June 24, 2015

It’s not the # of executive actions that proves abuse

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

Over 350 well-connected attorneys, scholars and press gathered at the Mayflower Hotel in Washington, DC last Thursday for the Federalist Society’s Third Annual Executive Branch Review Conference, and many others watched the conference live stream. Most of the breakout and plenary sessions focused on different examples of executive branch abuse. The video is now archived for viewing by clicking on the session title.

It was my pleasure to moderate a session on “Congressional Responses to Presidential Overreach,” which include congressional investigations, regulatory reform laws, the appropriations power, and congressional acjapanese-internment-poster-opttions to expand judicial review of agency actions. You can watch that discussion here (beginning at 3:15), which includes remarks from Michael Bopp, Professor Jonathan Adler, Adam White, and Professor Sally Katzen.

Katzen, who is a former Carter and Clinton administration official, graciously appeared and attempted to defend the current administration. For the most part, I tried to moderate rather than comment, but I did pose one tendentious question (starting at 1:11:00) to Katzen when her fellow panelists didn’t respond to her “numbers” defense. Essentially, Katzen argued that President Obama issued fewer executive orders than other presidents, and far fewer than FDR. That dodge has always annoyed me.

Part of the reason the numbers in any category don’t matter is that administrative edicts increasingly come in many forms. New types include supposedly innocuous agency FAQs, Dear Colleague Letters, and other “guidance” documents. I offered to call them “Sallys” last Thursday, but Sally Katzen didn’t like the sound of that. Even more to the point, it doesn’t matter how many thousands of proclamations or executive orders presidents issue that are ministerial or don’t affect the rights of citizens outside the executive branch. Even a few actions, of any type, that are significantly abusive can define an administration.

Executive actions per se aren’t the problem. In the abstract, they can do much good, cause great harm and injustice, or be neither here nor there. For example, President Truman’s desegregation of the armed forces (Executive Order 9981) was a constitutional exercise of his commander-in-chief power that was admirable on many levels, and it may have even been constitutionally required to correct equal protection violations. Yet all of FDR’s wonderful executive orders (assuming there were some) don’t diminish or excuse the one that authorized the internment of Japanese Americans during World War II (Executive Order 9066), which was shameful and unconstitutional, notwithstanding that the Supreme Court upheld it during the 1940s.

Professor Katzen didn’t respond when I asked whether the content of abusive executive actions wasn’t more important than the sheer number of actions taken, but then it was really a rhetorical question that no intelligent person should dispute.

Update: As to my first point about administrative edicts coming in increasingly many forms, Prof. Josh Blackman pointed me to a USA Today story suggesting that President Obama’s use of executive memoranda is so large that his total with executive orders makes him one of the most active presidents in the last 70 years. I still think the numbers game is a distraction, but if you disagree, then Obama looks bad by multiple measures.

What to read next