Executive Orders

EXECUTIVE ORDERS

WEDNESDAY, OCTOBER 27, 1999

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON LEGISLATIVE AND BUDGET PROCESS,

COMMITTEE ON RULES,

Washington, DC.

The subcommittee met, pursuant to call, at 10:00 a.m., in room H-313, the Capitol, Hon. Porter J. Goss (chairman of the subcommittee) presiding.

Mr. Goss. The subcommittee will come to order. I want to advise all members and witnesses before we begin that the audio from today's hearing will be placed on the Rules Committee Web site, which is why we are using these microphones. And also advise that the full transcript and witness testimony will be available on the Web site.

Having said that, I want to welcome our witnesses to what I hope will be an important original jurisdiction hearing of the Subcommittee on Legislative and Budget Process. Our subcommittee's jurisdiction, which is most often associated with topics related to the budget process, also includes responsibility for reviewing matters of concern about the relationship between the legislative and the executive branches, a matter of some concern inside the Beltway and, hopefully, outside the Beltway, too.

In my relatively short tenure on this committee, I recall that my predecessor in this position, the distinguished former member from South Carolina, Butler Derrick, used the jurisdiction of our subcommittee to consider the important issue of the pocket veto.

In that tradition, we are here today to consider the subject of executive orders and the manner in which they impact on the legislative process. Executive orders are, at their simplest, meant to be instructions by the President to his subordinates. In their most benign form, they are management tools, means by which a chief executive can establish conformity and consistency across the many far-flung elements of his or her administration. Yet things have rarely been that simple in the realm of Federal governance.

Since the first executive order was issued in 1789 by President George Washington, there have been occasions where orders issued by the President have engendered public debate and controversy, sometimes leading to congressional or judicial reaction. We have seen this trend increase in recent decades as the scope and reach of the Federal Government have broadened, increasing the probability that policies implemented across the entire executive branch end up impacting the lives of the citizenry. Some have termed the active use of executive order "executive lawmaking".

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It also appears to me that we have encountered significant creativity and ingenuity on the part of Presidents to use executive orders to advance their agendas when the legislative process has proven unwilling or unable to yield the desired results. Members may recall that as Ronald Reagan was preparing the take office as President in 1981 the Heritage Foundation published a book entitled, quote, "Mandate for Leadership," unquote, which included a list of proposals to implement more conservative policies through executive order. That list comprised 22 areas of policy, covering a broad range of issues and controversies.

On the flip side of the ideological spectrum, we can note that it was a senior advisor to President Clinton who summed up the tremendous power of the President to make policy via executive order when he said, and I quote, "Stroke of the pen, law of the land, kind of cool," unquote.

When you consider the topic of executive orders, there are almost as many subject areas possible under this heading as there are policies of the Federal Government, and that's a lot. Executive orders have touched upon a broad range of issue areas, and I know that we will get into some of those specific cases as we proceed today.

I should point out that there is a whole category of executive orders relating to implementing policies for our national security, an area of particular concern to me. Today, these are known as presidential decision directives, or PDDs, and they are mostly classified due to their sensitive content.

I wish to assure my colleagues that as chairman of the Intelligence Committee I know that congressional oversight in this area is vigorous and thorough, and in fact we spend an awful lot of time focused on those PDDs. We have chosen for a starting point in today's hearing the broader view.

We are looking at the process of executive orders: Where do they come from and under what authority are they issued? What are the procedures undertaken by the various elements of the executive branch with responsibility for executive orders? What have the trends been over recent history with respect to executive orders? To what extent does the public need to know or even care about executive orders? What is the proper role of the Congress in guarding their legislative prerogatives? And how well has Congress been doing in conducting oversight in this area? Obviously there are additional questions, but these are questions to guide our discussions today.

These are some of the questions that we have directed to our witnesses, and I am grateful for their participation.

We will start off with a panel of experts. First, we'll hear from Douglas Cox who is currently a partner at the law firm of Gibson, Dunn and Crutcher and formerly was the Principal Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice under President Bush.

Joining him on this panel is Neil Kinkopf, who until 1997 served as Special Assistant in the Office of Legal Counsel at the Department of Justice and currently teaches law at Georgia State University.

We also have Robert Bedell, whose career at OMB included serving as Administrator of the Office of Federal Procurement Policy, Deputy and Acting Administrator of the Office of Information and Regulatory Affairs, and Deputy and Acting Counsel of the OMB. Bob's tenure spanned 15 years and four Presidents, and today he is the President of the RPB Government Affairs Company.

Lastly on this panel we will hear from Tom Sargentich, currently Professor of Constitutional and Administrative Law at the Washington College of Law at American University. Tom formerly served as a Senior Attorney Advisor in the Office of Legal Counsel at the Department of Justice under Presidents Carter and Reagan. We will then hear from William Olson, who has just completed a study for CATO on the issue of executive orders; and we will conclude the hearing with a presentation by Raymond Mosley, the Director of the Office of the Federal Register at the National Archives and Records Administration. I am particularly interested in this subject.

I would like to note that we have extended to the Clinton administration, through our minority, the opportunity to participate in today's hearing. Our staff has told us this offering was declined, which is certainly their right. Perhaps as this project of review proceeds, they will wish to become involved in sharing their thoughts on some of these important matters; and I hope so.

Before I turn to our witnesses, I also want to advise members that this topic is one of interest to many of our House colleagues. In fact, I understand that the House Judiciary Committee's Subcommittee on Commercial and Administrative Law has scheduled a hearing on executive orders for tomorrow. They plan to consider two legislative proposals that have been introduced on this subject, that I am aware of; and there, in fact, may be more than those two. At this time, in the absence of our ranking member, Mr. Frost, it gives me pleasure to yield to the distinguished chairman of the Rules Committee, the Honorable David Dreier of California, without whose support and interest this subcommittee hearing would not have been possible.

[The statement of Mr. Goss follows:]

PREPARED STATEMENT OF THE HONORABLE PORTER J. GOSS, A REPRESENTATIVE IN CONGRESS FROM FLORIDA

The subcommittee will come to order. Welcome to an important original jurisdiction hearing of the subcommittee on legislative and budget process. Our Subcommittee's jurisdiction, which is most often associated with topics related to the budget process, also includes responsibility for reviewing matters of concern about the relationship between the legislative and executive branches.

In my relatively short tenure on this committee, I recall that my predecessor in this position-the distinguished former member from South Carolina, Butler Derrick-used the jurisdiction of our subcommittee to consider the important issue of the pocket veto.

In that tradition, we are here today to consider the subject of executive orders and the manner in which they impact on the legislative process.

Executive orders are at their simplest meant to be instructions by the president to his subordinates. In their most benign form, they are management tools, means by which a chief executive can establish conformity and consistency across the many far-flung elements of his administration.

Yet things have rarely been that simple in the realm of federal governance. Since the first executive order was issued in 1789 by President George Washington, there have been occasions where orders issued by the president have engendered public debate and controversy, sometimes leading to congressional or judicial reaction. We have seen this trend increase in recent decades, as the scope and reach of the federal government has broadened-increasing the probability that policies implemented across the entire executive branch end up impacting upon the lives of the citizenry. Some have termed the active use of executive order "executive lawmaking."

It also appears to me that we have encountered significant creativity and ingenuity on the part of presidents to use executive orders to advance their agendas when the legislative process has proven unwilling or unable to yield the desired results. Members may recall that, as Ronald Reagan was preparing to take office_as president in 1981, the Heritage Foundation published a book entitled Mandate For Leadership, which included a list of proposals to implement more conservative policies through executive order. That list comprised 22 areas of policy, covering a broad range of issues and controversies. On the flip side of the ideological spectrum, we can note that it was a senior adviser to President Clinton who summed up the tremendous power of the president to make policy via executive order when he said "stroke of the pen, law of the land. Kind of cool."

Additionally, a by-product of modern technology appears to have been greater public awareness of and interest in the unilateral actions taken by the executive. Today we have cable television, talk radio, and the Internet as means to provide unprecedented access to a wealth of information for the average citizen with an interest. I have found in recent years that more and more of the people I represent in southwest Florida are contacting me to discuss concerns with executive orders. When you consider the topic of executive orders there are almost as many subject areas possible under this heading as there are policies of the federal government. Executive orders have touched upon a broad range of issue areas, and I know that we will get into some of those specific cases as we proceed today. I should point out that there is a whole category of executive orders relating to implementing policies for our national security. Today these are known as Presidential Decision Directives-or P-D-D's-and they are mostly classified due to their sensitive content. I wish to ensure my colleagues that, as Chairman of the Intelligence Committee, I know that congressional oversight in this area is vigorous and thorough.

We have chosen for our starting point in today's hearing the broader view: we are looking at the process of executive orders-where do they come from and under what authority are they issued? What are the procedures undertaken by the various elements of the executive branch with responsibility for executive orders? What have the trends been over recent history with respect to executive orders? To what extent does the public need to know or even care about executive orders? What is the proper role of the congress in guarding its legislative prerogatives? And, how well has Congress been doing in conducting oversight in this area?

These are some of the questions that we have directed to our witnesses today. I am grateful for their participation.

We'll start off with a panel of experts-first we'll hear from Douglas Cox, who is currently a partner at the law firm Gibson, Dunn and Crutcher and formerly was principal deputy assistant attorney general in the Office of Legal Counsel at DoJ under President Bush. Joining him on this panel is Neil Kinkopf, who until 1997 served as special assistant in the Office of Legal Counsel at DoJ and currently teaches law at Georgia State University. We also have Robert Bedell, whose career at OMB included serving as administrator of the Office of Federal Procurement Policy, deputy and acting administrator of the Office of Information and Regulatory Affairs, and deputy and acting general counsel of the OMB. Bob's tenure spanned 15 years and four presidents and today he is the president of the RPB Government Affairs Company. Lastly on this panel we will hear from Tom Sargentich, currently professor of constitutional and administrative law at the Washington College of Law

at American University. Tom formerly served as a senior attorney advisor in the office of legal counsel at DoJ under Presidents Carter and Reagan.

We will then hear from William Olson who has just completed a study for CATO on the issue of executive orders. And we'll conclude the hearing with a presentation by Raymond Mosley, the director of the Office of the Federal Register at the National Archives and Records Administration.

I would like to note that we had extended to the Clinton Administration, through our minority, the opportunity to participate in today's hearing. Our staff was told this offer was declined, which is certainly their right. Perhaps as this project of review proceeds, they will wish to become involved in sharing their thoughts on some of these important issues.

Before I turn to our witnesses, I also want to advise members that this topic_is one of interest to many of our house colleagues. In fact, I understand the House Judiciary Committee's Subcommittee on Commercial and Administrative Law has scheduled a hearing on executive orders for tomorrow. They plan to consider two legislative proposals that have been introduced on this subject.

Mr. DREIER. Thank you very much, Mr. Chairman.

I would say at the outset that I think it is more than kind of cool that you are holding this hearing, and I believe that this is an issue which is, in fact, gaining widespread public interest. Late last night, after I had left here, I went through my three weekly magazines and picked the Washington Whispers column of this week's U.S. News and World Report. After I read about George Bush and the stinginess of the campaign and several other things, I got to an item called "Project Podesta," which says, "White House Chief of Staff John Podesta, frustrated with the balky Republican Congress, thinks it is time for President Clinton to show who's boss," how Clinton plans a series of executive orders and changes to Federal rules that he can sign into law without first getting the okay from GOP naysayers. Since it is Podesta's idea, aides have dubbed it "Project Podesta."

The namesake told our Kenneth T. Walsh, quote, "There is a pretty wide sweep of things we are looking to do and we are going to be very aggressive in pursuing it. Up first, new rules to protect medical privacy and health records and providing paid leave for parents to take care of their newborns.".

Now, obviously many of these things are very well intended, but it does seem to me that, as they go further than even those things that we have authorized here, that we need to take a very close look at this issue. I will say that at the beginning of the 106th Congress, I worked closely with Speaker Hastert in trying to expand Congress' involvement in programmatic and policy oversight, which is a very important constitutional responsibility which we hold here, and it is often forgotten.

Frankly, executive orders are a significant and yet less frequently examined tool for carrying out legislative intent. That's one of the reasons that this hearing is so important. And even though I raised this issue that was in this week's news magazine, I would like to say that we are not with this hearing focusing on one particular executive order or one particular administration, quite frankly-but we just want to better understand the very important relationship, as it was envisaged by the Founders, between the executive and the legislative branches.

The President's executive order authority is not something that we seek to undermine at all. As I said, we are not focused on the actions of just one President. We do want to make sure that executive orders continue to be written with the appropriate constitu

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