Notice & Comment

Reconsidering Agencies as Active Participants in Theories of Political Control, by Jennifer L. Selin

*This is the ninth 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.

In By Executive Order, Rudalevige details a long-utilized but understudied coordinating process for the development of executive orders. These central clearance procedures help reduce uncertainty regarding the orders’ likely outcomes and the intentions and/or competence of the various administrative actors whom the orders will affect. Simply, central clearance provides presidents with a mechanism for learning about the political, policy, and administrative costs associated with unilateral action.

The book’s impressive examination of this process from the 1930s to today prompts scholars to question the common theoretical assumption that executive orders develop from the top of the administrative hierarchy. Executive orders can and do originate from anywhere in the executive branch. In fact, as Rudavelvige’s analysis convincingly illustrates, a majority of executive orders originate outside of the White House. Thus, executive orders, just like other presidential policy tools, are the product of negotiation and compromise.

While previous posts in this symposium have mentioned the important contributions of the book, two points are worth re-emphasizing here. First, Rudalevige pushes scholars to think about presidential policy development as a two-way street centered on interaction and negotiation. Executive orders are, by definition, directives to the president’s subordinates in the executive branch. As a result, not only do a variety of political and administrative factors shape agencies’ implementation of orders, but those same factors shape the language of the orders themselves. Because agencies are part of an information stream that helps the president and his political advisors adapt to uncertainty, agencies have much more political power in the drafting process than scholars tend to appreciate.

Second, and related, Rudalevige reminds us of the importance of considering not only the political events we observe, but the universe of outcomes that never come to fruition. An examination of the “orders that never were” helps us understand the nuance of presidential management and the extent to which unissued executive orders signal presidential powers or limitations. From a president’s perspective, an unissued executive order could be evidence of a well-run administration that successfully vets undesirable policy proposals. Or an unissued executive order could exemplify presidential failure to coordinate key bureaucratic actors. In arbitrating between these two competing but observationally equivalent stories, Rudalevige suggests that presidents do not always win when bargaining with their bureaucratic agents.

Rudalevige provides us with a theoretical framework to use when thinking about executive orders and executive policymaking from the president’s perspective. Yet consideration of the president’s program as a result of bargaining with the bureaucracy raises questions about agencies’ own internal management strategies. I found myself wondering throughout the book what we could learn if we viewed the same story from agencies’ perspectives.

As Rudalevige’s extensive archival research and interviews suggest, agencies draft executive order language, provide input on proposed orders, and negotiate with the Office of Management and Budget during the clearance process using a wide array of strategies. Sometimes their commentary is “policy-based” and sometimes it is “law-based” (pg. 63). Sometimes it comes in the form of formal letters and sometimes through informal phone calls. What explains these differences? How and when does an agency decide to bring something to the president’s attention?

Of course, the answers to these questions largely are beyond the parameters of the book. But they hint at extensive and promising avenues for future research. Presidents and agency leaders have experimented with different organizational means of limiting variance between presidential preferences and administrative outputs. These strategies include the use of political appointments, layers of hierarchy, and changes to agency work-flow processes. Exactly how do these things influence agency interactions with the president? Given prior research on internal agency operations, one would suspect that the composition of the organizational component in charge of policy development and/or political communication and its location within an agency’s hierarchy likely impacts negotiations over executive orders and other presidential directives.

And Rudalevige’s findings suggest that some agencies may be better at bargaining as a result. For example, executive orders promoted by big agencies with their own extensive internal management structures such as the Department of Defense, State, and Treasury are not only less likely to be centralized but also tend to be less prominent in the pool of unissued executive orders. It stands to reason that these agencies have developed distinct organizational competencies for the type of bargaining Rudalevige contemplates. Not only does this have implications for the direct influence of various agencies on unilateral action, but it likely affects the agencies’ bargaining capacity with Congress—the legislature also negotiates with agencies when drafting (statutory) directives. Yet, for the most part, we have woefully neglected exploration of this on a systematic level.

In sum, both directly and indirectly, Rudalevige’s research urges us to refine our theoretical accounts of presidential and congressional management of the bureaucracy. Such refinement should take seriously the bargaining power of agencies and the ways in which the bureaucracy itself strategies to influence the use of political principals’ tools of control. As one State Department official put it in 2007, “‘Policy is not what the president says. . . . Policy is what emerges from interagency meetings.’” (pg. 29)

Jennifer L. Selin is a Kinder Institute Assistant Professor of Constitutional Democracy in the University of Missouri’s Department of Political Science. Prior to joining academia, Professor Selin practiced administrative law and specialized in federal electricity market regulation and alternative energy development, licensing, and regulation.