capitolbldg.no.cloudsEXECUTIVE ORDERS: WHAT THE PAST AND PRESENT TELL US ABOUT THE FUTURE

 

At noon on January 20, 2017, President Barack Obama’s administration will end and a new president will be sworn in. Whether that next president is President Hillary Clinton or President Donald Trump, the end of the previous president’s term and the beginning of a new president’s term raise questions about how the outgoing president and new president will use his or her executive authority through Executive Orders to shape our nation and the federal government’s policies. For presidents leaving office, these end of term Executive Orders represent their last opportunity to shape their legacy. For new presidents, it is an opportunity to fulfill immediately campaign promises. The use of Executive Orders is not without controversy and often raises concerns about the powers of the presidency and Congress’ role in making laws.

What insight can we gain on what to anticipate in the new administration?  This installment of Eye on Washington:

  • Reviews the history and background of Executive Orders
  • Explores some of the conventional wisdom and narratives on how they are used and when
  • Compares these assumptions to data on eight administrations
  • Looks forward at the possible Executive Orders of President Clinton or President Trump

A BRIEF HISTORY OF EXECUTIVE ORDERS

While Executive Orders are not described in the Constitution, they are an important tool of the Executive Branch’s authority to carry out its powers under the Constitution and the laws passed by Congress. Presidents since President George Washington have used Executive Orders to instruct federal agencies how to carry out the laws, conduct foreign policy and trade, or convene councils and advisory groups.

The use of Executive Orders rightly prompts debate about the Constitutional separation of powers between the Executive and Legislation branches of government. While some have criticized the use of Executive Orders in expanding the role and powers of the presidency, this criticism often comes with a notably partisan bent. Furthermore, the irony of criticizing Executive Orders is that an additional Executive Order is needed to rescind one. For the partisan criticism that occurs when a president issues an Executive Order, the other party is eager to use this power themselves when the tables have turned and control of the White House changes. Congress has the power to repeal Executive Orders or change the underlying authority relevant to a particular Executive Order; however, this oversight would also likely entail overriding a presidential veto.

It is important to note that there is a distinction between Executive Orders and executive actions – Executive Orders are specific documents that are published in the Federal Register. Executive actions, which can be part of Executive Orders and also include presidential memoranda and proclamations, are informal directions by the President to parts of the Executive Branch, such as agencies, which can also make change through the regulatory process. The data used in this document reviews only Executive Orders, but in our later section on what future President Clinton or President Trump might do, we use the expanded understanding of Executive Orders and executive actions, as the two are frequently conflated in the media and campaign rhetoric often lacks this nuance.

CONVENTIONAL WISDOM AND NARRATIVES

There are important questions to think about when trying to anticipate how current and future administrations will act through Executive Orders.

For an outgoing administration, one conventional wisdom holds that the president will issue many Executive Orders to cement his or her legacy; however, it also is conventional wisdom that a president could issue fewer Executive Orders because he or she already has addressed pressing matters throughout his or her presidency. In addition, if he or she believes they have the power to change something in his or her final days in office, why did he or she not do it earlier in his or her presidency? Furthermore, a president may be more likely to issue more controversial or “right-but-not-popular” Executive Orders, unburdened with not having to run for election or think about future relations with Congress or other stakeholders. Of course, a new president could also undo these Executive Orders – by Executive Order.

One aspect for outgoing administrations to consider is whether the President that follows him or her is of the same party or the opposing party and what effect that might have on Executive Orders. If the next President is of the same party as the current President, there may be less of a need to issue Executive Orders. On the other hand, if the next President is of the opposing party, more Executive Orders may be issued to protect important policy priorities. However, an argument could be made that an outgoing President may want to be seen as a statesman and not seek to undermine a new president by issuing many Executive Orders on the way out the door.

For new presidents, he or she could issue many Executive Orders, bringing about immediate change and exercising his or her new powers. On the other hand, conventional wisdom also holds that new presidents need to get his or her bearings on taking over the Executive Branch and instead focus on building his or her cabinet and an early legislative agenda. And for a new president taking office from a member of the same party, there may be fewer executive orders because of an assumed agreement between the two individuals. On the other hand, individual differences and a need to show independence during the campaign season may necessitate issuing executive orders upon taking office.

Throughout a presidency, Congress is an important factor in these considerations as well. If a president is not of the same party that controls one or both chambers of Congress, does a president issue more Executive Orders because his or her agenda is blocked, or is he or she likely to issue fewer Executive Orders in order to give the legislative process a chance? And if the president’s party matches the parties that control Congress, does the president issue less Executive Orders because legislation can be passed more easily?

REVIEWING THE DATA

We reviewed eight administrations, back 47 years, to President Nixon’s administration, to get a snapshot of Executive Orders. We compare the data to the narratives and conventional wisdom and then try to extrapolate that insight to what might happen in the first year of President Trump or President Clinton, particularly as we consider which parties may have control of Congress.

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1) Do outgoing presidents issue more or less executive orders in final full year or final month of their term than the average number throughout their presidency?

Data: Reviewing the data, Clinton, HW Bush, Carter, Ford, and Nixon issued more than their average for their final full year in office. However, for all presidents reviewed (Bush, Clinton, HW Bush, Reagan, Carter, Ford, and Nixon, who did not know it was his last year) a different pattern appears for their final month in office, with less Executive Orders were issued than their average throughout their presidency.

Comments: There are a number of possible explanations we can infer from this, and the data both supports and does not support the conflicting narratives. This data would seem to support parts of the conventional wisdom, that in the final full year of a presidency, the president issues many Executive Orders, and then largely tapers off in the final month. However, the decrease in the final month could also simply be due to the significantly shorter time frame.

On the other hand, the conventional wisdom that a president ramps up in their final month is not supported by the data. This could mean that presidents cement policies in their final year, or it could mean that presidents simply issued Executive Orders as needed throughout their presidencies. It is interesting that Clinton, HW Bush, Carter, and Ford issued more than their average in their final year, as it could possibly reflect partisan influence against the next president or reflect the effects of running for reelection. In order to test this further, let us look at the effect of the next president on Executive Orders in our next question.

2) What is the effect of the next president’s party on the current president’s Executive Orders?

Data: When the next president is going to be from the other party, four presidents (Clinton, HW Bush, Carter, and Ford) issued more than average Executive Orders in their final year, while Bush issued less. However, in the final month, all presidents reviewed issued less than their average.

Comments: Again, multiple narratives can be seen here. In the final year in office, Clinton, HW Bush, Carter, and Ford issued more Executive Orders than the average during their presidency. However, HW Bush, Carter, and Ford were also running for reelection during this period. Then, in the final month, all of these presidents issued less than average. This result appears inconclusive for our narratives; presidents may lock-in policies at the end of their term, but there does appear to be deference to the next administration in issuing Executive Orders in the final month.

3) In a new president’s first year, is the number of Executive Orders more or less than the average of their presidency?

Data: Reviewing the data, Obama, Bush, Clinton, Reagan, and Carter issued more Executive Orders in their first year than the average of their presidencies. However, HW Bush, Ford, and Nixon issued less than their averages.

Comments: The split in cases of presidents issuing a number of Executive Orders that is more or less than the average of their presidency shows that both narratives are plausible – some presidents issue many Executive Orders when they come into office, and others issue less, presumably because their administration is being established in the first year.

4) In years in which a president’s party does not control both chambers of Congress, is the average number of Executive Orders during that period greater than or less than the average number of Executive Orders issued when their party did control both chambers of Congress?

Data: Only three presidencies can be compared here, as HW Bush, Reagan, Carter, Ford, and Nixon only had a divided or opposing Congress or full control for their entire presidencies. For the three cases we can look at (Obama, Clinton, and Bush), each president issued more Executive Orders while their party controlled Congress.

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Comments: The narrative that an uncooperative Congress results in more Executive Orders does not appear to be supported here. In all three instances, a president whose party controlled Congress issued more Executive Orders than during divided government. This could mean that presidents feel more empowered with their agenda during times that might suggest a political mandate. It could also mean that a divided Congress is likely to push back more on Executive Orders, suppressing their issuance in the first place.

WHAT THIS TELLS US

What can we infer from this? For President Obama, it is a tossup whether he will issue more or less Executive Orders than average in his final year, but it appears likely he will issue far less in his final month. If Clinton wins, he may issue less, and if Trump wins, he may issue more.

For the next president, regardless of whether Trump or Clinton win, it is likely each would issue a sizeable number of Executive Orders in his or her first year. Both Clinton and Trump could face a divided Congress (if Democrats take the Senate and the House remains in Republican control), leading to potentially fewer Executive Orders from both. However, the best guide for what Executive Orders they may issue is to look at what they have actually suggested they would do.

LOOKING FORWARD

Throughout this election season, both presidential candidates have discussed various policy proposals that have included mentions of Executive Orders. While these are not always concrete proposals or accompanied by a detailed policy proposal, we can review these proposals noted on campaign websites and in news articles.

For Hillary Clinton, as she would be following a president of the same party, she has noted that her focus on executive orders includes:

  • Defending President Obama’s legacy: Clinton has indicated she would defend President Obama’s executive orders on issues such as climate change, immigration, and student loans, as well as foreign policy initiatives with Iran and Cuba.
  • Immigration reform: Continuing President Obama’s work on immigration reform, including through Executive Orders.
  • Taxes and Jobs: Last year she indicated she could use Executive Orders to take action on corporate inversions, and removing tax advantages for companies that move overseas.
  • Firearms: She has discussed addressing gun violence, including assault weapons.
  • Student loan reform: A recent Vox article suggested Clinton’s goals on student loan reform could be accomplished through Executive Orders.
  • Criminal Justice Reform: Her campaign website discusses criminal justice reform, including an executive action to “ban the box” in federal hiring.
  • Social Issues: She would continue President Obama’s executive actions on LGBT equality and rights and champion this issue herself.

For Donald Trump, his proposals are a clear contrast to the current administration and emphasize what he would do differently. His proposals have also been subject to greater criticism, and some critics have raised concerns that some of these proposals could create a wider crisis in the federal government.

These proposals include:

  • Regulatory Reform: In his recent economic speech in Detroit he indicated that he would issue an Executive Order prohibiting the issuance of further federal regulations and require agencies to review existing regulations for what can be eliminated, specifically focusing on regulations he claims hamper job growth, including regulations related to the environment. This proposal was further noted in a campaign post on Facebook.
  • Immigration: As part of his more controversial proposals, his campaign website also indicates he will use regulatory power to force Mexico to pay for a wall on the border between the United States and Mexico. His other controversial immigration proposals related to Muslims could also be carried out through Executive Order, but with definite challenges to it in court.
  • Trade: His proposals on foreign trade on his campaign website also include directing the Treasury Department to designate China as a “currency manipulator,” and he would renegotiate foreign trade agreements.
  • Taxes: He would change the tax treatment of carried interest, according to a Bloomberg article.
  • Foreign Policy: He has stated that he would alter the United States’ relationship with international organizations such as the North Atlantic Treaty Organization (NATO) and the United Nations (UN).
  • Energy and Environment: He would approve the Keystone XL pipeline and pull out of or renegotiate climate change agreements.

CONCLUSION

In conclusion, criticisms of executive power will inevitably be raised against the next president, no matter who it is. While there are certainly limits on executive power, the changing role of the presidency and the ongoing gridlock in Congress make the growing use of Executive Orders in shaping public policy likely to continue.

As with many things in politics, it is important to be prepared and proactive, and anticipating future steps through exercises such as this helps to ensure the necessary actions are taken to ensure informed policy is made by decision makers.