Notice & Comment

By Quasi-Legislative Order: Busy Agencies, Feeble Execution

*This is the seventh 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.

Any book on the constitutional executive will contain more than a little Alexander Hamilton. It’s ironic: Hamilton’s famous argument for “energy in the executive,” so self-consciously counterintuitive in his own time, succeeded to the point of becoming cliché.

But at the end of Andrew Rudalevige’s particularly excellent new book on executive orders and bureaucratic management, we find some Hamiltonian wisdom that is far less famous yet well worth considering.

In 1798, nearly four years removed from government service, Hamilton exchanged letters with Rufus King on the government’s capacity to handle problems emanating from Europe. King, a former senator writing from London, warned that “France has calculated all her plans on our decisions,” and “she has believed that our Government” would “act with such timidity, and in so qualified a manner” as to enable America’s failure.

Hamilton replied on a more optimistic note, first considering Congress, and then turning to the Washington Administration: “Of the executive I need say little,” he wrote; “you know its excellent dispositions, its general character and the composition of its parts.” And he added, “[y]ou know also how widely different the business of Government is from the speculation of it, and the energy of the imagination, dealing in general propositions, from that of execution in detail.”

Rudalevige’s By Executive Order confirms both of Hamilton’s points: the gap between speculation and reality, and the gap between general propositions and specific executions.

The book’s illustration of the first point is straightforward. In a time when partisans too often oversimplify administration—some denouncing “the Deep State,” others denouncing presidential “politicization” of administration—we find in By Executive Order a much more complex and nuanced account of the actual work of modern presidents and the bureaucracies that shape and implement (or not) their policies. (Rudalevige was kind enough to discuss these themes with me a few months ago on a podcast.)

Yet the subtler and more significant lesson of Rudalevige’s book goes to Hamilton’s second point: there is a fundamental difference between the government’s own work of “dealing in general propositions” and “that of execution in detail.” And while one might assume that a book on executive orders is about execution in detail, it actually describes how the executive branch deals extensively in general propositions. And therein lies a great problem.

By Executive Order illuminates a policymaking process: an iterative, multipolar, and often nebulous process in which the “key question” (p. 36) for presidents is not simply what substantive policies to make, but rather how to “structure the policymaking process to receive sufficient information to protect their own substantive and political interests as they build an executive policy program.” In the end, most executive orders will be not commands from the White House to the agencies so much as the agencies’ own priorities, spoken back to themselves with the president’s signature (p. 203), after an iterative process of intra-administration processes, checks, and balances.

As Rudalevige notes, the modern history of executive orders is best understood as coinciding with not just the growth of government, but with the growth of administrative discretion delegated to the executive branch by Congress. “With the growth in the size and scope of government, and the concomitant expansion of both the executive branch and the White House staff, administrative tactics generally became more central to presidential leadership,” he writes (p. 53). “The number of executive orders grew dramatically as statutes delegated more authority to the president, and through him to the executive branch.” Hence FDR’s creation of the Bureau of the Budget, later the Office of Management and Budget, later OIRA and the growing bureaucracy needed simply to oversee the rest of the bureaucracy.

With discretion comes bureaucracy, and with bureaucracy comes delay. “We tend to think of EOs as mechanisms for rapid response,” Rudalevige observes (p. 140), “indeed as nearly immediate . . . . But in fact a lot of waiting lurks behind even headline-level policymaking.” Sometimes “delay can be purposeful,” but sometimes “it may simply result from the complications of managing multiple participants in a complicated policy process” (p. 143).

In the process of dispelling a myth that executive orders are swift or top-down, Rudalevige actually dispels another myth: that broad grants of legislative power empower execution. In fact, as Rudalevige illustrates, broad grants of power actually impede execution: such delegations force the executive to undertake a much more wide-ranging, laborious process of defining more precisely the policy in the first place, before actual execution can begin. And this process described in Rudalevige’s book is often simply the first step, to be followed by a rulemaking process, and perhaps still more processes, before the work of genuine execution can begin.

To be clear, there will virtually always be at least some policymaking discretion embedded in any legislative statute. “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications,” James Madison once explained. Administration itself is a crucial part of that liquidation process, boiling uncertainty down to certainty, in conjunction with the courts that eventually take the final step “to liquidate and fix their meaning and operation.”

But the harder that Congress works from the outset to narrow the field of discretion (and thus of uncertainty) in the statutes, the better that the President’s administration can actually administer those laws. Broader delegations produce slower administration and feebler administration; and from one presidency to the next they also produced unsteadier administration. And, as Hamilton noted, these are simply different ways to describe what is, in the end, “bad government.”

Many will read By Executive Order with a sense of relief, glad to know that the vast powers that Congress delegates to the executive branch are actually wielded by many people working to check and balance one another, not by a President supervising a nimble and responsive administration. And, to be sure, our system works best when the president’s administration is not staffed simply with “obsequious instruments of his pleasure.” But the more we need execution to look ever more like legislation, the more that we should rethink the delegations that necessitate all of the procedures, divisions, and counterweights that make the legislative process productively inconvenient. Again, Hamilton makes the point: “Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious.”

In short, I can scarcely imagine a more thorough account of how delegations deform administration than Rudalevige’s excellent book.

Nor can I imagine a better illustration of Hamilton’s distinction, in his letter to Rufus King, between “dealing in general propositions,” and “that of execution in detail.” We need administration to focus, as much as possible, on the latter. In our current legal environment, where Congress delegates broad powers and the rest of the system relies in turn on elected presidents to narrow the field of discretion, executive orders are a necessary and useful tool for democratically accountable policymaking. But that is just another way of saying that executive orders can help to make the best of a bad constitutional situation.

And this book illustrates just how bad the situation really is. From Rudalevige’s research we can learn much about execution, and even more about legislation.

Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.

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