My last two posts focused on whether a newly inaugurated President Obama can move energetically to displace Bush-era policy without embracing a radical theory of the unitary presidency. Having reviewed the permissible scope and usual process for executive orders in general, I here offer three specific suggestions for shifting policy gears quickly without lending sustenance to "unitary presidency" ideology:
Step 1: Limiting Presidential Orders
Administrations can radically change policy without presidential orders. Consider, for example, the overall coordination of the federal regulatory process. Since the Ford Administration, every President has issued one or more executive orders imposing some form of oversight or coordination within the executive branch for administrative rule making activity. Fairly modest Ford and Carter orders were supplanted by an ambitious Reagan order, which was, in turn, significantly amended by President Clinton. With very limited exceptions, however, President George W. Bush kept the Clinton order intact. How could this be? Surely, the regulatory approaches of the two Administrations were dramatically different. How could the most conservative presidential Administration in recent history live with a regulatory coordination structure created by a left-of-center Democrat?
The answer is that the Bush Office of Management and Budget and its Office of Information and Regulatory Affairs issued a series of memoranda and so-called "circulars" over the years that guided executive agencies in their compliance with the Clinton order. These documents, none of which was actually signed by President Bush, effectively steered the Administration towards a policy stance far more hostile to regulation than was President Clinton.
In the same vein, within hours of taking office in 2001, Andrew Card, President Bush's chief of staff, issued a memorandum to the heads of all agencies, which essentially imposed a moratorium on the implementation of any regulation proposed initially by the Clinton Administration. (Leon Panetta issued a similar memo when President Clinton succeeded President George H. W. Bush; when President Reagan succeeded President Carter, he issued such a memo over his own signature.) Among other things, the Card memorandum put a stop to OMB review of any proposed regulation not yet sent to the Federal Register unless and until it was approved by an appointee of the new Administration. This White House memorandum marked as effective a change in direction as a new executive order.
Following these examples, an Obama Administration does not have to put a presidential signature on each and every order that signals a change in executive branch policy. Allow lower level administrators to take the lead, consistent with President Obama's overall policy direction and supervision, in implementing the new policy orientation. Let the new head of the Office of Information and Regulatory Affairs revise or eliminate any Bush-era "memoranda" or "circulars" that stand in the way of improved environmental, health and safety regulation. Let the new Attorney General revise the Justice Department's FOIA litigation policy to restore the Janet Reno policy of not defending agency nondisclosure where making a record public would work no harm to the public interest. Every agency head will have opportunities of this sort and should take them promptly. If the President has chosen his principal officers well, we can have policy coherence without presidential dictation.
Step 2: Executive Orders to Empower Subordinates
Even when an executive order is needed to change policy, President Obama may issue those executive orders in a way that empowers other officials. On August 9, 2001, President Bush issued a statement dictating federal policy on the funding of stem cell research. It limited such funding to research on existing stem cell lines. In 2007, President Bush issued an executive order formalizing his policy that said, among other things, "[H]uman embryos and fetuses, as living members of the human species, are not raw materials to be exploited or commodities to be bought and sold." These orders are objectionable not only because of their substance, but because no statute vests authority in the President to make decisions about the federal funding of medical research. Decisions regarding federal funding for research under the auspices of the National Institutes of Health are delegated by Congress to the Director of NIH, under the legally authorized supervision of the Secretary for Health and Human Services.
Candidate Obama promised a change in federal policy on stem cell research. His designation of Tom Daschle to head HHS presumably reflects his determination to change policy. The existence of President Bush's memorandum and executive order effectively necessitates some form of document from President Obama to undo the Bush policy.
A new Obama executive order, however, does not have to dictate the guidelines HHS should follow. President Obama can simply direct Secretary Daschle to work with NIH to formulate federal funding guidelines consistent with their statutory obligations and the current state of both ethical and scientific knowledge. That's why we have cabinet Secretaries. Having chosen a distinguished team, the new President, in my opinion, should let them take the lead in fulfilling those mandates Congress has vested in them. That would be exercising presidential discretion in favor of what I would call a "checks and balances presidency."
Step 3: Ask for Congress's Help
A final thing the new President can do is ask for Congress's help in undoing the Bush policy regime. As is now being well publicized, the Bush Administration is offering as a parting gift to the republic a cartload of last-minute regulations intended to embed right-wing policy as long as possible after the Administration's expiration date. The good news is that many such rules will not have legally taken effect by January 20, 2009. The bad news is that undoing many of them may require either cumbersome procedures within the executive branch or Congress's use on a case-by-case basis of a fast-track veto procedure under the arcane Congressional Review Act.
Here's something President-elect Obama can do to help make Congress an effective partner in collaborating on the exorcism of Bush-era policymaking. Ask Congress to pass a law that delays until July 1, 2009 the effective date of any rule published before January 20, 2009 but that would become legally effective under existing law only after January 20, 2009. Rules specifically mandated by statute or judicial order would be exempted. Congress would also allow any agency head confirmed by the Senate after January 20, 2009 or expressly retained by President Obama from the previous Administration to move up the effective date of any rule covered by the statute upon that official's personal review of the rule.
In other words, the Obama Administration could accelerate any Bush era rule with which it actually agrees, but would have five months to undo any regulations at odds with the new Administration's policy direction. In the meantime, no one in the private sector will have relied upon or invested in compliance with any Bush "midnight rule."
By enlisting Congress in the process of shifting policy gears quickly, President Obama can take another major step towards restoring checks and balances. He can reaffirm that even quick, energetic change can entail multiple authorities - it is not just the job of the President.