Originally published by the Yale Journal on Regulation
*This is the third post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power.
Perhaps because they bear the president’s signature and don’t require ratification, executive orders are considered to be entirely within the president’s control. But early in his new book, By Executive Order, Professor Andrew Rudalevige introduces us to one of its core ideas: the executive branch matters to executive orders. And within the executive branch you find the bureaucracy.
Ah, the bureaucracy! My former home and setting for so many marvelous and astonishing stories. Rudalevige helps us feel what it’s like to be on the inside of the executive branch when the content of draft executive orders is being hammered out. This is the heat of bureaucratic battle, in which you’re either in the arena or cut out of the action, passive aggressive memos fly, and would-be arbiters jockey for the ability to settle disputes.
Of course, not every policy issue triggers such an active policy process; plenty make it through peaceably. Rudalevige’s original data on the length of time that a draft EO is under consideration shows that some draft EOs seem to breeze right through executive branch review (p. 143-152). Others go in but take a while. Some never come out.
As much as the book’s vivid depiction of intra-executive branch goings-on resonated with me, I found myself wondering how the more extreme proponents of the unitary executive theory would receive the descriptive findings of Rudalevige’s book. With horror, I suppose? When Rudalevige explains that “[t]he bureaucracy provides resources for unilateralism, and also shapes and bounds its use” (p. 9), does this make them grimace? Is the president supposed to be able to control the bureaucracy all the way down?
I’m not nearly alone in believing in the importance of energy in the executive, but there is also no doubt that an extreme version of this belief can lead to malignant growth in an otherwise healthy system. A fairly recent example of this is President Trump’s ham-fisted executive order directing the Office of Personnel Management to establish a new personnel classification: Schedule F. This order, issued late in Trump’s term, argued that agency leaders should have a freer hand to screen for “temperament, acumen, impartiality, and sound judgment” in the hiring and retention of employees in “confidential, policy-determining, policy-making, or policy-advocating positions.”
Pushing back on Schedule F, and in particular OMB’s speedy implementation of it for its own employees, Susan Dudley and Sally Katzen, former OIRA administrators from Republican and Democratic administrations, argued that it might discourage frank exchanges between staff and politicals. They noted that “it is more important than ever that OMB staff continue to provide expert advice and institutional knowledge to political leaders.” Indeed, the order’s use of “temperament” sent a chill down my spine, and I was happy to see President Biden promptly revoke the order. Notwithstanding the many good reasons to undertake civil service reform, it’s impossible not to connect Trump’s order with the headwinds that Trump faced with some (but not all) of the civil service. There is a brittleness to the Schedule F order, a fragility it revealed, a sense that persuading the bureaucracy was too hard, not actually the president’s job, and an unfair burden on him.
But must a president accept a rowdy bureacuracy? Rudalevige has a view. Not only should the president accept it, he should welcome it, because it’s part how a president makes sure that he has enough good information to make big or hard choices. Rudalevige argues that “bargaining complements command as a key dimension of executive orders–and, indeed, that bargaining with the bureaucracy may serve the president far better than does coercive command” (p. 10). The value of presidential persuasion is a helpful complication to any binary discussion about presidential control.
Of course, presidents have long been exasperated by the challenges of making the executive branch respond to their direction; Rudalevige catalogs of number of their fuming comments. Even so, presidents have generally retained the very internal review process for draft executive orders that serves as a venue for these disagreements to foment. Rudalevige’s book helps us understand why: it is ultimately in the president’s interest to “extract information while fending off opportunism” that comes when a variety of views are not gathered. Trump retreated from that process, pulling the executive order review process closer to him in the White House and away from the Office of Management and Budget. This was one of many signs of Trump’s approach to leadership. And while it didn’t get much attention, OMB’s executive order coordination role was one of the first things that Biden restored.
By Executive Order is a remarkably well-timed contribution arriving after years of Rudalevige’s painstaking archival research, empirical analysis flowing in part from that archival work, original interviews with people who have been close to the EO development process in several administrations, and synthesis of other historical accounts of the EO development process. Reading the book is a delight, framed as it is by Rudalevige’s careful judgment, good humor, and evident fondness for the material he studies. Just as EOs do not arrive by stork, there is no stork for books about EOs, and I tip my hat to Rudalevige for taking on this project and offering it to us at such an opportune time.