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The late historian Arthur Schlesinger memorialized the term “imperial presidency” back in the early 1970s. Given the scores, perhaps hundreds, of executive orders issued by recent administrations, the term seems prophetic. Now the government is operating in the wake of a historic number of executive orders, memoranda and proclamations from the Biden White House. Ohio State law professor Peter Shane offered an assessment and historical perspective on Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Mr. Shane, good to have you on.

Peter Shane: Good morning.

Tom Temin: So you have written an essay in The Reg Review saying that this is not new, but it’s increased pace under the Biden administration. What do we make of all this from the standpoint of previous administrations and by way of comparison?

Peter Shane: So the primary takeaway, I think, from what President Biden has done in the opening weeks is mainly how thoroughly the administration’s transition team had gone through the policies and orders executive initiatives of the prior administration and decided very carefully from their point of view what they wanted to revoke, prune, or otherwise, kind of trim. The reason I wrote my essay, and what I often talk to people about when I talk about executive orders really has to do with what I think is a kind of a public misperception of the nature of these presidential orders. And I have to say, it’s a misperception that presidents themselves have sometimes nourished, because issuing executive orders is something that presidents can do on their own, it has the feel of action, and these orders can be important. But they cannot directly require the public to do anything unless Congress has given the president some kind of statutory authority to impose new duties, obligations or create new rights for the public. What the President can do is simply organize activity within the executive branch. This President campaigned on the idea that we’re facing a very large handful of truly major crises. And so the main point of these orders, which sort of had the feel more of FDR, than even the Obama administration, is really to get the executive branch organized to address those high priority crises. And to do it in a way that kind of, again, clears away policies that they regard as counterproductive that were left over from the executive orders of the prior administration.

Tom Temin: So even though this makes wonderful television with the stacks of beautiful binders, and the rows and rows of pens, and the signing we saw over and over again in those first early couple of weeks, it’s mainly symbolic with respect to what the effect on the public is, but it somehow focuses the appointees, and I guess by extension, the career federal workers that worked for them, at least temporarily.

Peter Shane: I think that’s correct. And one doesn’t want to underplay, I suppose, the importance of symbolism and reminding the public of what any administration’s high priority values are. But I think they are really just kind of stage setting devices in a lot of ways. You can remember during the Obama administration, President Obama was frustrated about a lot of things. But one of the things he was frustrated by was Congress’s kind of stalemate when it came to reforming gun regulation. And so he said, if Congress doesn’t act, I have to. And so he issued three orders, I think, two may have been called executive orders, one may have been called a memorandum. And I should also say it makes no difference from a legal point of view what the title is at the top. But none of these actually changed gun regulation. What they did is directed various parts of the executive branch, Justice Department, Department of the Treasury, other agencies that might have a stake in doing gun research, basically directed them to treat certain things as a high priority, try to improve the efficiency with which they were carrying out their existing missions. But again, when President Obama said Congress isn’t acting so I have to, it may create the public impression that these are equivalent, that a president can affect the kinds of policy change on his or her own that are identical to what Congress can do, and that’s not the case.

Tom Temin: Reminds me of an anecdote of FDR, when sitting at his desk surrounded by a bunch of admirers had a bill to sign and as he signed it he said, this is where I make a law, but in fact it’s not really making the law that he was doing, but it sounded good I guess to the fans. And given the somewhat or largely symbolic nature of these, then it’s surprising as you write how many executive orders proclamations instructions are written in the final days of administration’s when the President knowing another party is coming in. This happened at the end of the George W. Bush administration and at the end of the Trump administration, how many they issue at that point, and they’ve got to know they’re going to just be empty gestures.

Peter Shane: One of the biggest surprises of doing the research for the essay was in fact just how many orders President Trump issued in his last week, and how assertive they were in making assignments that would extend beyond January 20th a the inauguration of his successor. Some of the orders issued even in the waning days were pretty much immediately revoked. But I think one understudied phenomenon, is in general what happens to executive orders after the signing President leaves office, obviously every president has a four year term, and if they’re reelected, they get eight years in office. But we’re now into the 14,000 numbered executive orders since the Roosevelt administration. I don’t know if anyone’s really done a thorough study of how many of these are still treated as being in effect, how many have been formally revoked, how many of them are just ignored. I mentioned, I would love to know the answer to this, I should probably interview someone about it, one of the last trump orders was the specification of 244 Americans to be memorialized in statues in what the executive order called the National Garden of American Heroes. And this was an order directed to the Department of the Interior to allocate its appropriations to create this national garden. And the 244 names are fascinating because they create all kinds of great trivia questions and living room conversations or kitchen table conversations about, why is Alex Trebek an American hero, but not Sandy Koufax an American hero. And I haven’t seen any publicity about this at all. It’s a little hard to imagine that the Biden administration is going to carry out this project. But again, I haven’t seen any formal revocation of it.

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Tom Temin: Anyway, Alex Trebek was Canadian, so it makes it even more curious. But there is one executive order which has had lasting effect, and that is number 10988. That was signed by President john F. Kennedy. And it launched the era of modern federal employee unions. So that one’s had some real staying power, and I think subsequently it was undergirded by statute. So it is possible that these can have lasting effect.

Peter Shane: Oh, absolutely. So right now the major framework for the organization of intelligence activity within the executive branch, the assignment of different tasks to say, the CIA or the NSA or the Defense Intelligence Agency in the Department of Defense. All of that is really done pursuant to an executive order executive order 12333, which was signed originally by President Reagan. It’s been amended in some respects by subsequent presidents, but it’s still considered the governing authority. And President Reagan in elaborating this framework was relying both on what he believed to be the constitutional power of the president with regard to national security, but also the powers conferred on the executive branch by the National Security Act of 1947. So this is a very important executive order which is still completely regarded as being in effect. every agency, other than the independent agencies, is also following today in 2021. A program of reviewing or having reviewed proposed and final regulations that they issue under their various administrative statutes. So EPA if it wants to issue a new pollution standard, or NISTA, issuing a new car safety standard, all of that gets reviewed by the Office of Information and Regulatory Affairs in OMB. The system for review was created originally by a Reagan executive order 12291. That was significantly reworded, I’ll put it that way. elaborated further by President Clinton in executive order 12866. And that executive order, which I believe came out in 1993, that executive order has been the framework for regulatory review in the Office of Management and Budget for almost 20 years now. And again, there’s no one who doubts the fact that it continues to be the living document that governs this process.

Tom Temin: So maybe the lesson for administrations is pick a few that really matter do them right and do them early.

Peter Shane: I think do them right is very important. So if we think about executive orders that have life beyond an administration, the Kennedy administration issued what is frequently called the executive order on executive orders, which laid out what was then intended to be a process for the way in which executive orders would be developed and analyzed within the executive branch. I’m pretty sure its wording is in some respects now obsolete. But I think the basic idea is still the conventional way of doing executive orders, where the Biden White House, for example, thinks the world needs an executive order on telecommunications, other than the Federal Communications Commission, executive branch policy with regard to telecommunications comes out of the Department of Commerce. So the White House would probably ask the Department of Commerce to do the first draft of an order. And that draft would be shared with other agencies that might have a stake in the particular policy that’s being proposed. And then there would be a review process that would be brokered by the Office of Management and Budget. If there were differences of opinion between let’s say the Commerce Department and the Defense Department with regard to how GPS is managed, for example, that might be worked out by OMB, and then the Justice Department would review the legality of the order and whether it’s consistent with underlying statutory authority. Now, all of that sounds time consuming and very formal. It’s going to take a lot of energy and attention from a lot of different actors within the bureaucracy. But one reason why the Trump administration often was rebuked in lower courts for kind of lapses in administrative policymaking was that they didn’t take the time, very often, to dot all I’s, cross all T’s. And that can be very costly. And often the short term investment in making sure that whatever the President wants to do is being done correctly, it’s going to pay off in the greater durability of that policy going forward.

Tom Temin: Peter Shane is a law professor at Ohio State University. Fascinating stuff, thanks so much for joining me.

Peter Shane: Thanks for having me. I hope it’s been helpful.

Tom Temin: It sure has.

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