally speaking, there will not be significant—if any—edits from the West Wing because OMB has ensured that all interested parties have had a chance to weigh in on the draft document before sending to the president.
The Staff Secretary then provides those same documents to the president. If he signs the EO, the White House sends it to the Office of the Federal Register. Publication in the Federal Register serves to officially notify the public.
A Broken Norm under the Trump Administration
The Trump era operated differently. At the inception of the Trump administration, OMB career staff had visibility on a number of EOs suspected to originate from the desk of Stephen Miller. For at least some of these early EOs, no non-White House agencies were consulted in the review process. OMB alone was allowed to review the orders and was told that the drafts were “close-hold.”
The Trump administration flouted OMB review entirely when it issued EO 13769 (colloquially known as “the Muslim Ban”), restricting immigrants and refugees from seven majority Muslim countries. That order was drafted by officials within the White House Domestic Policy Council and apparently never made its way to OMB. The draft was sent to OLC and cleared by the Acting Assistant Attorney General.
After the first Muslim Ban EO was issued, OMB’s General Counsel’s Office no longer served as the focal point for interagency review. (At least some of the later EOs were run through the White House Counsel’s Office.) In fact, OMB career staff stopped seeing circulations of draft EOs and would only learn about the orders after their publication. OMB political appointees—themselves senior White House staff—were typically consulted by the West Wing prior to their promulgation. When the press asked DOJ whether OLC was performing form and legality review for all EOs, the DOJ responded, “no comment.”
Scholars have catalogued the ways in which the Trump administration broke “political norms” and conventions. A longstanding EO seems capable of becoming a norm when it has been followed—in some form—by every president of both political parties for nearly a century. And though an EO may bind agencies, there’s no remedy for a president who violates an EO that he has not yet repealed by a subsequent EO. Once a norm is broken, a president might prefer the status quo if it augments his power and influence.
The Virtues of OMB Review
Every president since George Washington has employed EOs, and their use is on the rise. Many complain that EOs allow a president to circumvent working with Congress and are, therefore, an undemocratic way of making policy. Even Biden, many of whose EOs have primarily focused on reversing executive action taken by Trump, has faced backlash from the press.
But EOs are not all bad. They work to signal the administration’s priorities to the public and help direct bureaucratic action to organize and respond to the major issues facing the country. In an ever increasingly partisan landscape, EOs are here to stay, and OMB review can temper the downsides of unilateral action.
First, there is a benefit to letting career civil servants review policy. Long-serving agency officials will have a better sense than White House appointees as to whether a policy will be effective, or even workable. After all, it is the agency itself and not the White House that often has to implement the presidential directive.
Second, the legal staff at an agency provides critical legal advice. Though OLC is staffed with the preeminent legal minds in the Executive Branch, they do not have the deep subject-matter expertise that agency lawyers possess. As a former DOJ lawyer once remarked to me, agency lawyers speak in their own legalese about their programs that no one else seems to understand.
And third, to the extent that critics complain that EOs circumvent Congress, OMB review helps democratize the process. Though the president appoints all principal Officers of the United States, the Senate must confirm them. Additionally, Congress influences agencies through oversight hearings, appropriations, threatening to withdraw delegated authority, and even impeachment.
In short, the People’s Branch has tools to exert administrative control over agencies. Though the president is the final decisionmaker, considering and incorporating the views of agency positions into a draft presidential action promotes democratic accountability.
A Return to Past Practice?
The Biden administration has repeatedly emphasized its commitment to restoration. So far, that has included efforts like endeavoring to reassume the U.S. government’s role on the world stage, reimplementing environmental regulations, and shifting to science-based policymaking. Though less visible, the norm of ensuring that government technocrats and legal experts have an opportunity to comment on draft administration policy is equally important. Thus, perhaps unsurprisingly, the Biden White House has restored the Kennedy EO, placing OMB’s General Counsel back in its century-old practice, ensuring that EOs and presidential memoranda receive adequate expert input and interagency dialogue.
Christian I. Bale is a former OMB career official who served in the Legislative Reference Division, the National Security Division, and the Office of General Counsel. He is the current Editor-in-Chief of the Duke Law Journal. In writing this essay, Christian spoke with a number of former senior officials who have served in OMB’s Office of General Counsel and is grateful for their assistance. Thank you to Jessica Richie and Sam Speers for helpful edits.