Griffin Bell
Former U.S. Attorney General
With William Howell and Ken Mayer
University of Wisconsin-Madison
"The History of the Executive Order"

Griffin Bell: This is a great subject to consider today, particularly given the last thirty to forty days of the Clinton administration. God only knows what orders were measured and what they will cover, but I guess eventually we will know. I read last night, after getting here, about half of the new book by the ….. . It’s really well done and it’s surprising how little information there is about the executive order and the powers of the president. Without intruding on what the two professors are going to say, I have always thought that if executive order could be possibly attached to anything in the Constitution, then the president could do it. There have been some shocking things done and then there are most of the things they do by the executive order that are rather mundane. When the Shrackle-Replacement Bill (?) was voted down in Congress, I was living in a another country when President Clinton, in just a few days thereafter, made it into an executive order—the same thing Congress refused to do. So, that’s a bad example, I guess. But, you will hear some examples and be enlightened as to the brainwaves of how we go about promulgating the executive order. Dr. Mayer…

Ken Mayer: It is a great honor to be here and it is a great honor to meet Judge Bell after seeing the documents that he put his hand to at the Carter Center. It is also nice to be at such a beautiful campus. Will and I were walking around yesterday marveling at the architecture. Will was remarking how historic and beautiful and grand the buildings are as opposed to our department—we are in a building which was built in 1851 and it is merely old. So, it is very nice to be here.

It has been an interesting several weeks for the presidency in many respects. This is a subject that I started thinking about in 1993 when, after President Clinton was elected, on his first day he issued a number of decisions that were widely characterized as executive orders in a memorandum that overturned some policies from the Bush administration and the Reagan administration. I did not know that a president could do that. I thought presidents had to go through congress fore everything, which sort of fits with the standard conceptions of the office that we have. Then a few years later after the 1994 elections, the Mexican economy was about ready to melt down, and Clinton, together with the Republican leadership in the House and the Senate, put together a $40 billion loan guarantee program for the Mexican government to stabilize the economy. To everyone’s surprise, this program was undercut by opposition from both liberal democrats in Congress who were still smarting over NAFTA, and conservative republicans who opposed this as a Wall Street bail-out. So the legislation was declared dead. Several weeks later, Clinton, on his own authority, authorized $20 billion in loan guarantees using a law that Congress passed in 1934, called The Exchange Stabilization Act. This law was originally intended to allow the Department of the Treasury to shore up currencies if that could undercut the value of the dollar (this was not a use that was anticipated). I thought to myself, I didn’t know a president could do that! Several months later in March we had the incident that Judge Bell referred to when Congress, after repeated efforts to pass legislation that would bar companies from hiring permanent replacement workers to replace striking workers, the legislation failed and Clinton went ahead and did it on his own. I thought, something is going on here. There is something that we are missing as scholars. I began to look at the literature on the presidency and began to study this. I found that there was very little that had been done, so I started investigating. I want to share with you a few examples of actions that presidents have taken solely on their own authority—without any involvement of Congress or the court’s involvement. Let me review the events of the last few weeks.

In the waning days of his administration, Clinton issued dozens of executive orders and proclamations which, among other things, declared new national monuments, which take public lands off-limits to development. He issued dozens of last-minute pardons, including 176 on his last day in office, among them was the controversial pardon of the fugitive Mark Rich and his partner. There were numerous cases of executive branch agencies hustling their regulations into the federal register to get the role-making process going or to get the final rule imposed before January 20^th when the new president would come in and presumably reverse some of those orders. Bush, whose press secretary Ary Flysher had referred to Clinton as something of a busy beaver in his final days, promised a close review of these last minute orders. So, when Bush got into office, his first act on January 22^nd was to issue a memorandum overturning what Clinton had done as his first acts as president. So, what happened is that Clinton overturned what had become known as the Mexico City Policy in which non-governmental organizations involved in family planning services, in order to receive U.S. foreign aid, had to fore-score all abortion-related services, whether or not they used U.S. taxpayer dollars. The Mexico City Policy imposed a ban that even if a group provided those services with their own funds, they would not be eligible for U.S. foreign aid. On January 22^nd, 1993, Clinton reversed that policy. On January 22^nd, 2001, Bush reversed Clinton, who had in turn reversed Reagan, who had in turn, reversed an earlier policy. So, when my neck stopped hurting from being whip-sawed . . .

Bush is also facing pressure from various constituencies who look to him to overturn a number of executive orders that Clinton had issued. For example, there is an executive order on the books that prohibits companies who have been found to violate labor laws from being eligible for government contracts. It is a way of blackballing companies similar to what Clinton was trying to accomplish with the Replacement Worker Order. Although the Order applies only to those businesses involved with the federal government that is just about everybody. There is scarcely a medium or large corporation in which some division does not have some contact or contracts with the federal government. So, that is kind of the modern flavor of what is going on.

Some historical examples of important executive orders or actions that were taken solely on the basis of unilateral presidential authority (some of which I’m sure will be familiar to people at the University of Virginia):

• The Emancipation Proclamation, which Lincoln issued during the Civil War solely on the basis of his authority
• The creation of the executive office of the president was an act by an executive order roughly pursuant to legislative authorization for reorganization authority
• Roosevelt’s order authorizing the internment of Japanese-American during WWII

President’s have virtually single handedly created the modern structure for classifying information and the personnel clearance system on their own. There are a few categories of government information that have statutory protection—atomic energy information, certain information relating to intelligence operations—everything else is solely a function of presidential discretion. Presidents have also virtually single handedly organized the intelligence community on their own. Such things as the ban on assassination by U.S. intelligence agencies enacted by President Ford is a settled matter of U.S. policy that is based on presidential authority. Much of the modern framework of Affirmative Action policies began with executive orders issued by Presidents Kennedy and Johnson which imposed requirements first on government contractors, but because of the scope of federal governmental contracting activity, began to diffuse and now apply across the board. This review of unilateral presidential authority shows that, unlike the textbook picture of the presidency—of the president negotiating with Congress and being hamstrung by the separation of powers and the short reach of his formal authority—there are many cases when presidents can in fact implement significant policies on their own. There are limits but it is quite clear that presidents have taken significant action which Congress is, more often than not, unable to counteract. Why is this?

There are two reasons that I identified. One of them is the ambiguities of executive powers specified in the Constitution. Unlike article one, which has fairly explicit grants, the charges in article two are broad, vague, open to interpretation, and there are a lot of things that are missing and it is up to the president to fill in the gaps. The jurisprudence has reflected that kind of ambiguity and it is not an accident. But, probably the single most judicial statement about executive order comes from the Youngstown Case in 1953 which involved a Truman executive order seizing much of the nation’s steel-making capacity—roughly 85%--on the basis of an emergency power. In this case, Truman was overturned, but Justice Jackson’s conferring opinion remains the classic statement of the reach of presidential power. In addition to those ambiguities of power, the president has the advantage that he can go first and alter the landscape and put Congress in the position where they must respond. Since Congress is a majoritarian institution not well known for its efficiency, it can be very difficult to muster the majority (and often 2/3 the majority to counteract a presidential veto). There are incentives for presidents to exercise central control because, unlike Congress which is set up to deflect blame when something goes wrong (i.e.: the president or the other party), presidents to do not have that luxury. When things go wrong, presidents are blamed, irrespective of whether or not they were actually responsible for it. It certainly does, as Judge Bell noted, pose the risk of an imperial presidency—a president working through fiat rather than through the legislative process. But, I think that there are enough checks, in theory, although I do agree that there need to know more about executive orders to find out what the full landscape looks like.

What we conclude is that, as a community of scholars and people who are interested in the president, we need to focus more on the president’s unilateral powers to get a full picture of the office. We know that presidents think in these terms and we know that president’s staff thinks in these terms. One of the famous quotes from the Clinton administration, which sort of summed up their governing philosophy, was made by Paul Begallow who gave an interview with James Bennett, a New York Times reporter, where he said, "stroke of the pen, law of the land…it’s kind of cool." As key evidence that there is something going on here, executive orders made their way into an episode of The West Wing in which the president had been presented with legislation that he needed to sign but had provision that he did not like. It dawned on one of his staff members that the president could use the Antiquities Act to designate the area as a national monument. I was very excited running to my wife telling her that they were talking about executive orders on a primetime television show. And she said that I was probably the only person in the country who noticed that. But, I would just like to state for the record that it happened and that I may have been there first, but I don’t think that I will be the last. So, I will stop there and turn it over to my colleague, Will, who will share some additional information about the empirical side of what is going on.

William Howell: It is a pleasure to be here. It is quite clear that presidents are acting unilaterally more and more frequently and with greater and greater affect. Increasingly presidents are unilaterally sending troops abroad without first securing the consent of Congress—Somalia, Bosnia, Haiti are all recent examples. Presidents increasingly are issuing what are called as National Security Directives. This is a way of setting new policy in a variety of positive means. These are not ever made public. These are just presidents setting policy and Congress and the courts do not have formal opportunities to respond. If you look at just the trend-lines, the number of executive agreements issued this century, it has just sky-rocketed so that today presidents consistently issue hundreds of executive agreements every single year. If you look at the number of significant executive orders that are issued, they now consistently issue somewhere between ten and fifteen. On the face, it seems that these powers grant the president absolute authority over a variety of policy domains. If the president decides that he wants to extend federal productions to lands in Arizona or Utah or Hawaii, he can just do so, he just issues a ruling. But there clearly are limits to what a president can accomplish. Congress can overturn the president, the courts can rule an executive order unconstitutional or without statutory justification. So, what we need to do is not just provide and account of what presidents have done unilaterally, but we need to get a sense of sort of the flavor of where the limits are and how far can the presidents go and use these powers to affect public policy. This really is an institutional story.

As Ken pointed out, the Constitution is not particularly helpful in pointing out what it is exactly that presidents can do. One of the things that I have tried to do is to get a handle on how Congress and courts have responded to executive orders that the president has issued in the modern era. The first concerns the courts. In the post-war era, through about 1990, I identified a total of 82 cases that challenged and executive order in federal courts—this covers district, appellate and Supreme Court levels. There are about ten that actually made it up into the Supreme Court. The question, then, is how often are presidents being overturned? Do presidents need to pay careful attention to the courts when they issue executive orders? What you see is that these challengers are covering a broad area of policy areas—there are a bunch in international trade, social welfare, energy and the environment. As you can see from this graph, presidents are doing pretty well in these challenges. The next figure shows that these challenges are spread out pretty well. While Reagan and Nixon and Carter defended the most number of executive orders in the modern era, every president, except for Kennedy, was involved in a court case. The last figure shows that presidents win about 85% of the time when they are challenged in the federal courts. This is really remarkable if you think about it. No where in the Constitution does it say that the president can issue and executive order—this is clearly a contested power. These cases do not include all of the executive orders that are never challenged—those that are challenged but the courts just dismiss. It does not look perhaps, like the courts represent a huge constraint on what the president is going to accomplish unilaterally.

What then of Congress? With Congress I do not have a comprehensive listing of every single bill that was introduced that was aimed at amending or overturning and an executive order, but through various sweeps of primary literatures, I was able to generate a sub-sample. What we have here are roughly 35 bills that were introduced post-1970, primarily, that were aimed at overturning something the president did. There are three incidences post-1970 in which Congress actually managed to overturn something the president did with an executive order. Three. The vast majority of the time they are not responding at all, and when they do respond, by introducing a bill, almost always the bill dies in committee. Congress’s opportunity to effect what presidents are doing unilaterally with these executive orders is also that they can codify an executive order in law, expand the scope of an executive order, and appropriate funding for a project that is set up with an executive order. In these instances, they are significantly more successful. Whereas before, these bills that were designed to amend or overturn what the president is doing with and executive order, those bills are dying in committees, here they are consistently becoming law. In part, obviously, this is because there is not a presidential veto waiting at the end of the legislative process in ways that there are when Congress is trying to limit what the president is doing with these powers.

Griffin Bell: I have read a good deal in the last few days on executive orders, and I have come to the conclusion that it is a problem and that something needs to be done about it. But, you need to have a frame of reference. It struck me that just as it was said in ?’s The Nature of the Judicial Process, the judges were charged with filling-in statures (Congress passes general statures), and judges within the confines of the statures fill in gaps. That is all the power I think the president ought to have. There has been no oversight on the president because some of these things are so clearly legal (such as what the president might do as Commander in Chief). For example, Lincoln’s Emancipation Proclamation in which he prefaced by letting these former slaves in these rebellious states available to go into the Union Army was an act of Commander in Chief. I am not all that clear on what Jefferson was thinking his power was in the Louisiana Purchase, but I would have to argue that it was carrying out the foreign policy which was a power that the president had in dealing with France. I do not know where the power comes to set aside vast lands for the country, as has been done in recent times, but that traces back to Teddy Roosevelt who set aside Yellowstone and Glacier National Park. The president has power to faithfully execute the laws and he is the only one to do that. Sometimes you can find something that he wants to do under that power. He has an executive power which is to organize the executive branch of the government. Most of the time you can find something in the Constitution to attach his activity to. Sometimes it goes awfully trite—the Iran Contra was an unusual thing. There was no stature against dealing with the Contra, but there was something called a bowl (???) on the members, which is passed three times and attached to an appropriations bill (it was not a crime, just said you could not spend any money for that purpose). When the Iran Contra investigation started and a special council was appointed, he decided that what they had done was a crime.

Some of these executive orders are sent to the Department of Justice to review by the Office of Legal Council, but not all of them. President Carter pardoned the draft dodgers in the day he was president under a department file (a blanket pardon) that did not go through the Office of Legal Council. The recent pardons we have seen in the last couple of days did not go to the Justice Department either. So, not always are they passed through the Justice Department. I think in the end, and I think we are almost to that point, someone will study this and come to the conclusion that Congress is not exercising its own power in this area. Congress has three great powers. One is to legislate. Another is to appropriate funds. The other is the oversight power—to see what is happening to the appropriation and under the law. They have never used oversight power in the Congress toward the executive order. They could, and a good example would be what we have done about the select committees in the Senate and House on foreign intelligence. At one point, and I have had some experience in this, there were about forty committees and subcommittees in the Congress that had something to do about foreign intelligence. We had reached the point where no foreign intelligence group in another country would deal with us because everything would be leaked—probably within 24 hours of when we decided to do something. So, we got Congress to set up the select committees of just two committees now to deal with--one in the House and one in the Senate with very good people. There could be a select committee on the executive orders in the Congress (it might be a joint committee between the House and the Senate). They could have a staff and keep up with these orders and see if they had some attachment to the Constitution. I think that would be a good thing because we cannot let any part of the government get too powerful. The Founding Fathers thought in terms of a separation of powers, but they also thought in terms of checks and balances. And, I am speaking now to a checks and balance. Shouldn’t it be something that Congress ought to be doing? Who else can do it but the Congress?