It Takes a Team to Raise an Executive Order, by Boris Bershteyn
*This is the tenth 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.
Executive orders are a paradox. As a literary genre, they leave much to be desired. (Have you tried reading one? Did you get all the way through—the epilogue of boilerplate disclaimers and all? I didn’t think so.) Yet, in many cases, they serve a communication function, signaling to the public the president’s policy priorities. In truth, many of these documents did not have to be executive orders at all; something similar might well have been accomplished through an informal announcement, a speech, or a cabinet meeting. To be sure, some orders (and I trust many readers of this blog have a sentimental favorite) are lasting and important—canonical even. (A confession: I once spoke at a conference observing a twentieth birthday of one such executive order. Yes, there are conferences to mark such jubilees.) But in the sea of well over 14,000 executive orders issued since the Washington administration, those are exceptions.
Even more kudos, then, to Andrew Rudalevige for drawing much insight from a focused study of executive orders on the realities of government administration. He persuasively argues that the assumption of a unitary executive obscures much complexity—as the twists and turns of executive order preparation sharply illustrate. It turns out that formulating executive orders is a matter of many drafts and comments, of reconciling conflicting perspectives—not of immaculately conceived edicts emanating from the Oval Office. This means that “management matters,” concludes Rudalevige. Successful presidents do not wage war on the executive branch they supervise, but rather draw strength from the bureaucracy’s knowledge and skills—even when the voices from the agencies are less than harmonious.
Although Rudalevige’s account of executive order formulation spans decades, it could hardly be more timely. The decline in legislative activity has pushed a generation of frustrated presidents across the ideological spectrum to address policy areas in most need of reform—including climate and immigration—through executive action. Meanwhile, the Trump Administration exposed the nation to the spectacle of a president at odds with agency expertise, civil service, and the very executive branch he is charged with managing. Against this background, Rudalevige’s scholarly account—rich with theory, data, and pungent historical anecdote—does not disappoint. It should be on the reading list of all who serve in the White House or in the Office of Management and Budget.
Among Rudalevige’s particular contributions is his nuanced and empathetic portrait of the agency officials—sometimes political appointees, but often civil servants—who refine (and, at times, mercilessly critique) draft executive orders during the interagency “clearance” process en route to the president’s desk—or, with some regularity, to the dustbin. Often ignored by historians (or, worse yet, caricatured as a menacing layer of resistance to presidential leadership), these earnest reviewers are, in truth, the minds that help turn executive orders from mere words into meaningful policy change. Regrettably, we appreciate their value only when—due to expediency, suspicion, or simple hubris—the White House fails to consult them meaningfully. It can then turn out that the president’s order suffered from intractable legal flaws or proved impossible (or at least chaotic) to implement. Rudalevige’s book gives due credit to the folks doing their level best to prevent such fiascos.
Another confession: For a time, I served as an impresario of the executive order “clearance” process at OMB—and my feelings about it were then of a distinctly love-hate variety. Imagine drafting (on a deadline and often in the dead of night) what appeared to be a cogent, straightforward, even articulate legal document—seemingly fit for a president to sign. Then off it goes for “clearance” into the vastness of the federal bureaucracy for a few days—and back come dozens of different versions from various government agencies, famous and obscure, with extensive (and often irreconcilable!) comments and edits. (If memory serves, different subdivisions of the State Department often insisted on submitting separate—and not infrequently inconsistent—comments.) The temptation to dismiss these as so much nitpicking, pedantry, and provincialism was almost irresistible. But once we got beyond the overwhelming nature of the task and started focusing on each comment in turn, nearly every one delivered an insight and prompted a helpful change (or at least merited consideration and a response). And while resolving the many disputes among the commenters had all the romance of a trip to the orthodontist, we nearly always had to admit that the final product grew much improved. (True, too, of my experience with orthodontics.)
It is a cliché that Washington readers start a new book by looking for their name in the index. To test the thoroughness of Rudalevige’s work, I searched the index for another name—McGavock Reed. And there it was. Mac, as he was universally known, probably contributed to more executive orders than any other government employee during his long tenure as an attorney at the OMB. Indeed, I’ve often heard other long-serving officials refer to the interagency clearance process for executive orders simply as the “Mac Reed process.” A gentle giant, Mac schooled many an eager political appointee—your blogger included—in the arts of giving respectful consideration to agency input.
A less-than-careful reader might walk away from Rudalevige’s book with the impression that the process of drafting and reviewing executive orders is a frequent proxy battle for agency turf wars and other warring agency interests. That is not quite my experience. For one, there is the difficulty of specifying what it means for a particular comment to be advancing an agency’s interest—rather than simply the public interest. (Is receiving additional duties under an executive order in an agency’s interest, because its jurisdiction expands, or is receiving those duties antithetical to the agency’s interest, because it taps scant agency resources? I find it hard to know.) More fundamentally, I found agency comments on executive orders to be directed to matters of legality, administrability, and accountability—and very rarely the agency’s own bureaucratic parochialism. To be sure, agencies bring different perspectives and specializations: Where agency commenters stand on disputed questions turns out to have something to do with where they “sit”. But that is the very pluralism that renders the “clearance” process valuable—even necessary. The cacophonous executive branch family commenting on executive orders is, in my experience, less a team of rivals than, well, simply a good team.
Boris Bershteyn is a partner in the litigation and antitrust practices of Skadden Arps Slate Meagher & Flom LLP. In the Obama Administration, he served as General Counsel (and before that Deputy General Counsel) of the Office of Management and Budget, as Acting Administrator of the Office of Information and Regulatory Affairs, and as Special Assistant to the President and Associate White House Counsel. While at Yale Law School, he was an Articles Editor for the Journal on Regulation.