02/09/2009 05:12 am ET Updated May 25, 2011

Executive Vigor Without Executive Arrogance II: A Primer on Executive Orders

In any entry last week, I posed the question, how can Barack Obama use whatever authority he has to undo the George W. Bush policy regime as quickly as possible without embracing Bush's obnoxious views of presidential power -- in particular, his theory of the "unitary Presidency?" My first suggestion: issue an executive order repudiating the Bush Administration practice on signing statements. Adopting a policy like this is something that can be done only at the presidential level and as an exercise of presidential discretion. However ironic the procedure may seem, President Obama, in issuing such an order, would be acting vigorously and unilaterally to undo a slice of unitary presidency practice.

Yesterday, I was privileged to participate in an American Constitution Society panel on "The Mechanics of Quick Change," which gave me a chance to elaborate further on two overarching questions: How much of an outgoing Administration's policy regime can an incoming Administration discard without Congress passing new laws? Second, what are the mechanics of discarding? Here are my general answers. On Monday, I will post what to do about them.

A New President's Power to Discard Old Policy

The Constitution and many congressional statutes allow the executive branch to follow its own best judgment in pursuing a vast range of lawful objectives. This kind of authority is what lawyers call "discretion." To the extent a former Administration's policy regime represented the exercise of discretionary decision making authority, a new Administration is entitled to exercise its own discretion in a different policy direction. In other words, every President may exercise his or her own discretion to change the discretionary decisions of prior administrations. The exceptions occur only in those limited cases where past discretionary decisions legally bind the future.

A presidential pardon is an obvious example of a discretionary decision that binds future presidents. The pardon power is a form of discretion that comes from the Constitution. If the President issues a pardon, no later President can undo it. When President George H. W. Bush pardoned the Iran-Contra defendants or President Clinton pardoned Marc Rich, these pardons caused a lot of controversy, but they were "done deals." Presidents Clinton or George W. Bush could not say: "Hold on! I'm taking those pardons back!" Under the Constitution, granting a pardon is a form of nonrevisable discretion.

On the other hand, through a statute, Congress expressly authorizes the President to establish procedures to govern federal employee access to classified information. Presidents regularly exercise such authority, but no President binds any other. President Obama is entitled to examine existing procedures for information access and decide if they need reform. He may revise them by exercising his own discretion to write a new set of procedures.

These examples thus illustrate the general principle: An incoming Administration may legally use its discretion to revise the discretionary decisions of a prior Administration, except to the extent that the law makes permanent the effects of the earlier Administration's decisions.

Executive Order Procedures

The second question is one of procedure. In some cases where a President's discretionary authority derives from a statute, the statute will dictate the form or process for the President to follow. For example, the President is required by statute to issue an executive order that reconciles certain provisions of the retirement and disability systems for the civil service and the foreign service. In implementing that statute, the President thus operates by executive order. Few presidential decisions, however, are bound by this kind of constraint.

When the President makes discretionary decisions, the form is generally up to him. Unlike federal agencies, which are covered by the Administrative Procedure Act, the President usually confronts no binding legal rule that dictates whether to proceed by executive order, proclamation, presidential memorandum, national security decision directive, presidential designation or any other documentary format. The choice of format makes no difference with regard to the legal or practical impact of the President's decision.

Public attention often focuses on Executive Orders because they are published, unless classified, and relatively formal. Executive orders are usually documents whose direct audience is the executive branch; they tell other government officials what to do. They have long been compiled in numbered serial order, which both heightens their apparent formality and makes them easier to track. If an executive order goes beyond the lawful scope of a President's discretion, it might be subject to judicial challenge. Unless the President's order is based on a statute, however, the President may not create any new rights that are enforceable in court.

Since the Kennedy Administration, an "executive order on executive orders" has provided for an informal, discretionary consultation process within the executive branch to assure both their consistency with the President's policy agenda and their lawfulness. The Office of Management and Budget, on behalf of the President, coordinates policy input into proposed executive orders; the Justice Department heads up the legal analysis. Whether to follow these procedures is again, however, up to each President. For any particular executive order, the President's failure to follow the discretionary procedures for interagency consultation would not furnish grounds for a judicial challenge.

Next: How can the President use these powers and processes to change policy directions without embracing "the unitary Presidency?"