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When Presidents Can’t Wait and Act on Their Own

By Cass R. Sunstein
February 24, 2013 6:30 PM EST
Bloomberg View columnist Cass Sunstein.
Photographer: Stephen Voss/Bloomberg
Bloomberg View columnist Cass Sunstein.

Quiz question: Of the last seven U.S. presidents, which one issued, by a large margin, the most executive orders per year?

Answer: Jimmy Carter. Gerald Ford is second, Ronald Reagan is third, Bill Clinton is fourth, and George H.W. Bush is fifth. George W. Bush and Barack Obama bring up the rear and are essentially tied.

The numbers are revealing, because executive orders are the most formal steps that presidents can take to make policy on their own, and yet no one would rank Carter as the most muscular president in recent decades. On the contrary, the conventional wisdom probably sees him as the weakest. Nonetheless, he issued 319 executive orders -- almost 80 a year, a much faster pace than Reagan’s 47, and far ahead of Obama’s 36.

True, it is important to know not only the number of executive orders, but also their content -- what they do and why. An answer to that question will help inform the increasingly heated debate about “executive actions” by President Obama -- and about whether they illegitimately bypass Congress. Executive actions are nothing new, and presidents, both Republican and Democratic, have properly undertaken a large number of them. They are an established part of our constitutional system -- and are typically legitimate because Congress itself has previously authorized them.

Executive actions fall into many categories. Executive orders are official, numbered documents, binding on the executive branch, through which the president publicly orders his appointees to act in specified ways (for example, to issue rules only when the benefits justify the costs).

Binding Regulations

Presidential memoranda are similarly binding, but they often have a narrower focus and may be directed at a single Cabinet member (for example, ordering the secretary of health and human services to extend visitation rights to members of same-sex couples).

National regulations, binding on the public, are usually issued by agencies and departments, and rarely by the president personally, though the most significant ones are subject to White House review. They are a primary vehicle by which any administration makes policy, especially when Congress is stymied. In addition, the president oversees the enforcement of national law. He can target his efforts to areas that seem to him of greatest concern, and he has a degree of prosecutorial discretion as well, authorizing him to decline to act in certain areas.

Everyone agrees that to initiate action, the president must be able to show that the Constitution or Congress authorizes him to do so. In fact, Congress has authorized the overwhelming majority of executive actions undertaken by both Republican and Democratic presidents.

Consider the current controversy over recent and potential actions by the Environmental Protection Agency to regulate greenhouse-gas emissions. Some critics have noted (correctly) that Congress failed to enact a “cap and trade” law to regulate such emissions. They object that EPA action would be an inappropriate and even illegal end run around Congress.

Nothing could be further from the truth. In 2007, the Supreme Court ruled that greenhouse-gas emissions count as air pollutants within the meaning of the Clean Air Act. For this reason, the EPA is permitted, and probably required, to reduce such emissions. A federal court of appeals has upheld the EPA’s efforts to do precisely that.

Like their predecessors, all recent presidents have taken numerous executive actions to achieve their policy goals. Clinton promoted tobacco control and paid leave for new mothers and fathers. George W. Bush protected financial assistance to faith-based organizations and combated human trafficking. Reagan maintained restrictions on the export of technical data and promoted drug-free federal workplaces.

Legitimate Authority

The Obama administration’s “we can’t wait” initiatives fall comfortably under this general framework. In undertaking initiatives to increase the fuel economy of gasoline, to improve outcomes at Head Start (by requiring more competition among facilities for federal funds), to reduce student-loan payments, to prevent prescription-drug shortages, and to help young people find summer jobs, the administration acted well within the authority granted to it by Congress.

True, there are limits on the nature and scope of executive actions. The Supreme Court struck down Clinton’s tobacco-control initiative, carried out by the Food and Drug Administration, on the grounds that it exceeded legal limits (set by Congress) on FDA authority.

Obama’s “we can’t wait” initiatives included recess appointments to the National Labor Relations Board. While both Republican and Democratic presidents have made such appointments, a court of appeals recently ruled that Obama exceeded his constitutional authority. That ruling is controversial, and the Supreme Court may ultimately reject it, yet the general point is clear: Courts are available to police executive actions.

All presidents find that the national legislature is unwilling to enact some of their highest-priority proposals. But existing law also grants the executive branch a lot of power to act on its own. In exercising that power, presidents hardly “bypass Congress.” On the contrary, they act because a previous Congress has authorized them to do just that.

(Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Simpler: The Future of Government,” to be published in April. The opinions expressed are his own.)

To contact the writer of this article: Cass R. Sunstein at csunstei@law.harvard.edu.

To contact the editor responsible for this article: Katy Roberts at kroberts29@bloomberg.net.

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