Notice & Comment

Data As Antidote to Excessive Rhetoric

*This is the eleventh 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.

Complaining about the government is a perennial American pastime, but no one sensible thinks our federal government is functioning optimally.  Figuring out why that is, however, requires more than clever sound bites.  It takes real, in-depth inquiry into how the government actually works.

In this vein, Andrew Rudalevige’s By Executive Order is a powerful piece of scholarship at least in part for contradicting with painstaking thoroughness one of the more excessive rhetorical tropes of our time, that recent American presidents are or are becoming authoritarian dictators.  It also reminds us that, rhetoric notwithstanding, governing cannot be accomplished successfully without the input of a lot of people.  Why anyone would expect otherwise is a mystery.

There can be no doubt that, over the last several decades, federal governmental power has shifted significantly to the executive branch.  Congress has stepped away from its traditional role of crafting legislation, partly through gridlock but also through its preference for delegating all manner of programmatic details and policymaking discretion to executive branch agencies.  At least for a while, the courts stepped away from their traditional role of policing the excesses of the executive branch through aggressive applications of justiciability limitations and judicial deference to agency legal interpretations.  (The courts seem to have become more assertive over the past several years, but perhaps not yet enough to reverse their earlier, more restrained posture.)  As a result of both trends, the executive branch has been emboldened to fill the void and push the interpretive envelope.  And, as presidents often have been wont to do throughout American history, recent presidents have used whatever tools were available to them to direct the exercise of executive power to accomplish their policy objectives — including issuing executive orders. 

Rudalevige demonstrates that executive orders are by no means a recent phenomenon, unless one is willing to consider several decades ago as recent.  Perhaps executive orders issued by recent presidents seem more consequential than in the past because the other branches have given the executive branch more room to maneuver.  Just as likely, the combination of growing political polarization and contemporary media culture have resulted in an amping up of the language used to describe presidential actions, irrespective of the underlying governmental reality.  Certainly, as Rudalevige notes, the political rhetoric that presidents and their aides use in describing executive orders gives the impression of executive orders as the product of presidential whim and command.  “Stroke of the pen—law of the land. Kind of cool.”  “Congress wouldn’t act, so … I did it on my own.”  (Chapter 1.)  Regardless, the response of many scholars and commentators to executive orders has been to decry the descent down the slippery slope toward authoritarianism — most notably when the order in question is one with which they disagree, though sometimes even when they are more sympathetic with the policies being advanced.

By Executive Order demonstrates quite effectively, however, the fallacy of the describing recent presidents as trending toward authoritarianism.  From Rudalevige’s work, it is apparent that executive orders typically emerge from an extensive process of bureaucratic consideration and collaborative decisionmaking.  (Chapter 3.)  Some executive orders originate with the White House; others begin with suggestions from Cabinet departments and other agencies.  Executive orders go through an extensive process of vetting and review coordinated by the Office of Management and Budget with input from the Office of Legal Counsel and relevant administrative agencies, with an eye toward evaluating both the legality and the practicality of each proposal.  Some executive orders are developed in mere days, but more evolve over many weeks or months.  At least in part due to this process, some proposed executive orders are never issued. 

No one should be surprised to learn that many of the ideas for executive orders originate with policy experts, both within the Executive Office of the President and elsewhere in the executive branch. Presidents may have their own policy ideas here and there, but presidents also surround themselves with policy experts for a reason. Correspondingly, no one should be surprised to learn that executive orders are extensively reviewed by executive branch officials before they are signed. Rudalevige focuses on the process before an executive order is issued and leaves for another day what happens after issuance.  But executive orders tend to be brief.  They outline policy priorities, but the real devil will be in the details of implementation.  Moreover, although executive orders themselves typically are thought to be nonjusticiable, executive branch actions taken pursuant thereto often do face judicial review. Presidents (and their administrations) would be fools not to think through the legal and practical implications of an executive order’s terms before it is signed and adjust the scope or the details of the order accordingly.

Even authoritarian dictators can have bureaucrats at their service.  But the process Rudalevige describes seems difficult to square with the characterization of recent presidents as such.  According to Rudalevige’s analysis, more than 50% of proposed executive orders are never issued either because OMB blocks it (e.g., because the president lacks the legal authority to pursue the proposal) or because of opposition from elsewhere in the executive branch.  (Chapter 7.)  Contrary to claims of authoritarianism, some might see that outcome as evidence that the career officials in the executive branch seek to undermine presidential policy prerogatives. Yet, the story Rudalevige tells reflects an orientation that is more pragmatic than ideological, focusing more on legality and workability than straight-up objections to the pursuit of particular policies.  As Rudalevige notes, “speed kills,” and executive orders are more likely to actually “work” if the executive branch takes its time in developing them.  (Chapter 6.) 

None of this is to suggest that contemporary bureaucratic governance through executive orders is ideal.  Although some people may see bureaucratic governance as a feature, many others view it with concern.  Like it or not, however, bureaucratic governance is what we have, and executive orders are a key feature of it.  Consequently, the true question ought to be whether and to what extent the use of executive orders merits some sort of recalibration by the other branches.  For decades, the field of administrative law has focused extensive effort on promoting transparency, accountability, public participation, and reasoned decisionmaking in executive branch lawmaking.  However collaborative the process of formulating executive orders has been, it offers little toward satisfying those ideals.  Pursuing those traditional administrative law goals for executive orders may grab fewer headlines or get fewer clicks than raising the specter of authoritarianism.  But it will be more likely to yield better governance.

Kristin E. Hickman is the McKnight Presidential Professor in Law, Distinguished McKnight University Professor, and Harlan Albert Rogers Professor in Law at the University of Minnesota Law School, where she teaches and writes on administrative law, statutory interpretation, and tax administration topics.

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