*This is the twelfth 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.
Upon reading By Executive Order, I was transported back in time to 2006-08 when I served as Associate General Counsel at OMB and roamed the halls of the Eisenhower Executive Office Building (and the New Executive Office Building) and participated in many of the same meetings and discussions so richly and colorfully described in Professor Rudalevige’s new book. Indeed, the anecdote on page 70 of my former colleague Mac Reed “personally walk[ing] around for sign off on a cover sheet,” brings back a flood of memories of Mac doing the very same thing for Executive Orders during my time serving in the Executive Office of the President even though communications were fully electronic by that point.
In many ways, it is comforting and reassuring to know that many of the institutions and processes, as well as internal dynamics in the Executive Branch, described by Professor Rudalevige have remained essentially unchanged over the years across many different Presidential Administrations (particularly in the aftermath of increased oversight and coordination by OMB).
When I worked within the EOP, I experienced the various forces of a President trying to shape his policy agenda through issuance of Executive Orders, but at the same time having to leverage the expertise of various Cabinet agencies to achieve these ends. A prime example of that was Executive Order 13,422, which, among other things, extended OIRA’s coordination and review function from agency rulemakings to also include agency guidance documents with significant economic impacts. This was a significant priority for the President and thus predisposed to centralized management in line with Professor Rudalevige’s broader empirical findings. But the EO impacted to varying degrees a number of Cabinet agencies under the President’s supervision, and the back-and-forth process over working drafts of the EO facilitated input—and importantly buy-in—from these agencies. That aligns with the book’s findings that substantively significant and important EOs that impact many agencies and depend on their expertise (and acquiescence) are likely to contain both centralized and decentralized elements to the decision-making process.
After triggering that immediate response of taking me back in time to when I had a small part in the development of EOs, the book also raised broader questions for me about how the President manages and exerts the powers of the “unified” Executive Branch. Having worked within the Executive Office of the President, Professor Rudalevige’s vivid descriptions of the inner workings of Executive Orders reminded me that almost every action taken that is described as Presidential in nature is, in reality, the byproduct of extensive back-and-forth dealings with stakeholders throughout the Executive Branch. This applies to threats of vetoes to pending legislation, signing statements accompanying enacted bills, the crafting of the budget submitted by the President to Congress, the drafting of the annual State of Union speech, including any new programs or initiatives highlighted in those remarks, etc. In reality, almost every action that we view through the lens of politics and current events shares these common elements described by Professor Rudalevige of managing the vast expertise of the federal bureaucracy and leveraging it successfully to further the President’s policy goals.
This is no mere academic exercise, as it potentially involves rethinking how we frame and understand events of the day. Just in this new Administration, we have seen many varied forms of Presidential action, including the withdrawal of American forces from Afghanistan; the development of wide-ranging reconciliation legislation meant to address climate change, child care, and a range of other policy initiatives; the rollout of Covid vaccines and mandates; etc. Most of the reporting of these events has focused on the personalities of the individuals involved, with scant attention paid to how the EOP must extract information and expertise from the pertinent bureaucracies and generate and maintain their support for implementing whatever final policy decisions are made by the President. That back-and-forth and multi-layered decision-making process is far less visible to the public, but, as illustrated in Professor Rudalevige’s new book, critical to understanding how public policy is developed and implemented by the Executive Branch.
Nikesh Jindal is a partner in King & Spalding’s Appellate, Constitutional and Administrative Law practice. Prior to that, he served as Associate General Counsel at the Office of Management and Budget and as senior counsel at the Department of Energy.