The Power of the Pen

Sure, the Democrats could hit the jackpot this year and take the White House and both chambers of Congress. But if John Kerry wins, he could just as easily be facing a Republican-controlled Congress that's, well, not eager to cooperate. Luckily, his hands
wouldn't be tied. He'd still have the executive order to help promote his agenda. In fact, on issues from the environment to labor to abortion, Kerry would likely resort to unilateral action rather than try to wrangle a bill through Congress. Acting through executive orders would allow him to take decisive stands and to set the terms of a policy debate. Indeed, given the chances of an oppositional Congress and the fact that he would be replacing a Republican, Kerry would probably use the executive order even more often than Presidents Bill Clinton and George W. Bush did. But before doing so, he would need to take a good look at his recent predecessors, because while they have all used the executive order to define their agendas, they have also found that pushing too far has painful political consequences.

In the modern era, executive orders have gone from being a tool largely reserved for internal White House operations--deciding how to format agency budgets or creating outlines for diplomatic protocol--to a powerful weapon in defining, and expanding, executive power. In turn, presidents have increasingly used that power to construct and promote social policies on some of the country's most controversial issues, from civil rights to labor relations to reproductive health.

The executive order is not mentioned in the U.S. Constitution; rather, it derives from the document's requirement that the president enforce federal laws--that he “shall take Care that the Laws be faithfully executed”--and carry out his various constitutional duties, such as overseeing the military and conducting foreign relations. “Presidents have issued executive orders from the earliest days of the republic,” notes political scientist Kenneth Mayer in his 2001 book, With the Stroke of a Pen: Executive Orders and Presidential Power, “but there has never been a uniform style.”

Executive orders weren't systematically recorded until the 1920s, and the numbering system instituted in 1907 extends, retroactively, only to the Lincoln administration. (Executive Order 1, issued on April 15, 1961, established military courts in Louisiana.) What's more, many actions characterized as executive orders are actually presidential memoranda, directives, and proclamations, similar in use but legally distinct tools. (Ronald Reagan's so-called Mexico City policy, which blocked federal funds for international aid groups that provide abortion counseling, is one such memorandum often mischaracterized as an executive order.) But while the definition is vague and the limits are murky, the exercise of an executive order is pretty straightforward: The president can order an executive branch agency to do anything he wants, as long as he can cite a law or the Constitution to support his action.

Taken as a whole, executive orders are pretty mundane. Even today, they usually amount to little more than bureaucratic fine-tuning--an order issued by Bush on April 30, for example, streamlined the process for building border-crossing stations. But they have also been used by presidents to effect dramatic change. In 1948, frustrated with his efforts to get civil-rights legislation moving in Congress, Harry Truman used the executive order to desegregate the military. In 1994, after Congress refused to bail out the Mexican economy, Clinton invoked his power under the Exchange Stabilization Fund, a Depression-era mechanism allowing the president to defend the dollar abroad, to provide $20 billion in loan guarantees. The most famous executive order may be the Emancipation Proclamation, which drew on Abraham Lincoln's power as commander in chief to free slaves held in Confederate states. “It was quite clearly the most expansive use of the executive order power ever,” says Walter Dellinger, a Duke University law professor and a Clinton assistant attorney general. Presidents have deployed executive orders for less admirable reasons as well, Franklin Delano Roosevelt's decision to intern Japanese Americans during World War II being perhaps the most egregious example.

In very rough terms, the modern use of executive orders has gone through two phases--the first to expand the president's power, the second to exercise that power. Before the turn of the century, the president was weak relative to the Congress, and he had only partial control over the executive-branch agencies (the rest were largely autonomous, setting their own agendas and submitting their own budgets to Congress). But during the first two decades of the 20th century, as Mayer writes, the expansion of the federal government put pressure on Congress to centralize authority over the budget, and several presidents--William Howard Taft, in particular--pushed for that control to reside in the White House. “In my opinion,” Taft wrote in 1912, “it is entirely competent for the president to submit a budget, and Congress cannot prevent it.” Congress initially opposed the idea--Edward Fitzpatrick, a congressional staffer who authored a report on executive budget proposals in 1918, called it a move toward a “Prussian” military state--but eventually caved by passing the 1921 Budget and Accounting Act, allowing the president to set the budgets for executive agencies. As constitutional scholar James L. Sundquist noted in his book The Decline and Resurgence of Congress, “[T]he modern presidency … began on June 10, 1921, the day that President [Warren] Harding signed the Budget and Accounting Act.”

A similar series of events occurred during the late 1930s, when Roosevelt pushed Congress to give him more authority over the proliferation of government agencies of the New Deal. Congress had intended for Roosevelt to merely streamline operations, but he used it to expand his powers rapidly during the war--powers, such as control over foreign aid, labor relations, and intelligence, that remained with the president long after the fighting stopped.

The second phase of executive-order usage began after World War II, when presidents used them to exercise their newly expanded powers. In foreign affairs, the expanded executive pursued Cold War operations, from foreign aid to intelligence gathering to military operations. But executive orders were also deployed on the home front to initiate social change in the face of congressional and public opposition, most notably on civil rights. In 1941, after meeting extensively with civil-rights leaders, Roosevelt used the executive order to create the Fair Employment Practices Committee (FEPC), forbidding discrimination by federal contractors. The fepc proved ineffective, but it gave notice to Congress and the public that civil rights was on the president's agenda and that he was willing to act alone to improve them.

Following the war, Truman lined up a series of executive orders to promote his civil-rights agenda, including military desegregation and a restructured FEPC. As Sherie Merson and Steven Schlossman note in their book, Foxholes and Color Lines, “[Truman's] intervention emboldened advocates of racial equality, put supporters of segregation on the defensive, and opened a path leading toward the completion of formal racial integration.” John F. Kennedy used the executive order to establish the Committee on Equal Employment Opportunity, and Lyndon Johnson initiated affirmative action with an order to federal contractors regarding hiring practices. As Mayer noted, “The executive order became a powerful symbol of presidential commitment to racial equality,” galvanizing a movement that went on to force change at all levels of society.

There are legal and political limits to how a president can deploy executive orders--through the courts, the Congress, and the public. In 1952, Truman invoked his powers as commander in chief to seize the nation's steel mills when workers threatened to strike (he claimed a strike would hinder his ability to prosecute the Korean War). But in its landmark Youngstown decision, the Supreme Court ruled that Truman had overstepped his authority. The courts also ruled against Clinton's order preventing federal contractors from hiring permanent replacements for striking workers, and, this June, against Bush's policy regarding Guantanamo Bay prisoners. This has happened only infrequently, but the mere possibility of a negative ruling makes presidents think twice about using executive orders too loosely.

Congress provides an additional, if somewhat less effective, check on executive orders. In theory, any executive order can be later annulled by Congress. But in the last 34 years, during which presidents have issued some 1,400 orders, it has defeated just three. More often, Congress will counter executive orders by indirect means, holding up nominations or bills until the president relents. “There's always the potential that a Congress angry about one issue will respond by limiting other things you want,” says Mayer.

The most effective check on executive orders has proven to be political. When it comes to executive orders, “The president is much more clearly responsible,” says Dellinger, who was heavily involved in crafting orders under Clinton. “Not only is there no involvement from Congress, but the president has to personally sign the order.” Clinton's Grand Staircase-Escalante National Monument executive order may have helped him win votes, but it also set off a massive congressional and public backlash. Right-wing Internet sites bristled with comments about “dictatorial powers,” and Republicans warned of an end to civil liberties as we know them. “President Clinton is running roughshod over our Constitution,” said then–House Majority Leader Dick Armey.

Indeed, an unpopular executive order can have immediate--and lasting--political consequences. In 2001, for example, Bush proposed raising the acceptable number of parts per billion of arsenic in drinking water. It was a bone he was trying to toss to the mining industry, and it would have overturned Clinton's order lowering the levels. But the overwhelmingly negative public reaction forced Bush to quickly withdraw his proposal--and it painted him indelibly as an anti-environmental president.

What kinds of executive orders could be expected from a Kerry administration? The most obvious, says Mayer, would be a series of orders in early 2005 that address Bush's more political unilateral actions, especially given the unlikelihood of a Democratic congressional sweep. “I would expect Kerry in the first few months of his administration to make a series of symbolic and substantive gestures reversing what Bush has done,” he says. “I would expect it to be a busy time.” After all, many of Bush's most egregious policy moves--creating the Office of Faith-Based and Community Initiatives, limits on access to presidential papers--have been enacted through executive order, so it's a good bet that Kerry would reinforce his base by rescinding them in kind during the early days of his administration.

Organized labor has been infuriated by Bush's willingness to use the executive order to cut into gains made under Clinton. One of Bush's first orders, for example, dissolved the National Partnership Council, which Clinton had established in 1993 as a way to give labor leaders more influence in federal contracting issues. So it's likely that Kerry's transition team would prepare labor-friendly orders. Indeed, like the environment--and, a half-century ago, civil rights--labor has become an area in which the president is expected to act by executive order, largely because, as a hotly partisan issue, it's almost impossible to do anything substantive through legislative means. Kerry could re-establish the npc; he could also issue an order establishing specific and permanent labor standards for future trade agreements. (Clinton issued a similar order, regarding environmental standards, in 1999.)

Abortion is another area in which Kerry would likely act unilaterally. Just two days after his inauguration on January 20, Clinton used the 21st anniversary of Roe v. Wade to announce a memorandum repealing Reagan's Mexico City policy. The move carried both practical and symbolic weight: It not only reopened federal coffers to dozens of international aid groups, it cemented Clinton's abortion-rights reputation as well. Bush, on the 29th anniversary of Roe, evoked that day's symbolism to the opposite effect, revoking Clinton's memo and sending the signal that he was willing to use executive power to curtail abortion rights. And in the ping-pong game that Mexico City has become, Kerry could very well reverse its direction again.

Kerry would likely act on stem-cell research as well. Bush's August 2001 executive order limiting research to 78 existing stem-cell lines has been attacked by both Democrats and Republicans as an overly restrictive, arbitrary policy--and a sop to the religious right--and Kerry himself has called on Bush to relax the policy. “If we pursue the limitless potential of our science, and trust that we can use it wisely, we will save millions of lives and earn the gratitude of future generations,” he said recently. Because the issue is so politically charged, Kerry would likely find it easier to act alone than try to push a bill through Congress--perhaps by replacing Bush's order with one allowing unlimited research, coupled with a ban on human cloning and a patient-approval requirement.

Observers also expect significant action on foreign policy. Beyond using the executive order to respond to international crises, Kerry would likely use it to correct some of Bush's more egregious missteps--such as the administration's desire to circumvent the Geneva Conventions. “I would expect, making conditional forecasts, that there will be new policies on detainees and a renouncing of the earlier positions regarding the application of the Geneva Conventions,” says Mayer. This could be as simple as a proclamation reaffirming a blanket commitment to the conventions, or something more robust, such as stronger safeguards against the use of torture.

Finally, there would likely be a grab bag of orders aimed at swing voters, securing their votes for the next election. When Clinton came into office, according to Dellinger, there were several people on the transition team tasked with drawing up good-government orders to attract Ross Perot voters. It's a good bet that veterans would likely benefit from quick executive action under Kerry. Should John Edwards succeed in pulling in a number of southern voters, expect to see similar action on rural issues such as support for small-business manufacturing.

But don't expect Kerry to push the executive order too far. He probably wouldn't take any drastic steps on hot-button issues like Iraq or taxes. If he's learned anything from his predecessors, he'd use executive orders strategically, deploying them to address specific interest groups and to reverse obviously unpopular Bush policies. Of course, it's ultimately hard to say exactly where Kerry would use executive orders. But if recent history is any guide, however he uses them, they will likely define his presidency.

Clay Risen is an assistant editor at The New Republic.