CHAPTER 3 POLICY DIRECTIVES FROM THE OVAL OFFICE - EXECUTIVE ORDERS AND OTHER PRESIDENTIAL INSTRUMENTS

• Jurisdiction: United States

Natural Resources Development and the Administrative State: Navigating Federal Agency Regulation and Litigation
(Feb 2019)
CHAPTER 3
POLICY DIRECTIVES FROM THE OVAL OFFICE - EXECUTIVE ORDERS AND OTHER PRESIDENTIAL INSTRUMENTS ¹
Paul M. Seby
Matthew K. Tieslau
Greenberg Traurig LLP
Denver, CO

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PAUL M. SEBY is a Shareholder with Greenberg Traurig LLP, in Denver. Mr. Seby is a leading environmental and natural resources practitioner in the Rocky Mountain region, with nearly 25 years' experience analyzing a myriad of environmental issues. He has vast experience counseling clients in both responsible actions and, when necessary, prosecuting cases to enforce and overturn administrative agency regulations and decisions. He represents clients in federal and state agency proceedings and in appearances before the U.S. Supreme Court, several U.S. Courts of Appeal, and the Colorado Supreme Court, among others. His notable recent representations include litigation surrounding the EPA Clean Power Plan, Waters of the U.S. Rule, and O&G Methane regulations, and the BLM Hydraulic Fracturing and Venting and Flaring Rules. Mr. Seby counsels public and private clients in the energy, mining, manufacturing, and service industries on how to navigate and successfully operate within the complex framework of state and federal environmental regulations and policies. Bearing in mind that a successful outcome is often a combination of traditional and non-traditional legal and policy strategies, he leverages his experience to negotiate with government agencies and adversary groups. Whether a lending transaction or other business venture or issues of state sovereignty, clients across the country trust Mr. Seby to draw upon his comprehensive understanding of how government programs and agencies function to identify existing and potential pitfalls they may face in achieving their business goals. He efficiently and effectively guides his clients in developing practical, workable solutions that overcome legal and business challenges, and has been recognized for his work by many leading legal publications.

This presentation and note reviews the powers of the President of the United States, including a focus on the authority of the President to issue Executive Orders and on non-agency directives and interpretive rules. Later, that analysis considers recent executive orders issued by President Donald J. Trump, with comment on how challenges lodged against those executive orders may progress.

I. Introduction

Perhaps the most elementary principle of American constitutional doctrine is the separation of powers, with the United States Constitution dividing the federal government into the legislative, executive, and judicial branches, vesting power in the Congress, the President, and the Judiciary, respectively.² For the executive branch, the presidential powers and the executive orders used to exercise those powers central to American governance. The history of our nation is punctuated by executive orders (both favorably and unfavorably) spanning seminal acts such as: George Washington's Neutrality Proclamation; Thomas Jefferson's Louisiana Purchase; John Tyler's Assent to Annex Texas; Abraham Lincoln's Emancipation Proclamation and suspension of the writ of habeas corpus; Theodore Roosevelt's quadrupling of protected lands, including 18 national monuments, five national parks, and fifty-one wildlife refuges; Franklin D. Roosevelt's New Deal Era establishment of the Civil Works Administration, the National Labor Relations Board, and later the War Labor Board, and his internment of Japanese Americans; Harry S. Truman's desegregation of the Armed Forces; Dwight D. Eisenhower's federalization of the Arkansas National Guard during the Little Rock Central High School protests; John F. Kennedy's creation of the Peace Corps; Jimmy Carter's creation of the Federal Emergency Management Agency; and Gerald Ford's pardon of President Nixon. More recent executive orders include George W. Bush's creation the Homeland Security Department; Barack Obama's creation of the Deferred Action for Childhood Arrivals; and Donald J. Trump's

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multiple travel bans and significant directions to executive branch agencies concerning environmental and energy policy.

While the Constitution sets forth the president's executive power, it does not define the instruments by which presidents may exercise that power. Presidential exercise of the executive power has taken many forms: from delegation to cabinet members; heading policy for executive agencies; emergency declarations; and finally executive actions aimed at directing executive agency actions, the public at large, and national policy - a broad category of "executive actions" that this note will term and refer to as executive orders.

This note starts with an examination of the many and varied types of executive actions a president may undertake under the umbrella category of executive orders. Then, it moves on to a historical review of the evolution of presidents' authority to issue executive orders. Later, this note explores how the Judiciary has subsequently shaped and defined the scope of presidents' authority to issue executive orders. Finally, this note examines recent executive orders, and discusses how presidents are continuing to expand (and challenge) the limits of the executive power under the Constitution.

II. What are Executive Orders?

While presidential action is a central feature of American governance, and something that every elementary-aged schoolchild is taught, the Constitution is silent on defining executive orders. Neither Congress, Presidents, nor the Supreme Court have clearly defined and demarcated what constitutes an executive order, although the Supreme Court has commented extensively on what constitutes a valid use of the executive power.³ For example, in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court noted that "[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself."⁴ The Supreme Court went on to explain that an executive order lawfully binds the public when it "stem[s] either from an act of Congress or from the Constitution itself."⁵ Thus at the broadest level, an executive order is an order or directive that binds the executive branch or the public with the force of law.⁶

Since the ratification of the Constitution, executive actions have carried many different names and approaches. To that end, executive orders are more readily recognized by their substance, as opposed to their form. The remainder of this note will refer to the greater category of executive actions as executive orders for ease of communication - recognizing that presidents will sometimes fail to categorize actions as an executive order when they would clearly qualify as such. However, given the variability of what constitutes an executive order, it is worth examining several discrete subsets of presidential action in this section before moving on. It should be noted that regardless of the term used to describe each of these presidential actions, all

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actions are examined under and tested against the Article II powers granted to the executive branch.

A. Types of Executive Orders

At the broadest level, an executive order is a directive that purports to bind the executive branch or the public with the force of law.⁷ However, there are several subsets of executive orders that are named for their intended effects and consequences.

1. Presidential Directives

One can see scholarly articles referring to executive actions interchangeably as presidential directives. A national security directive is a further subset used to describe directives that are "a formal notification to the head of a department or other government agency informing him of a presidential decision in the field of national security affairs," generally requiring that such department or agency take some follow-up action.⁸ National security directives seek to implement and coordinate military policy, foreign policy, and other policy deemed to fall within the bounds of national security. Further, the name is not consistent across administrations, with varied names such as "National Security Action Memoranda," "National Security Secession Memoranda," and "Presidential Decision Directive."⁹

2. Presidential Proclamations

Presidential proclamations are much like they sound, a proclamation by the president that seeks to influence the conduct of private individuals (as opposed to government officials), usually with hortatory, as opposed to mandatory effect.¹⁰ Some famous early examples include President Washington's Thanksgiving Proclamation, first issued in 1789 and reissued almost every year since, and the Emancipation Proclamation issued by President Lincoln.¹¹ Proclamations are also the vehicle by which presidents grant pardons. Further, proclamations are not wholly limited to hortatory effect - the U.S. Court of Appeals for the Eighth Circuit has held that presidential proclamations will have the force and effect of law when issued pursuant to a statutory mandate or delegation of authority from Congress.¹² Thus, the distinction from an executive order is nominal when a president has rightful constitutional or delegated authority to issue the proclamation.

3. Presidential Memoranda

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Presidential memoranda are pronouncements by the president directed toward officials of the executive branch.¹³ Presidential memoranda are generally classified into presidential determinations, memoranda of disapproval, or hortatory declarations. Presidential determinations are presidential findings derived from statutory mandates regarding the status or activity of a country concerning foreign policy and generally include findings related to sanctions, development assistance or oversight activity. Memoranda of disapproval are public vetoes used by...