*This is the second post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here.
Andrew Rudalevige’s By Executive Order: Bureaucratic Management and the Limits of Presidential Power is an important contribution to our understanding of modern policymaking. In particular, the book’s third chapter is a must-read for students of administrative law. In it, Rudalevige lifts the curtain on the intra-branch dynamics that lead to an executive order (EO) making it to the president’s desk—or not. More concretely, he describes an OMB-administered “central clearance” process to manage the development of EOs, involving push and pull from across the executive branch. Here, Rudalevige’s recounting ranks along with papers by Eloise Pasachoff (on presidential purse strings) and Cass Sunstein (on White House regulatory review), which have done the most to further my own understanding of how presidential administration works as an everyday matter.
Of course, By Executive Order is not merely descriptive. Rudalevige’s thesis is that presidents face “collective action problems” that belie simplistic conceptions of a unitary executive. His “key point is that presidents do incur transaction costs as they engage the process of issuing directives that match their political, administrative, and substantive preferences.” In acting through executive order, therefore, “presidents face a management challenge linked to the broader challenge of administering” the “incorrigibly plural” executive branch.
To make his case, Rudalevige marshals empirical evidence from a massive dataset of executive action, including the eye-opening statistic that “a strong plurality” of executive orders (“some 44 – 49 percent”) are “crafted nearly entirely by agencies outside the Executive Office of the President.” His takeaway is that “management matters.” Presidents are more apt to succeed in effectuating their preferred policies to the extent they reduce the “transaction costs” inherent to earning bureaucratic buy-in.
My only criticism is minor. In this blogger’s opinion, Rudalevige could’ve better engaged Congress’s role (or lack thereof) in presidential administration. To establish that administrative agencies serve “multiple principals,” he cites scholarship regarding how “the legislative arena [was] central” decades ago. But then Rudalevige drops the matter, which, I think, leaves an analytical gap. Fifty years ago, congressional committees vied with the president’s political appointees for managerial primacy over regulatory agencies; today, by contrast, Congress is a nonfactor in administrative policymaking. To be sure, Rudalevige may be forgiven for lending short thrift to the legislature in a book about executive orders. Still, Congress’s decline in this capacity surely speaks to the principal-agent dynamics faced by the executive branch bureaucracy, about which Rudalevige otherwise provides so much insight.
Again, my criticism is minor. I learned a lot from this book, and I recommend it without reservation.
By Executive Order explains in depth what happens before an executive order is issued. As Rudalevige notes in the book’s final chapter, “we don’t know” what happens next. That is, we don’t know whether these EOs are implemented in accordance with presidential expectations. He suggests that this open question merits further attention. I agree.
Along these lines, I’ll devote the rest of this post to discussing the troubling prospect that the difficulty of implementing EOs—and of presidential administration, more broadly—depends too much on the president’s political orientation. In the second chapter, Rudalevige hints at this possibility:
Agencies . . . have their own long-standing internal identities, grounded in their statutory missions, their functional tasks, and the ethos of the profession(s) from which their staff are primarily drawn. . . . [Th]ese structural factors have their own impact on agency policy preferences across administrations, and thus on any given president’s attitude toward that agency.
Historically, as Rudalevige notes, “we can think of clashes between liberal agencies and conservative presidents.” Today, in our present period of hyperpolarized politics, it’s fair to question whether these clashes have escalated unduly.
The Trump years were so rife with controversy that it’s easy to lose track of how many norms were smashed—and by whom. At crucial executive branch agencies, political appointees faced “open resistance” from the civil service in implementing relatively straight-forward “conservative” policies. Employees at both the Labor Department and Environmental Protection Agency actually lobbied against the president’s nominations for Secretary and Administrator, respectively. To my knowledge, there’s no precedent for this behavior, which was largely celebrated in the media.
Perhaps this “open resistance” was a one-time thing. Maybe it’s all attributable to Trump, and only Trump. But I fear that proverbial dams have been breached, such that this sort of politics-based pushback is the new norm. In terms employed by Rudalevige, I worry that the “transaction costs” of “bargaining with the bureaucracy” have become substantially higher for Republican presidents. We’ll find out one way or another the next time there’s a party changeover in the White House.
William Yeatman is a research fellow at the Cato Institute in Washington, D.C.