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Jan. 18, 2025 21:09-21:43 - CSPAN

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Washington Journal Andrew Rudalevige

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tammy thueringer

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tammy thueringer ▲ ● ▼		Joining us now to discuss presidents and the use of executive orders is Bowdoin College government professor Andrew Rudulevich.
tammy thueringer ▲ ● ▼		Professor Rudilich, thank you so much for being with us this morning.
unidentified		Great to be with you.
tammy thueringer ▲ ● ▼		We'll start by talking about an overview of executive orders.
tammy thueringer ▲ ● ▼		Tell us what they are and what gives a president a power to use them.
unidentified		Well, executive orders are not in the Constitution explicitly, but they flow pretty directly from the president's power in Article II of the Constitution to faithfully execute the law, and of course, from the grant of the executive power to the president at the very beginning of Article II.
		Presidents have used them since the beginning of the Republic.
		Every president has issued at least one executive order, even William Henry Harrison, of course, who died very quickly after taking office.
		And so they are pretty well accepted.
		They are essentially orders to the executive branch.
		And executive orders formally are published in the Federal Register.
		They are often produced with great pomp and circumstance, but which you keep in mind, they're only one part of a whole category of executive actions and directives that presidents can use.
		These include memoranda or national security directives.
		They include even guidance documents to agencies about what kinds of regulations to issue.
		So executive orders are probably the most formal of this category of presidential directives, but there are many others and often they get mixed up together in kind of a jumble.
tammy thueringer ▲ ● ▼		This is a topic you're very familiar with.
		You're also the author of the book, By Executive Order, Bureaucratic Management and the Limits of Presidential Power.
		Oftentimes we do hear that it's a president issuing an executive order, but there is a process.
		There's a lot involved in the creation.
		Talk to us about who's involved in putting together an executive order and what the process looks like.
unidentified		Sure.
		Well, of course, the final product, what we see on TV sometimes, is the president signing and then holding up, you know, perhaps a big sharpied signature, a folder containing a new executive order.
		But there's often a long backstory to that directive.
		Anyone really can propose an executive order in the White House, out in the various executive agencies.
		For a long time, since the 1930s, there's been a process sometimes called central clearance.
		It's sort of a peer review process run by the Office of Management and Budget most often.
		And that is a managerial agency that was created back in the 1920s and really has been a key presidential agency since the 30s.
		And their job is to receive these draft executive orders from wherever they come, send them out to different agencies who might have an interest, get feedback, find out will this actually work?
		Is it legal?
		Importantly, the Department of Justice is supposed to take a look at all executive orders for, quote, form and legality to make sure that the order has been properly formatted, but also is legal under the president's powers.
		It's worth noting that an executive order can only do something that the president has the power to do, whether that power is in the Constitution directly or has been delegated to the president through an act of Congress.
		And so, you know, there are sometimes arguments about whether an executive order does, in fact, go too far.
		Those orders often will go to court, in fact.
		But the internal process is quite multilateral, right?
		We think of this as unilateral action, but it's very rarely just the president sort of sitting down to issue that order.
		There's a big bureaucratic backstory, and that's intentional.
		It's to make sure that the expertise about the subject matter of an order is actually brought to bear on the order itself.
tammy thueringer ▲ ● ▼		We are talking with Professor Andrew Radilevich.
		He is a professor of government at Bowdoin College.
		We're talking to him about the use of executive orders.
		He'll be with us for the next 40 minutes or so.
		If you have a question or comment for him, you can start calling in now the lines, Democrats 202-748-8000.
		Republicans, 202-748-8001.
		And Independents, 202-748-8002.
		Professor Rulevich wanted to ask you, you mentioned it.
		We may see it on TV, a president signing an executive order, maybe holding it up for the camera to see.
		What happens once that executive order is signed?
		When does it go into effect?
unidentified		Well, I hate to use the academic answer, but it depends.
		And it depends on what the order says.
		Sometimes they are sort of self-executing.
		You know, they might change something administratively within an agency.
		You know, not all executive orders are very big or sweeping or even substantively important.
		Or others may, you know, ask an agency to work on solving a problem and to look at an issue in sort of a whole of government sense, you know, sort of a planning to make plans kind of order.
		And so those may not have much immediate impact at all, though they do serve the purpose of a president showing that he cares about an issue and wants to take action.
		So it really depends on who's being ordered to do what in terms of what happens next.
		But we do know that presidents often complain that executive orders are not fully implemented.
		You know, obviously this is kind of hard to study because once the order leaves the public pages of the Federal Register and goes down Pennsylvania Avenue into one of the government office buildings, we don't quite see it, right, as academics or often even as members of Congress or political actors.
		So, you know, we know that not all executive orders are fully implemented.
		We know honestly that some are not meant to be fully implemented.
		Some are kind of for show.
		If you look at the text of executive orders over the last number of years, really starting with the Obama administration, but ramping up pretty significantly under Trump and then continuing under Biden, you have very long sections at the beginning of these orders that are effectively press releases, preambles or purpose or policy sections that sort of lay out what the president wants to achieve.
		And it's not always clear that it actually being achieved is the important part.
		The president wants to say, hey, I am ordering that this be done.
		And if it doesn't get done, well, there's some hope that the public might not notice that quite as dramatically.
tammy thueringer ▲ ● ▼		An executive order is enforceable as long as the action is within the president's constitutional authority.
tammy thueringer ▲ ● ▼		Give us an example of something that would fall within that and something outside that authority.
unidentified		Sure.
		Well, a common, I mean, let me just say that, again, executive orders are literally orders to the executive branch.
		So, you know, a member of the public would not receive an order from the president in that form.
		Indeed, the president doesn't have power to order you to do anything unless you're an active member of the armed services.
		But the general rule here is that presidents are relying on the power of the federal government to sort of have knock-on effects, right, that will have effects on the wider public.
		So a good example is contracting procurement, right?
		Presidents for a long time have taken advantage of the fact that the federal government buys an awful lot of stuff from the private sector to place conditions on those contracts.
		So John F. Kennedy famously in 1962 issued an executive order designed to prevent any federal contracts going to those who discriminated in the area of housing.
		And we've seen other uses of executive orders in the civil rights arena to try to sort of limit the contracts that go out.
		So if you in the private sector want federal contracts, you have to pay attention to the conditions that have been placed on that.
		So it's not a general order to the public, but it does have pretty sweeping impact when you're talking about half a trillion or more these days of funding that's going out from the federal government to the private sector.
		President Obama, for example, didn't get a minimum wage increase through Congress, but he did order the federal contracts only go to contractors who paid a certain minimum wage.
		And again, as the president is sort of contractor-in-chief, you know, that is within authority to do that unless Congress steps in and says, no, you can't.
		Or, of course, if the courts argue that the president's gone beyond his role.
		Maybe the most famous example of an order that was overturned is Harry Truman's back in the early 1950s during the Korean War.
		He had ordered that the steel mills be nationalized effectively.
		They be brought into American governmental ownership because there was a threatened strike.
		And this is the famous steel seizure case results.
		Truman had argued that a strike would really harm national security, that it would undermine the Korean war effort, and therefore, using his powers, he said as commander-in-chief, he could therefore order that the steel workers effectively became federal employees and therefore unable to strike.
		This obviously went to court.
		The Supreme Court famously ruled that, no, indeed, President Truman had overstepped his powers.
		This was not something he could do.
		And therefore, steel mills were returned to private ownership and the labor negotiations proceeded on that basis.
		So, you know, you can have some pretty high stakes, high drama concentrations over executive orders, or as I say, they can be really sort of administrative housekeeping.
		It varies quite a lot.
tammy thueringer ▲ ● ▼		We have callers waiting to ask you questions.
		We'll start with Fred in Camp Hill, Pennsylvania, line for Democrats.
		Good morning, Fred.
unidentified		Good morning.
		What I'd like to say is if a president uses executive orders to legislate his entire presidency as Donald Trump did his first presidency and intends to do it in his second, he's going to bypass the House and Senate.
		Now, if the Senate and the House are Republican and he has a Republican Supreme Court, he can get away with being a dictator.
		And I think this is something that should be stopped immediately.
		We should get rid of executive orders except in the case of environmental protection and a national emergency to protect the country, not to legislate his own personal agenda that he makes up in his campaign.
		And this is what I'd like to say, and I'd like to get his opinion on this.
		Thank you.
		Sure.
		Well, I will say a couple things.
		First, a big shout out to Campbell, Pennsylvania.
		I used to live in Carlisle up the street.
		And yeah, the charge of dictatorship is a really long-standing one.
		There was a book about Franklin Roosevelt called Roosevelt, Democrat or Dictator, you know, back in the 40s.
		In fact, when I dug into the presidential libraries for my book research, I found that there were in some administrations form letters that they had developed when people wrote in saying, hey, this is a dictatorial action that you're taking.
		And there was an explanation, not even so much of the action, but of the role of executive orders.
		Again, executive orders are only legal when they are applying actual presidential power, when they are grounded in powers the president has.
		One thing that has increased their appeal, I guess, to presidents.
		First, of course, we know that Congress finds it hard to act, especially in its current polarized version.
		But Congress has also delegated a lot of power to presidents over time.
		And so, you know, often when we'll see a president using an executive order to try to guide the actions of a federal agency, you know, they're looking back to old statutes.
		And, you know, there are plenty of those on the books.
		And some of them, honestly, should be reined in.
		You know, when you think about the National Emergencies Act, you know, that grants the president an awful lot of authority to declare a national emergency and then to issue executive orders under some statutes that are unlocked by virtue of that declaration.
		We could look at something like the Insurrection Act.
		We could look at things going back, you know, on immigration.
		When we looked at, for example, President Trump's travel ban in his first term, the first version of that, you know, that caused chaos at the beginning of 2017, was in fact sort of withdrawn, replaced.
		It had not gone through the process of bureaucratic feedback that I talked about, and it didn't work.
		It went through a couple of other iterations and finally emerged later as a proclamation, not an executive order.
		Went to the Supreme Court, and the Supreme Court said, well, this is okay because the way the law is written, I believe the phrase was, it exudes deference, unquote, to the president.
		So if Congress is going to pass laws that exude deference to the president, I think we have to accept that presidents are going to take advantage of that.
		So I would, you know, place a lot of the concern here with Congress being unwilling to fulfill its own constitutional imperatives in a lot of areas and instead handing off that power to the president.
tammy thueringer ▲ ● ▼		Professor Rudelevich, this question coming in on X from Jimbo in Bakersfield, California, he asked, he's an independent, says a voter, what happens when a legal executive order conflicts with laws in a state like California?
unidentified		Well, again, the executive order itself or any kind of federal directive is going to be to the actions of the federal government.
		There is a supremacy clause whereby if laws directly conflict, then the federal law would play out.
		But there's a lot of play in those laws.
		And, you know, we're going to see, I think, some interesting, maybe sometimes scary conflicts as we sort of running up against the bounds of federalism here.
		If you think of President Trump's stated immigration agenda, for example, and then some of the states' lack of excitement, I think it's safe to say, about that agenda, we could see efforts by the federal government to try to overrule state action, but I'm not sure that's always going to work.
		States do have a lot of autonomy over a lot of different policy areas.
		And so I think this is going to be battled out.
		But if the executive order is legal under federal law, and there is a direct conflict with state law, I believe that federal law is going to prevail in those cases.
tammy thueringer ▲ ● ▼		Let's hear from Alan in Mississippi line for Republicans.
tammy thueringer ▲ ● ▼		Good morning, Alan.
unidentified		Oh, good morning, ma'am.
unidentified		Am I on?
tammy thueringer ▲ ● ▼		Yes, go ahead, Alan.
unidentified		Oh, because the gentleman is still talking on my television.
tammy thueringer ▲ ● ▼		Oh, yeah.
		Don't pay attention to your television, Alan.
		There's a delay.
unidentified		Okay.
		Well, isn't it amazing?
		All of a sudden, now President Trump is going to become president that dictatorship of the executive orders has come to the fore.
		It's really, it's amazing how these Democrats can dig up these sort of programs.
		When President Biden became president, his first day in government was to make nonsensical executive orders regarding energy, his agenda on green peace, and put this country into a four-year flat spin down.
		Now, I'm sorry to say, says the Democrats, that President Trump is going to correct all them wrongdoings of the last four years and make America great again.
		So all you controversy regarding executive orders is just pure Democratic publicity to try and put another spike in President Trump's premiership.
		And thank you for taking my call.
tammy thueringer ▲ ● ▼		Professor.
unidentified		Yeah, well, I mean, as I mentioned, dictatorship has been a very bipartisan charge against presidents for a long time when they've used executive authority.
		And so there is indeed, you know, if you go back, let's say to the Obama administration, 2014, when Congress had gridlocked, President Obama sort of promised he'd use his pen and his phone to move an agenda forward.
		And indeed, he was accused of literally dictatorship.
		There was a report I remember from the House.
		House was Republican at that time, and the House majority leader, I believe, put forth a report called the Imperial Presidency, all drenched in black, charging Obama with overstepping his constitutional bounds.
		As I say, these are arguments that would go back to John Kennedy or Franklin Roosevelt, Richard Nixon, Ronald Reagan.
		We have had, you know, effectively, you know, whenever in the polarized state of American parties, we do have the quite strong likelihood that those who like the current president will say that issuing executive orders is a function of strong leadership, and those who don't will say it's dictatorship.
		And then when a president they like comes in, those positions will switch quite quickly and dramatically.
		I would note that a lot of what executive orders do, especially at the beginning of terms, is to revoke.
		The caller mentioned this and sort of promised that President Trump will do the same to Biden executive orders.
		I think that's probably right.
		You know, executive orders, while can be powerful, they're also fragile in the sense that they can be overturned by a subsequent president, and this happens pretty frequently.
		Some executive orders have a really long life over time, but many others, you know, only last for the duration of a presidential term and again, can be overturned.
		I think we'll see a lot of orders overturning past orders, you know, come January 20th, 21st.
tammy thueringer ▲ ● ▼		Professor Eledge, something you pointed out at the very beginning of this interview is that every president has signed executive orders.
		For anybody interested, the Federal Register has all of the executive orders issued by presidents since 1937.
		It looks like President Biden has signed 160.
		That includes 11 just this year.
		President, now President-elect Donald Trump signed 220 during his term, Obama 220 or 277, George W. Bush, 291.
		You can go on to that website, find all of them broken down by year, and read what each of those are.
		We'll hear next from Judy in Phoenix, Arizona, Line for Democrats.
		Good morning, Judy.
unidentified		Hey.
		I don't have access to internet, but I was watching on the news within the past week or so Chiron at the bottom of the screen saying that Biden had announced a major opinion that the ERA is ratified, enshrining its protections into the Constitution, a last-minute move that some believe could pave the way to bolstering reproductive rights.
		Does that have anything to do with your topic right now?
		Well, in a way it does, because as I said earlier, a lot of things that presidents do that are executive actions are not specifically executive orders.
		And often they get sort of jumbled up every time the president directs something.
		It's an order after all.
		And so it makes sense sort of colloquially to talk about a lot of things as executive orders that aren't.
		You know, a lot of things happen through regulation in the different government agencies, and those are not conducted by executive order.
		You know, even some of the things that we sort of, again, automatically think of as executive orders, DACA, for example, issued by President Obama.
		That was not an executive order.
		In fact, there's not even a presidential document technically associated with it.
		It was done by the Department of Homeland Security, obviously at the behest of the White House.
		So it's not unfair to talk about it as an executive directive, but it's not an order.
		So the statement on the ERA that President Biden issued recently is sort of in this category.
		It's a statement, not an executive order.
		It's not going to be in that numbered category of federal registered pages that was just referred to.
		It's a statement saying that he believes that the Equal Rights Amendment was in fact ratified, that sufficient states had ratified it and that he thinks it should be therefore part of the Constitution.
		That doesn't make it so.
		It's sort of an intriguing claim to make a few days before leaving office.
		And there are certainly legal scholars who agree that the deadline that Congress placed on the ratification of what would be the 28th Amendment, the ERA, the Congress didn't have the authority to place a deadline on that ratification.
		38 states needed was only reached quite a ways after the statutory deadline that Congress had placed.
		And by the way, some other states had decided they didn't want to ratify it, too.
		So it's very far from being a clear issue.
		I suspect that President Biden's action in this case, right, is what I sort of referred to as almost a press release kind of order.
		It's a statement of belief.
		It's not, I don't think, going to have a lot of practical impact.
tammy thueringer ▲ ● ▼		Let's hear from Dave in Hale, Michigan, line for independence.
tammy thueringer ▲ ● ▼		Good morning, Dave.
unidentified		Good morning.
unidentified		Can you hear me?
tammy thueringer ▲ ● ▼		Yes, Dave.
unidentified		Okay, thank you.
		Andrew, I kind of touched on what I was going to get at.
		Who has the right to do amendments and at what length of time is there?
		Time frames on these and what can be amended when it's reviewed and legalized.
		And basically, you know where I'm getting at with that.
		So just I'll let you carry on with that.
		That's all I got.
		All right.
		Well, this is, again, not technically an executive order, but the process for amending the Constitution is in Article 5 of the Constitution.
		Usually, in all our cases so far, in fact, it's come first through Congress.
		A supermajority of Congress is required to vote on a resolution that then sends the proposed amendments to the states.
		And then you need three-quarters of the states to sign off on that as well.
		And, you know, there have been some amendments that have reached that level of ratification after a very long time.
		In fact, the 27th Amendment was originally sent out to the states as part of the Bill of Rights.
		There were 12 amendments sent out way back in 1789, and only 10 of them became the Bill of Rights.
		One of the extras was sort of rediscovered years later.
		This is the 27th Amendment, which I know I don't need to explain to C-SPAN viewers, but for those just casually tuning in, makes sure that there's an election intervening between a congressional vote to raise their pay and the actual pay raise so that voters can weigh in.
		And that was adopted, I think, 1992 or something like that.
		You know, again, long, long after it had been provided.
		But in the case of the Equal Rights Amendment, when Congress approved it, they put a deadline on the ratification.
		They said if it's not approved within seven years, then the ratification is over.
		That's your time window for states to act.
		It didn't get to that level.
		When Jimmy Carter was in office, he proposed extending that deadline.
		It was extended, I think, to 1982.
		And again, not enough states got to that point by the deadline.
		And so the amendment has been considered null and void, right?
		It didn't become part of the Constitution.
		There has been some argument about sort of what makes it part.
		And the legal process technically is that the archivist of the United States, she does not have power to do anything on her own.
		But when she receives the requisite number of certificates from states saying they've ratified, then we'd say, okay, yeah, it's done.
		It's official.
		It's now part of the document.
		My understanding is that the Office of Legal Counsel and the Department of Justice has said that, in fact, no, that's not the case with regards to the ERA.
		And so I think even President Biden's statement yesterday doesn't change that position.
		There was no new guidance.
		Normally, as I say, it's pretty clear.
		You get to the right number of states and you know you're done.
		But at this point, that hasn't been the case.
tammy thueringer ▲ ● ▼		Bill in Albany, New York, line for Republicans.
tammy thueringer ▲ ● ▼		Good morning, Bill.
unidentified		Good morning.
		I'd like to ask your guest, Andrew, regarding executive orders, please.
		I looked up when President Biden put the pause on drilling of oil.
		If you could help me out with that, because when I read it, it's you know, there's a lot of legal terms in there that I wasn't sure of.
		But I did see that I wanted to know if that POWES executive order is still on the books for not drilling whether it's private or public land.
		I couldn't really see that because I feel that when that went on, that's when the price of gas went up and that's when we started getting inflation because the trucks that delivered things to the food, to the stores, and they had to raise their prices dramatically, almost doubled or tripled the price of gas and we had inflation.
		Is that executive order still on the books, sir?
		And if it is, what did it do?
		And what does it say regarding inflation and gas?
		And do you think President Trump can reverse that and get it off there on Monday?
		Yeah, well, there's definitely, I mean, so, as you know, President Biden has been, has tried to limit offshore drilling.
		And I think there was a subsequent order, you know, in the last couple of weeks that in fact expanded the ban on offshore drilling, though it's worth noting that American domestic oil production is actually way up overall over the last number of years.
		So it hasn't affected the overall supply of oil, I think, so much as it has affected where companies can look for it.
		Going back to the original order, though, yeah, I mean, these are basically Congress often passes pretty broad statutes that then give the president discretion to decide on the specifics.
		You know, sometimes that power is granted directly to an agency or department.
		Sometimes in this case, it might be the Department of Energy to issue regulations about how and when drilling might be allowed in certain places.
		Often, as I suggested, there'll be interagency discussion because obviously the Department of Interior and NOAA and others might have an interest, especially as you get out into public waterways about how that might work.
		And yeah, I mean, would apply almost certainly only to public land, but of course, as you get far enough offshore, it's all public.
		So there is a, I think the order, as far as I know, is still on the books.
		And there will be a process set in law for a future president to rescind that should he desire to do so.
		And certainly President Trump has talked quite eagerly about rolling back that order and other things that he sees as limits on fossil fuel production.
tammy thueringer ▲ ● ▼		Professor Riddletch, what are some other ways that executive orders can be rolled back, can be revoked?
unidentified		Well, they can be revoked by congressional action, right?
		Congress could say, no, we don't like what you've done.
		And so we could directly overturn that order in statute.
		Or, again, they could rein in some of the broad delegation and discretion that they had granted a president earlier.
		And that can certainly happen when they decide, well, now I see what you can do with the discretion that we gave you.
		I think we'd better shift that and rein it in.
		Again, presidents have a little bit of an advantage here because they can act, whereas Congress has collective action difficulties and often takes a while to act, but it can happen.
		Also, of course, courts can weigh in.
		Executive orders are effectively instruments for executing the law.
		President is commanded in the Constitution to faithfully execute the law.
		And often, of course, in our system, the courts get to decide whether a particular kind of implementation is faithful with the text of the statute or not.
		And they have weighed in lots of different ways.
		Saw this was not technically an executive order, but President Biden's efforts, for example, to forgive student debt through some older statutes that they had found governing Education Department discretion in this regard.
		You know, that quite famously was sort of dismissed by the courts, the courts said.
		Now, that's not what the statute was meant to be used for.
		And so, that's a pretty common process as well.
		So, besides presidents revoking their own predecessors' orders, Congress and the courts both have a way to weigh in as well.
tammy thueringer ▲ ● ▼		Jonathan in Connecticut, Line for Democrats.
tammy thueringer ▲ ● ▼		Good morning, Jonathan.
unidentified		Good morning.
		Thank you for C-SPAN.
		Thanks for taking my question.
		I'm a federal employee with Social Security, and the Commissioner Martin O'Neill signed an agreement to lock in our telework as it stands now.
		Two-part question: Could you talk about the limits and/or the ability of the president to renounce that through executive order?
		And then, also, the other strategy I've heard of is that if you want to work from home, you'll be paid at the all-of-United States rate, which does not include things like New York pay.
		Thank you very much.
		Yeah, I think actually dealings with the Civil Service and the Civil Service Act are going to be really interesting to watch play forward in the next few years.
		You know, obviously, the outgoing president, much more sympathetic, I think, to collective bargaining, certainly by government employees than the incoming president.
		And so, it will be interesting to see what actions are taken to try to overturn some of the ways that the Biden administration has sought to bolster some of the agreements reached with federal employee unions.
		I'm not an expert specifically on the telework question.
		I've heard that mentioned as a possible way to try to sort of give employees incentives or to bludgeon them, honestly, into coming back into the office full time.
		There are obviously a whole myriad of regulations that come out of the Office of Personnel Management.

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