Congressional Testimony Regarding the Impacts of Executive Orders on Public Agencies Instructions Senior executives in the federa

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Week 3

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Applying and Implementing Executive Orders

Executive orders are direct presidential instructions that are usually aimed at addressing a

particular problem or set of problems within the executive branch of the U.S. government

and are submitted to the federal registry. Executive orders are presidential mandates

directed at particular agencies to implement certain functions and they are normally

limited in time and scope.

U.S. Presidents usually institute executive orders after either failure to obtain

congressional consensus such as when President Barack Obama introduced the 2012

immigration policy, Deferred Action for Childhood Arrivals (DACA) when Congress failed

to pass the DREAM Act. Other types of executive actions are sometimes put in place for

agency-specific activities such as when President Trump issues a presidential

memorandum, the Lobbyist Ban that prevented individuals who become lobbyist from

lobbying agencies they previously worked at for a 5-year period.

There are times when Congress, special interest groups, and other organizations disagree

with the president’s executive orders and challenges are made through the courts at the

federal level. Depending on the severity of the challenges and language in the policy, the

matter might be settled in lower level courts and sometimes the issues are taken up by

the U.S. Supreme Court. While the courts may not directly create policies, decisions made

by the courts, especially the U.S. Supreme Court, are considered policies because the

rulings either support or overturn the current policies. When these policies are

overturned, that changes the landscape of that particular issue within society.

References:

Be sure to review this week's resources carefully. You are expected to apply the

information from these resources when you prepare your assignments.

83.33 % 5 of 6 topics complete

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Books and Resources for this Week

Dudley, S. E., & Mannix, B. F. (2018).

Improving Regulatory Benefit-Cost

Analysis. Journal of Law & Politics,

34(1), 1–20. Link

Short, J. L. (2018). The trouble with

counting: Cutting through the rhetoric

of red tape cutting. Minnesota Law

Review, 103(1), 93–149. Link

Trend #1: Where Are U.S. Economic

Policies Taking The World? (2018).

Trends Magazine, (188), 1–9. Link

U.S. Department of Justice Link

Warber, A. L., Ouyang, Y., & Waterman,

R. W. (2018). Landmark executive

orders: Presidential leadership through

unilateral action. Presidential… Link

Week 3 – Congressional Testimony Regarding the

Impacts of Executive Orders on Public Agencies Assignment

Due March 27 at 11:59 PM

Senior executives in the federal government are often called upon to provide

congressional testimonies to different committees in the U.S. House of Representative

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and the U.S. Senate depending on the nature of the congressional inquiry. Senior officials

within the executive branch of government must stay ready to brief Congress and the

American people on all matters within their respective agencies. Briefings are prepared by

agency personnel and senior executives are given talking points on major issues and

success stories within the agency.

As the senior advisor to the U.S. Attorney General, write a paper that prepares the

Attorney General to brief Congress on matters pertaining to the heroin and opioid crises.

Be sure your paper addresses the following:

1. Define the impacts of the heroin and opioid crises on the U.S. population.

2. Explain actions taken by the U.S. Department of Justice to curtail these challenges.

3. Identify steps the general public can take to help mitigate some of these

challenges.

4. Critique Justice Department policies and strategies for dealing with these

challenges and offer recommendations for improvement.

Length: 5-7 pages, not including title and reference pages.

References: Include a minimum of 5 scholarly resources.

Your presentation should demonstrate thoughtful consideration of the ideas and concepts

presented in the course and provide new thoughts and insights relating directly to this

topic. Your response should reflect scholarly writing and current APA standards. Be sure

to adhere to Northcentral University's Academic Integrity Policy.

Upload your document and click the Submit to Dropbox button.

Landmark Executive Orders: Presidential Leadership Through Unilateral Action

ADAM L. WARBER, YU OUYANG, and RICHARD W. WATERMAN

Scholars focusing on landmark congressional legislation have not categorized executive orders as similar to legislation passed by Congress, although they have the same legal standing. It is clear that some executive orders have a greater impact than others and thus observers view them as being of greater importance. Ronald Reagan used executive orders to alter the manner in which agencies established regu- lations, creating a process of administrative central clearance that delegated considerable power to the Office of Management and Budget over the agency regulatory process. Truman used an executive order to desegregate the military. In this article, we examine those orders that are of a level of importance com- mensurate with landmark legislation, and, using expert scholarly opinion, we discuss and analyze orders that meet these criteria.

Keywords: executive orders, presidential leadership, unilateral presidency

There shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin.

—Harry S. Truman, Executive Order 9981 The Secretary of State shall establish as an agency in the Department of State which shall be known as the Peace Corps.

—John F. Kennedy, Executive Order 10924

Just as presidents seek fundamental change through landmark legislation, presi- dents long have employed executive orders to adopt major policy change. Not all execu- tive orders are alike, in terms of substance or importance, and while a vast literature on executive orders exists, much of it focuses on narrow questions such as whether presidents issue more orders during periods of divided government or ideological polarization (see, e.g., Deering and Maltzman 1999; Howell 2003; Mayer 2001; Warber 2006). While

Adam L. Warber is a professor of political science at Clemson University. His research focuses on the administrative presidency and the unilateral powers of the president. Yu Ouyang is an assistant professor of political science at Purdue University Northwest. His research focuses on the unilateral presidency and quantitative methods. Richard W. Waterman is a professor of political science at the University of Kentucky. His research focuses on the unilateral presidency, presidential appoint- ments, and the politics of the bureaucracy. AUTHORS’ NOTE: We thank the anonymous reviewers for their helpful comments and feedback and those presidency scholars that provided us with valuable information about the classification of landmark executive orders.

Presidential Studies Quarterly Vol. 48, No. 1, March 2018, 110–126

110 DOI: 10.1111/psq.12434

VC 2017 Center for the Study of the Presidency and Congress

these are certainly important questions, the substance of executive orders has received far less scholarly attention. As the two executive orders referenced above demonstrate, presi- dents often address important substantive policies in executive orders. Furthermore, these orders have the same legal standing as a law passed by Congress (Mayer 2001, 35). In this article, we rely on expert scholarly opinion to identify these more important orders, simi- lar in scope to significant landmark legislation, or what we call: landmark executive orders.

We argue that there is a critical need to address the issue of landmark orders. As a president’s reputation rests on landmark legislation (such as Franklin Roosevelt’s New Deal or Lyndon Johnson’s Great Society legislation), unilateral action also defines a presi- dent’s historical standing. Truman’s order desegregating the military adds to his standing among presidential scholars, while Franklin Roosevelt’s order regarding the internment of Japanese Americans represents a stain upon his historical reputation. Regarding unilat- eral action more generally, one of Lincoln’s most important policies was established by executive action with his pronouncement of the Emancipation Proclamation. Thomas Jefferson commenced the Louisiana Purchase unilaterally. And presidents today initiate important policy action on the environment, immigration, and national security via exec- utive orders, national security directives, proclamations, and other unilateral actions (Cooper 2014). Consequently, the substance of unilateral action matters. Surprisingly, then, there currently is no systematic analysis of the policy substance of unilateral action. Most textbooks on the American presidency either briefly examine executive orders, at best discussing a few important ones, or merely list the number of orders issued by each president. And while empirical research notes that the vast majority of executive orders can be characterized as routine, insignificant, or minor, there is little examination of the substance of these orders beyond these broad categorizations. Scholars have identified that while presidents issue fewer executive orders on average per year in recent administra- tions, they do issue more major orders (Warber 2006, 39–40). We posit that if presidents are issuing more major orders, we need to have a better systematic understanding of how these orders affect the policy and political process. Our task here is to begin to unpack the larger categories of major and significant orders and to identify those orders that have a more important impact policy-wise and on a president’s reputation. To do so, we rely on expert opinion to identify what scholars perceive to be the most important executive orders. As we demonstrate, there is a considerable divergence of scholarly opinion regard- ing which orders are of a landmark nature, with presidential scholars more likely to iden- tify orders related to civil rights and liberties.

The Study of Presidential Executive Orders

There has been an enormous advance in scholarly research on presidential executive orders during the past 20 years, both qualitatively and quantitatively (Cooper 2014; Deering and Maltzman 1999; Dodds 2008; 2013; Fine and Warber 2012; Howell 2003; Krause and Cohen 2000; Marshall and Pacelle 2005; Mayer 1999; 2001; Mayer and Price 2002; Ouyang and Waterman 2015; Rottinghaus and Warber 2015; Rudalevige 2012;

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Warber 2006; Wigton 1996). This scholarship is marked by three major areas of research activity: utilizing legal, constitutional frameworks to analyze executive orders; the build- ing of empirical models to explain presidential decisions to issue executive orders; and considering how scholars should treat executive orders within their studies and whether there are important justifications for classifying these presidential directives into different types of policy categories before analyzing them.

Most executive order studies have been rooted within a legal framework that assessed the constitutionality of the president’s unilateral power, while also describing how presidents exercised this extraconstitutional power over time (see, e.g., Cooper 1986; Fleishman and Aufses 1976; Raven-Hansen 1983). In some instances, researchers used in-depth case studies to explore specific executive orders, or they concentrated on a collec- tion of executive orders related to a specific policy domain. For example, rich qualitative studies exist on Franklin Roosevelt’s internment of Japanese Americans on the West Coast during World War II (Robinson 2001), civil rights of African Americans (Morgan 1970), Harry Truman’s Executive Order 9981 desegregating the armed services (Mershon and Schlossman 1998; Taylor 2013), and Truman’s Executive Order 10340 instructing the Department of Commerce to seize the nation’s steel mills to prevent a nationwide strike in that industry (Marcus 1977). In recent years, historians and political scientists have begun to identify unilateral actions taken by earlier administrations before the mod- ern presidency, such as Thomas Jefferson and Abraham Lincoln (Dodds 2013). A recent biography by Ronald C. White (2016) demonstrates that Ulysses Grant initiated many civil rights actions through unilateral action (523). While much of this qualitative work generates rich, descriptive information, it only provides a further rationale for a more comprehensive study of the subject of important unilateral actions. It also demonstrates that if we ignore unilateral action and examine only so-called landmark legislation, we ignore much of importance that presidents achieve.

Contemporary research on executive orders also has centered on building empirical models to explain why the number of executive orders that presidents sign varies over time. Those studies discovered that numerous variables can influence the president’s deci- sions to strategically issue an executive order, including the state of presidential approval and the role of the national economy (Krause and Cohen 1997, 472–73) along with party control of the White House (Mayer 1999, 457–59; Mayer 2001, 96; Warber 2006, 45). There also is evidence suggesting that the electoral environment, such as midterm and presidential election years, can shape the president’s executive order activity (Mayer 1999, 457–59; Ragsdale and Rusk 1999, 112). A significant amount of this empirical research focuses on the influence of divided government. However, scholars have pro- duced mixed findings that have left this topic open to further research. Most studies con- clude that presidents issue a greater number of executive orders during unified rather than divided government (Gleiber and Shull 1992; Howell 2003; Krause and Cohen 1997; Mayer 1999; 2001; Warber 2006). Deering and Maltzman (1999) presented evi- dence that presidents use executive orders to bypass a Congress that is difficult to work with on public policy. Fine and Warber (2012) found that “presidents are more likely to sign symbolic and routine executive orders during unified government and when Con- gress is ideologically proximate. In contrast, major policy orders are more prevalent when

112 | WARBER, OUYANG AND WATERMAN

the preferences of the president and Congress diverge” (272; see also Ouyang and Waterman 2015).

More recently, some attention among scholars has shifted to assessing the influence of the public presidency on the types of unilateral strategies that chief executives under- take to pursue their policy agendas (Warber 2014). Specifically, those studies show that presidents use executive orders to create public policy that targets specific constituencies, including women, African Americans, labor unions, and environmentalists. Rottinghaus and Warber’s (2015) empirical models linking the public and the unilateral presidencies to both executive orders and presidential proclamations found that presidents use both of these tools strategically to build support with various constituencies in the public. How- ever, “presidents issue more constituency-based proclamations (but not necessarily execu- tive orders) when Congress is stronger (i.e., possessing larger majorities). . . [and] when Congress and the executive branch are more likely to disagree on policy, such as in divided government . . .” (Rottinghaus and Warber 2015, 306). Because these findings suggest that presidents use unilateral action strategically, these studies provide an addi- tional rationale for studying the substance of unilateral action.

How then can we measure and analyze executive orders based on their policy sub- stance? The common method is for scholars to treat each executive order equally in terms of importance and policy substance. Certainly this approach is appealing to scholars in today’s data-driven discipline. It is much easier and less time consuming for researchers to use the number of executive orders that presidents issue either on a yearly or monthly basis within their empirical models rather than content analyzing the text of each execu- tive order. In fact, prior to Mayer’s (2001) groundbreaking research on executive orders, scholars did not even consider the importance of separating executive orders into different types of directives before analyzing them. In his seminal book, Mayer classified each exec- utive order as either significant or nonsignificant. An executive order was significant if it resulted in “press attention, congressional notice, presidential emphasis, litigation, or cre- ation of institutions with substantive policy responsibility” (Mayer 2001, 85). In another study, Mayer and Price (2002) added to these five criteria for classifying executive orders as significant by adding a sixth benchmark that they termed “scholarly treatment.” Spe- cifically, they combed various research studies produced by legal and presidential scholars to identify those executive orders that they referred to in their works. However, in order for an executive order to be deemed significant, a directive only had to meet one of these six criteria (Mayer and Price 2002, 375).

In his equally influential book, Howell (2003) categorized his sample of executive orders by deeming directives significant if they were mentioned in the Congressional Record, court rulings, or the New York Times (Howell 2003, 80–81). Although both approaches move beyond treating each executive order as equal in terms of importance, Mayer and Howell focused on the coverage of executive orders rather than on the actual policy substance contained in the text of each directive. That is, they rely on various media outlets and political actors in government to assist them in determining which directives are deemed significant and those that are less important, as well as congressio- nal or judicial interests. A limitation of this approach is that media sources may be biased toward certain policy areas (e.g., they may be more likely to report stories about the

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environment). Furthermore, those executive orders that are reported in the various sour- ces used by Mayer and Howell are automatically classified as significant directives. Why should we assume that media reporting or government documents merely make reference to so-called significant executive orders? Is it possible that media reporting occurs for those directives as well that might be deemed less important in terms of policy, such as those directives that the White House relies on for ceremonial or symbolic policy pur- poses? Members of Congress have their own particularistic policy concerns. Likewise, the courts only examine issues that are brought before them. Hence, none of these approaches assess common characteristics in a systematic manner that is related to the actual sub- stance of unilateral action.

Warber (2006) is the first to content analyze the text of all executive orders from 1936 through the end of the George W. Bush administration. Specifically, each execu- tive order is classified as either a symbolic, routine, or a major policy directive. Symbolic directives are those that are ceremonial such as the president issuing a new medal for soldiers in the armed forces or developing official seals for newly created federal depart- ments or agencies (Warber 2006, 141). These directives are different from other types of executive orders in that the policies are noncontroversial and they should not receive much, if any, criticism from other governmental actors or the media. In essence, these are the types of executive orders where politicians are less likely to challenge the presi- dent in order to avoid burning unnecessary political capital. Those executive orders that are marked as routine are either directives that fulfill purely administrative, clerical, or housekeeping functions in the executive branch or they are directives that presidents use to implement existing federal laws established by Congress. As a result, routine executive orders do not create new policies, nor do they depart from already established public policies. Instead, this type of executive order is used by the president to fulfill his constitutional function of executing the laws. For example, Section 10 of the Rail- way Labor Act (45 U.S.C. 160 (1926)) grants to presidents the power to establish tem- porary emergency boards to mediate labor disputes that occur between employers in the transportation industry, such as the airline or railroad industry, and their employees, in order to avoid possible strikes. Chief executives commonly sign an executive order offi- cially forming an emergency board along with providing an expiration date that denotes the time in which a board’s authority and responsibilities to work on a dispute formally ends (Warber 2006, 142).

Those executive orders that are classified as major policies in Warber’s data set represent efforts by chief executives to go around Congress by establishing pol- icy on their own. More precisely, major policy executive orders are “either depart- ing from the status quo of a specific policy that has already been implemented, or interpreting and implementing legislation that diverts from the original intent of Congress. In essence, an order is a policy initiative when its main function is presi- dential lawmaking” (Warber 2006, 143). George W. Bush circumvented Congress in relation to abortion policy by issuing Executive Order 13435 on June 20, 2007, which put the brakes on embryonic stem cell research (Bush 2007, 34591). This directive represented a major attempt by the president to establish policy unilater- ally with the stroke of his pen.

114 | WARBER, OUYANG AND WATERMAN

Still, despite the efforts by Mayer, Howell, and Warber to separate directives into different policy types, much of the research since these studies continues to assume that each executive order is equal in terms of its policy substance. As a result, there have been limited efforts to create new classifications of executive orders based on their policy sub- stance. This state of affairs is understandable given the significant time commitment required to classify executive orders. For example, the content analysis that Warber (2006) undertook to create his data took over a year and his data collection technique did not rely on computer software to conduct the content analysis. It also reflected the judg- ment of one presidential scholar.

We should note that there have been some studies that built on existing data sets that separated executive orders in order to analyze the strategic advantages of presidential unilateral activity (see, e.g., Chiou and Rothenberg 2014; Major 2014). However, the classification schemes used by Mayer, Howell, and Warber only go so far in advancing our understanding of the substance of unilateral action. They have not been scrutinized in detail by the scholarly field, nor has there been much discussion or consensus among scholars about how to best treat executive orders in terms of the policy substance of those directives. As a result, there exists no consensus among researchers regarding the criteria used to identify those executive orders in which the policy substance of those directives represents significant or landmark policies. In this study, we provide a preliminary exam- ination using expert opinion as a means of identifying what we call landmark executive orders. Our goal is to begin the conversation in the field of the unilateral presidency for determining how scholars might more systematically pinpoint and assess those important executive orders that reach landmark status.

Landmark Executive Orders

Landmark legislation long has been considered a benchmark in evaluating a presi- dent’s performance and historical standing. Whether it is Congressional Quarterly’s mea- sure of presidential success in passing legislation or historians citing what they identify as key laws enacted during each presidency, presidential reputations are forged on the steel of landmark legislation. Yet, presidents have other tools and resources at their disposal to build their policy legacies. As Moe (1985) argued, presidents continue to develop new resources in order to satisfy public expectations. As such, while landmark legislation pro- vides one benchmark for evaluating each president’s performance, it is insufficient. Unless we also examine how presidents accomplish their agendas through these other tools or resources, we are missing an important piece of the puzzle regarding presidential power. This next step involves an understanding of how presidents use various unilateral authori- ties to advance their policies, either directly by establishing new approaches or by induc- ing Congress to then enact legislation more favorable to the president’s policy preferences. This step requires us to do more than simply examine the raw number of executive orders issued by presidents, for example, or even the major, routine, minor, sig- nificant, or nonsignificant orders. Just as a count of the number of laws passed during a president’s term would be misleading, a mere count of unilateral actions only takes us so

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far in understanding what presidents want and what they achieve. Cooper (2014) under- scored this point by noting that merely counting executive orders for research purposes “is an unhelpful exercise because the issue is more about content than quantity” (16). Therefore, a more promising approach is to examine the actual policy substance of unilat- eral actions to determine whether certain directives represent landmark policies. To do so, we begin by examining scholarly perceptions of the most commonly studied unilateral activity, executive orders. Because executive orders are the better known and most often studied of unilateral actions, the substantive impact of these orders should be more appar- ent. However, before we can proceed, existing scholarship on landmark legislation in Congress serves as an important guide to how we might identify landmark executive orders.

How then have scholars identified landmark legislation? In his pivotal work, David Mayhew (1991) was interested in whether divided government impacted congressional passage of landmark legislation. He therefore identified landmar

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