What are 'executive orders,' anyway?

  • Article by: CASS R. SUNSTEIN , Bloomberg
  • Updated: January 29, 2014 - 2:59 PM

Hint: They're not new, or scary, or a matter of 'bypassing Congress.'

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In the aftermath of President Barack Obama’s State of the Union address, there is a lot of confusion about the phrase “executive actions.” The president has an assortment of different tools, and it is important to distinguish among them.

“Executive orders,” issued by the president personally, often involve large-scale, government-wide matters, and contain his own orders to the officials who work for him. For example, an executive order might require executive agencies to reassess and streamline existing regulations, to promote diversity in the federal workforce, or to improve customer service.

Executive orders are nothing new. In his first five years, Obama issued 167 executive orders — a lower rate than George W. Bush (291 over eight years), Bill Clinton (364 over eight years), George H.W. Bush (166 over four years), Ronald Reagan (381 over eight years), or for that matter Dwight Eisenhower (486 over eight years).

“Presidential memoranda,” also issued by the president personally, often involve more technical matters and might be issued to one or few members of the executive branch. For example, a presidential memorandum might direct the Environmental Protection Agency to regulate greenhouse gas emissions from power plants, or might direct agencies to modernize the nation’s electric transmission grid by improving the process for siting, permitting and reviewing transmission lines The line between executive orders and presidential memoranda is not always crisp and clear, but the former tend to involve more significant matters.

In the general category of “executive action,” much of the most important work comes from “regulations,” which typically have the force of law, and which may well bind the private sector (or, for that matter, state and local governments). Regulations are issued by agencies, not by the president personally, but they reflect his commitments and priorities.

For example, the Obama administration has issued a serious of regulations increasing the fuel economy of motor vehicles. The regulations were issued by the Department of Transportation and the Environmental Protection Agency, not by the president himself.

As of today, 112 regulatory actions are under review at the Office of Information and Regulatory Affairs, and summaries are publicly available. Eighteen of the pending rules come from the Department of Health and Human Services; 16 from the Department of Transportation; nine come from the Department of Energy; five come from the Department of Housing and Urban Development.

Many of them would have a significant impact. For example, a rule from the Department of Health and Human Services would eliminate or reduce regulatory requirements that appear to impose unnecessary burdens on hospitals, doctors and nurses. A rule from the Food and Drug Administration would improve the current nutrition facts label. The Department of Energy is considering rules that would increase the energy efficiency of battery chargers, automatic commercial icemakers and commercial refrigeration equipment. The track record of energy efficiency rules has been extremely good, producing benefits (including consumer savings) well in excess of costs.

Before they are finalized, significant regulations are subject to careful scrutiny within the executive branch, and also to a process of public comment. They must also comport with the law. For this reason, it is misleading — a kind of rhetorical trick — to suggest that they are “bypassing Congress.” On the contrary, Congress has previously authorized them through legislation. Most of them are not subject to serious legal challenge.

Agencies also have the authority to issue general policy statements, or interpretive rules, that do not have the force of law but can have real effects, economic or otherwise. For example, an agency can issue a policy statement clarifying that it will not undertake enforcement action in certain domains. Or it can interpret a law, or a regulation, in a way that expands or contracts the reach of minimum wage and maximum hour requirements. Here as well, there are legal restrictions in what the executive branch can do, but significant steps are possible.

The important point is that the phrase “executive actions” includes an assortment of different tools. Both Republican and Democratic presidents have legitimately invoked all of them, especially when legislative paths are blocked.

 

Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs.

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