Notice & Comment

Pluralizing the Executive, by Noah A. Rosenblum

*This is the sixth 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.

Readers of Notice and Comment surely remember the classic Schoolhouse Rock clip about how a bill becomes a law.  In the fall of 2014, Saturday Night Live released an updated version of the bit.  In it, President Barack Obama waits for a bill at the top of the Capitol steps.  Once the bill arrives, however, instead of signing it, he shoves it back down the stairs.  “There’s actually an even easier way to get things done around here,” he explains.  Out walks a new piece of paper, singing and smoking a cigarette.  “I’m an executive order and I pretty much just happen.”

Presidential rhetoric echoes the Saturday Night Live skit.  Presidents and presidential hopefuls like to suggest that they can translate their vision directly into law though executive action.  And commentators sometimes seem to imagine this is how the presidency works.  The epitome of this fantastical personalized rule is the executive order, which presidential will is supposed to make “pretty much just happen.”  But, as Andrew Rudalevige’s excellent book establishes, that image is as far from reality as the old Schoolhouse Rock video.

The truth is that successful executive orders are not usually the product of top-down dictation.  Rather, according to Rudavelidge’s history, they emerge from a “narrow two-way street.”  To turn a policy idea into an executive order, the President, represented by her staff in the various White House offices and the Executive Office of the President, negotiates with a bevy of other government actors, especially the officers in the many line agencies.  Sometimes executive orders are driven primarily by the President’s staff.  But often they originate in the agencies themselves and embody agency priorities more even than the President’s.  Regardless of where orders start, they usually go through an elaborate interagency review process before reaching the President’s desk.  Those that sidestep this institutional development, like the first iteration of President Donald Trump’s Muslim travel ban, are exceptions that prove the rule, as they can turn out to be ineffectual, hard to implement, or legally infirm.

Rudalevige develops his account through an analysis of a large cache of historical executive orders.  His source base is a representative sample of over five-hundred signed and promulgated orders, along with over two-hundred un-promulgated draft orders, which he has unearthed in the archival files of the Office of Management and Budget.  He has carefully balanced and coded his data set, which allows him to run regressions and assess trend lines.  Rudalevige fills out his analysis of this aggregate data with illuminating case studies and capsule accounts, illustrating some of his key conclusions.

The whole makes for a compelling work of empirical political science.  Rudalevige models the presidency as a kind of firm.  With every executive order, the President is faced with a classic “make or buy” problem.  Either she can “make” policy herself, relying on her central staff.  Or she can “buy” the executive order from the agencies, relying on their substantive expertise.  Rudalevige imports ideas from information economics to motivate intuitions about when Presidents will make each choice.  The crux of the issue, he surmises, will be the transaction costs the President faces in the “policy market” for executive orders.  Where an executive order involves multiple agencies’ jurisdictions, reorganizes the government, or implements the President’s main policy priorities, it may be cheaper to “make” the order than “buy” it.  On the other hand, where an order is highly technical, involves a routine statutory delegation, or implicates agencies loyal to the President, it may be cheaper to “buy” than “make.”  Rudalevidge codes his sample for these and other factors, and then uses data and narrative accounts to check his hypotheses.

Rudalevige’s findings will be of interest to all scholars of government bureaucracy.  He concludes that only about 20% of executive orders are “unilaterally” driven by the President’s staff, and that, by contrast, over 40% of executive orders are largely formulated by line agencies, with little presidential involvement.  Agencies with a strong reputation for competence and expertise tend to drive more decentralized order formulation.  Meanwhile, significant executive orders, especially those used to preempt congressional action, are more frequently central-staff led (although these too often receive significant input from line agencies).  Rudalevige’s data suggests that the process of producing executive orders has remained relatively consistent across presidential administrations.  There is an increase in “presidentialism” over the course of the twentieth century, but it is slight.

Rudalevige’s emphasis on transaction costs allows for a subtle but powerful shift in our baseline understanding of the presidential office.  Folk theories of executive power have treated the President and the executive branch as unitary and interchangeable.  Scholars of bureaucracy have long known this was not true.  Rudalevige takes that insight seriously.  He builds his theory around the executive branch’s “incorrigibly plural” structure.  It is precisely because the executive branch is made up of more than just the President that the President faces transaction costs in the intra-executive-branch policy market.  Those transaction costs, Rudalevige shows, can help explain how executive orders are actually made.  In other words, it is not merely that the presidency is a “they not an it.”  Rather, a central attribute of the way the presidency operates flows from it being a “they not an it,” even when it comes to issuing executive orders, where presidential unilateralism is thought to be at its most pronounced.  Pluralism is a fact that matters.

This insight deserves greater reach across fields.  Rudalevige’s work draws attention to an emerging scholarly convergence, which we can only hope spreads further.  While By Executive Order is recognizably a piece of political science, it draws from and engages with scholarship from history, public administration, American Political Development, and public law, especially administrative and constitutional law.  In recent years, scholars in all these fields have trained their attention on internal agency operations, seeking to understand the law and policy that governs the state.  This represents a return to the early history of these disciplines, before they split off into various specializations.  Rudalevige’s book illustrates what is to be gained from picking that tradition back up.  (As it happens, the AALS Section on Administrative Law is about to begin a series of conversations in that same spirit; readers of Notice and Comment are warmly invited to register and join.)

Such trans-disciplinarity can have discipline-specific payoffs.  So, to offer a parochial example from my own scholarly world, Rudalevige’s book introduces a third normative valence of presidential administration to the two most frequently invoked.  Standard accounts of presidential management have followed the Progressive Era champions of executive governance by emphasizing the way it contributes to government efficiency and economy.  From Woodrow Wilson and Frank Goodnow to Elena Kagan, Terry Moe, and William Howell, champions of presidential administration have usually argued that it makes government less dysfunctional, better able to achieve its ends, and sometimes more cost-effective.

Rudalevige’s account complicates this picture.  Interagency review does seem to enhance government efficacy, as executive orders that are impracticable are likely to be revised or buried.  But the elaborate process of institutional review can slow order formulation.  Presidents have embraced it nevertheless, for a self-serving reason that legal scholars have mostly overlooked.  The coordinated review of executive orders protects the President.  Giving agencies a chance to weigh in on and even formulate orders makes it less likely that a President will accidentally enter into conflict with her agency staff, make an embarrassing decision, or take otherwise politically costly action. 

This “presidency protective” function of centralized review helps explain why presidents of different parties and leadership styles have all embraced it.  Rudalevige’s data suggests that presidents as varied as Lyndon Johnson, Dwight Eisenhower, and Ronald Reagan shared a similar approach to executive order formulation.  And he collects quotations showing that presidential advisors have been committed to the presidency-protective value of presidential administration across parties and decades.  Rudalevige seems to agree with Charles Dawes, the first director of the Bureau of the Budget, then the home of the President’s main staff, who saw protecting the presidency through information management as the Office of Management and Budget’s “founding purpose.”

Rudalevige’s emphasis on continuity is a useful corrective to the popular narrative that every change in presidential administration brings with it a radical break.  His account may mask some important secular shifts, though.  One is institutional.  As the Executive Office of the President grew in size over the course of the 20th century, offices that once operated directly under the President’s thumb developed their own institutional cultures and interests.  This formalization pushed presidents to look for new staff support in their effort to influence the bureaucracy.  So, where Franklin Roosevelt might rely on informal advisors and the Bureau of the Budget, Harry Truman and Eisenhower could rely on the broader staff in the Executive Office of the President, and Richard Nixon, suspicious of that Office’s increasing professionalism, sought to consolidate power directly in the White House Office.  Subsequent presidents created new offices to serve as their own alternative power centers.  Under Trump, it sometimes seemed the President’s staff had no institutional home or professional identity at all but was instead a collection of ad-hoc personal advisors, friends, and relatives.

Another transformation is more legal and intellectual.  Although all presidents have made use of staff to manage the federal bureaucracy, their aims and justifications for so doing were different.  The Founder’s President, though powerful, was not primarily a driver of policy, elected to realize a specific policy platform.  The Progressive Era presidents made policy-making into a main facet of presidentialism, but not all their successors embraced their vision, and in any case the law and organization of the executive branch took time to adapt to their innovation.  As Ash Ahmed, Lev Menand, and I argue, the law of executive governance continued to evolve into the late twentieth century, as presidents radically shifted the legal grounds for their domination of the bureaucracy while carrying on and remaking their predecessor’s institutional arrangements. The story, as ever, is of intercurrence more than supersession.

Rudavelige’s work implicitly raises some provocative questions about these institutional, intellectual, and legal changes.  Given the continuity in the process for formulating executive orders, perhaps these shifts matter less than legal and political historians have thought? At a minimum, Rudalevige’s work poses puzzles we will have to wrestle with.  What is the meaning of the transformation in our understanding of Article II if key underlying practices of presidential administration remained continuous? Is this a story of the resiliency of the deep state? The primacy of management contexts, and the attendant informational problems they raise, over ideological and legal contexts?

To make progress on these questions we would, of course, need to look beyond executive orders, to the full suite of tools Presidents have used to manage the government.  What we really need, I think, is a contextualized institutional history of the Office of Management and Budget, the heart of the presidential branch, which, I have argued, was envisioned as a tool of democratic presidential administration.  My understanding is that Rudalevige is working on that too—that this book, in fact, splintered off of that one.  What great news for the field.  With some more time, maybe Rudalevige will help answer the questions his own book has raised.

Noah A. Rosenblum is an assistant professor of law at New York University School of Law, where he was previously the Samuel I. Golieb Fellow in Legal History. Rosenblum works primarily in administrative law, constitutional law, and legal ethics.

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