*This is the fourth 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.
Now-Justice Elena Kagan’s influential article Presidential Administration celebrates its twentieth anniversary this year. Drawing on her experience working in the Clinton White House, Kagan explored in the pages of the Harvard Law Review how the president can direct the administrative state through three main tools: (1) centralized regulatory review; (2) presidential directives; and (3) presidential appropriation or “public assertion of ownership of agency action.”
Earlier this month here on the Notice and Comment blog, we published a symposium on Michael Livermore and Richard Revesz‘s new book Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health and the future of Kagan’s first tool, centralized regulatory review. Now, thanks to Bridget Dooling’s leadership, we are hosting a symposium on Andrew Rudalevige‘s new book By Executive Order, which as the title suggests, explores Kagan’s second tool of presidential administration.
By Executive Order is an engaging read and a timely contribution to the current debates regarding the future of presidential administration. In this book, Rudalevige reports the findings and insights from his review of, among other things, a random sample of 544 executive orders (of a total of the nearly 5,850 executive orders) issued from 1937 through 2004 (pp. 77-79). Rudalevige’s review of the history of executive orders is comprehensive and sheds so much light on the process of drafting executive orders. It also tells a more complicated story about presidential administration, one that has implications for administrative law and perhaps legal interpretation as well.
Returning to Kagan’s Presidential Administration, the Gray Center for the Study of the Administrative State recently held a terrific conference on the article and its application in the current era of political polarization (conference papers and video here). One recurring theme in some of the Gray Center conference papers and conversations was that Kagan’s article helped legitimize and advance a unitary executive theory of presidential administration. No doubt in part because of the narrator’s personal experience in the Clinton administration, Kagan’s Presidential Administration seems to cast the president as the prime and predominant mover. Take, for instance, how she describes the creation of executive orders (and other presidential directives) (p. 2290):
The claim of directive authority Clinton made in his executive order manifested itself most concretely and importantly in the frequent issuance of formal and published memoranda to executive branch agency heads instructing them to take specified action within the scope of the discretionary power delegated to them by Congress. These directives, issued prior to OMB review (in the case of rules) or independent of this review (in the case of other administrative action, not subject to the OMB process), enabled Clinton and his White House staff to instigate, rather than merely check, administrative action. The memoranda became, ever increasingly over the course of eight years, Clinton’s primary means, self-consciously undertaken, both of setting an administrative agenda that reflected and advanced his policy and political preferences and of ensuring the execution of this program.
By Kagan’s account, President Clinton (and his White House staff) would get in front of agency regulators to shape the agenda; these presidential directives “constituted a central part of his governing strategy; stated more precisely, directives to agency heads were a critical means of spurring administrative initiatives, and these initiatives were an important aspect of his tenure in office” (pp. 2296-2297). Under this account, it is not hard to see why some scholars would claim that Kagan contributed to the further rise of a unitary executive theory.
But Rudalevige’s qualitative and quantitative assessment of the use of executive orders over decades tells a different story—one where the White House and the federal agencies are partners in shaping the regulatory agenda. Here’s a nice summary of his key findings (pp. 8-9):
The empirical evidence presented in subsequent chapters suggests . . . that [executive orders], even those that originate from the White House, are subject to extensive review by and negotiation with the wider executive branch; that around six of every ten executive orders issued by the president are crafted preponderantly by departments and agencies instead of by centralized staff; and that a surprising number of proposed [executive orders], including some dear to the president, are never issued at all. The bureaucracy provides resources for unilateralism, and also shapes and bounds its use.
Later in the book, Rudalevige reports that “a strong plurality [of executive orders]—some 44-49 percent—are crafted nearly entirely by agencies outside of the Executive Office of the President” (p. 203). The creation of an executive order is generally a complicated and involved process. In Rudalevige’s sample, the time ranged from 1 to 1,646 days, with a mean of 76.4 days and a median of 33 days (p.144 tbl. 6.1). These numbers do not include the separate 237 unissued orders that Rudalevige uncovered as part of his OMB archival research (p. 168). On that front, it is fascinating to discover that the plurality (37.1%) of those executive orders were not issued because of “bureaucratic dissent” (p. 178).
As a political scientist, Rudalevige’s focus is on bureaucratic and presidential behavior, and as such the book contributes so much to current debates in the field of administrative law about presidential administration. But his findings potentially also have implications for legal interpretation. Indeed, they add to Tara Leigh Grove‘s important article Presidential Laws and the Missing Interpretive Theory, which was published last year in the University of Pennsylvania Law Review. I reviewed Grove’s article over at Jotwell, so I won’t repeat my summary here. But Grove interviewed numerous White House officials from the Trump, Obama, Bush 43, and Bush 41 administrations to better understand how presidential directives are drafted. In other words, her qualitative work seems to pick up where Rudalevige’s archival records end. Not surprisingly, she reports a similar story about the process of creating executive orders (and other presidential directives). It’s a process in which federal agencies are heavily involved as a general matter, in addition to staffers within the White House, Office of Management and Budget, and the Justice Department’s Office of Legal Counsel.
One aspect she seems to focus on more than Rudalevige is the stage at which the president gets involved (as opposed to the president’s staff). She concludes based on her interviews that “direct presidential involvement is the exception rather than the rule. Agency officials debate most directives among themselves—with the oversight of OMB—and the President does not get involved until a final draft is ready for him to sign” (p. 903). Grove relies heavily on this finding that the president generally only reviews the final draft (and is not involved in the heavy drafting and negotiations that precede that final draft) to argue as a matter of interpretive theory that “courts should hew closely to the text of a [presidential] directive, even when the text may not fit what the court believes to have been the President’s primary goal” and that “courts should not credit a memo from a White House official ‘clarifying’ a presidential directive after the fact” (p. 882).
I’d be so curious to hear Rudalevige’s take on how the process of executive-order drafting should affect legal interpretation. Both Rudalevige’s and Grove’s accounts of how executive orders are formulated suggest that the president is not a unilateral actor, but that this is a pluralistic process with many stakeholders involved, including the federal agencies that will be directed to implement the executive orders often being the primary drafters of those presidential directives. One could imagine a case to be made for a more purposivist theory of interpretation, in light of all of the actors involved in the drafting process. On the other hand, Grove makes a powerful case for textualism. Unlike in the legislative context, the drafting history for executive orders is not made public. Courts generally only have the text of the presidential directive (and, as Kate Shaw has explored, sometimes the president’s public statements on the directive). And more fundamentally, the sole person who formally issues the directive (the president) is generally not involved in those prior efforts; the president, per Grove’s account, often only reads and approves the final version.
To be sure, I don’t mean to suggest that Rudalevige should have explored the implications of his findings for interpretive theory in By Executive Order. That was not his focus, understandably, and the book already covers so much ground. But I look forward to seeing how legal scholars interact with this important book—not just on how the book’s findings affect debates about presidential administration but also on how they may affect legal interpretation debates when it comes to executive orders (and other presidential directives).
Christopher J. Walker is the John W. Bricker Professor of Law at The Ohio State University Moritz College of Law.