Administrative Policy Tools - Executive Orders Flashcards
1
Q
Executive Orders - History
A
- George Washington issued the first one
- FDR issued the most (4 terms, over 3,500 EOs)
- Woodrow Wilson issued second-most
2
Q
Actions That Have Been Done Through EO
A
- suspending the writ of habeas corpus
- desegregating the armed forces
- barring discrimination by federal contractors
Overall point was that EOs have been used to do some pretty big things -> can’t judge the authority by the size of the action
3
Q
Categories of What President Does Through Executive Order
A
- regulating federal employees
- if there’s a statutory hook, can get agencies to regulate behavior of private actors
- organizing the executive branch (ex: OIRA was created by executive order)
- create commissions
- coordinate among executive branch agencies
- policy-making internally - setting priorities for cabinet agencies (line on how directive President can be)
4
Q
EOs and Private Actors
A
Pres can issue EOs to impact behavior of private actors (though these tend to be the most controversial ones)
- procurement often carried out through Executive Order
- statutes sometimes provide a hook for regulating private actors by executive order
5
Q
Youngstown - Factual Background
A
- US in middle of Korean War
- US Steelworkers Union - very powerful at the time, about to go on strike
- before the strike, Truman issues EO saying steel indispensable to the war effort (would impact national defense) + seizes control of steel mills
- Pres does notify Congress next morning + again 12 days later, but they don’t respond
- steel companies comply, but sue (say action not authorized by statute or Constitution)
6
Q
Youngstown - Aggregate Power
A
- President Truman had tried to argue in part that the authority he invoked was within his aggregate power as the chief executive under the Constitution
- Prof noted in class relevance of dire circumstances to the aggregate power argument - concept that on some level, might expect President to have power to address emergencies
- powers of Commander in Chief + Article II Take Care power
- Court ultimately doesn’t buy this though - can’t bundle together to create a new power
7
Q
Youngstown - Jackson Concurrence
A
- Prof said this = clearest articulation for assessing validity of Executive Orders
- Prof also noted his “art of governing” passage - concept that the way the Pres exercises power will be influenced how other branches exercise their power
8
Q
Youngstown - Jackson Level 1
A
- Congress has expressly authorized something -> Pres power at its max
- President acting pursuant to express or implied authorization of Congress
- power includes all Presidential power plus everything Congress can delegate
9
Q
Youngstown - Jackson Level 2
A
- Congress is silent - “zone of twilight”
- Pres needs to rely on own power, but may be area in which Pres + Congress both have power + Congressional quiescence may enable/invite Pres action to determine where the lines between these powers lies
- Congressional inertial, indifference, or acquiescence may sometimes enable (if not invite) measures on independent presidential responsibility
10
Q
Youngstown - Jackson Level 3
A
- Congress has spoken against what Pres is doing
- “lowest ebb” - can rely only on Presidential Constitutional powers minus any constitutional powers of Congress over the matter
- SCOTUS can sustain exclusive Pres control in such a case only by disabling Congress from acting upon a subject… Presidential claim to a power so conclusive + preclusive must be scrutinized w/ caution bc equilibrium of our US Constitutional system is at stake
11
Q
Youngstown - Which Category?
A
- 3 - Taft-Hartley Act says what happens in labor management relations, + there’s already leg on when fed gov can seize private property for public interest
12
Q
Youngstown - Jackson’s Concern
A
- thought monarchy if Truman prevailed - all exec power of which gov capable in Pres, allow Pres to use military + domestic affairs to seize power
13
Q
Youngstown - Advice to Congress
A
- Prof noted Jackson emphasizes Congress should act in emergencies so President doesn’t feel the need to grab more power
- need to be “wise + timely” in meeting problems
- only Congress can prevent its own power from slipping through its grasp
14
Q
Youngstown - Black Opinion
A
- opinion of the court
- argued Pres power must come from act of Congress or US Constitution -> no power here b/c contradicting Congressional statute, + determined exceeded Constitutional power
15
Q
Youngstown - Frankfurter Concurrence
A
-Issue before us can be met without attempting to define President’s powers comprehensively
-Congress expressed its will to withhold this power from president
16
Q
Youngstown - Vinson Dissent
A
- frustrated w/ “messenger-boy” conception of the Executive
17
Q
EOs - Source of Authority
A
- Presidential authority to issue EOs is definitely constrained (Youngstown), but Presidents often issue EOs w/o specifying source of authority (typically use language along the lines of “authority vested in me as President of the United States by the Constitution and laws of the United States”)
- Prof noted different from APA (concise statement of basis and purpose)
Rationale:
- leaves open options for authority
- not wanting to give up power
- leaves room for post hoc rationalizations (act now, explain later)
18
Q
EOs and Judicial Review Post-Youngstown
A
- Youngstown was 1st time SCOTUS invalidated an EO, but not another one invalidated until the Clinton administration
- Prof framed this as court not really wanting to reign in EOs yet
19
Q
Manhattan-Bronx Postal Union v. Gronouski - Factual Background
A
- 1965, DC Circuit
- Pres Kennedy affording collective bargaining rights to federal employees for the first time (solely an instance of Pres organizing the fed family)
- case deals w/ a system set up for carrying out Executive Order 10988, which grew out of Kennedy’s Task Force on Employee-Management Relations in Federal Service - this system (Temporary Commission on Implementation established it) says union can only be recognized as exclusive rep if 60% of employees vote in the election
20
Q
Manhattan-Bronx - Challenge
A
- the union is suing the Postmaster General for refusing to waive the 60% rule (was allowed under special circumstances)
21
Q
Manhattan-Bronx - Ruling + Reasoning
A
- ct dismisses for lack of jurisdiction
-Exec Order 10988 = formulation of broad policy by President for guidance of federal employing agencies
-> No specific foundation in congressional action
-> Could’ve withdrawn at any time for any reason
-> Represented one president’s effort to move in direction he was advised to improve efficiency of federal employment -> No hard/fast directives imposed + left large areas for exercise of discretion - President did not undertake to create any role for judiciary in implementation of this policy
-> Postmaster General decided to follow advice of President’s Temporary Committee to apply 60% rule and this does not seem in conflict with the Exec Order
-> Even if it conflicted with Exec Order, it does not follow that appellants have right that warrants intervention by an equity court
-Congress gave district court many functions but this does not include policing the faithful execution of Presidential policies by presidential appointees
22
Q
Manhattan-Bronx - Prof’s Takeaways
A
- can’t challenge an EO that’s strictly internal to how executive branch works
- if you have a problem w/ the EO, you need to complain to the executive (problem w/in exec branch must be addressed by the exec branch)
- Note to self - should contemplate how this influences appeal of this option as a policy tool (if you’re in exec branch + you issue EO influencing only your own emps, can’t be challenged)
23
Q
Manhattan-Bronx - Reviewability of the kind of EO at issue?
A
- not creating any legal rights or obligations - no agency action for review until an agency itself acts
- Pres is NOT an agency under the APA + therefore exec’s own actions are not subject to APA review (no APA private right of action when Pres acts)
-> no “final agency action” to challenge
-> inaction becomes protective b/c nothing to challenge
24
Q
Significance of Manhattan-Bronx Style EOs
A
- Prof said internal organization ones are very common but not all that legally significant (Pres could theoretically call a cabinet secretary)
- underlying purpose typically signaling to the public
-> responding to concerns of key constituencies
-> performative aspect- photo op, signing ceremony
-> shaming Congress for not doing stuff
-> “feeding the beast”
25
Q
Rochelle Wolensky (Guest)
A
- lots of time spent testifying in front of Congress
- concern that you could lose in a court case that would take away the authority forever
- challenge of wanting to regulate/make decisions/advise public on measures quickly
- pressure to adopt measures that don’t actually do much from a public health standpoint
- balance of what will stand up legally vs what might buy you time
- difficult line between science + policy
- data issues
26
Q
EO 13987 (Pandemic)
A
- organizing admin. to respond
- creates position of Coordinator of the COVID-19 Response
- authority invoked is just the general “authority vested in me as President”
- coordinating + creating, all staying w/in White House
27
Q
EO 13995 (Pandemic)
A
- starting to reach beyond Executive Branch, but doesn’t touch private sector all that much -> likelihood of challenges relatively low
- sets up COVID-19 Health Equity Task Force
28
Q
EO 13999 (Pandemic)
A
- Protecting Worker Safety and Health
- states different things that OSHA has to do (consider, review, coordinate)
- “shall issue” guidance, but “consider” Emergency Temporary Standard (difference in mandate - one more obligatory)
-> able to be more forceful w/ guidance b/c less likely to be challenged - also get a bit more info on Pres. authority (invoking OSHA Act)
-> putting in motion things that will have consequences in the private sector -> need to be more cautious re what admin law standards will be applied to the ultimate actions
29
Q
EO 13945 (Pandemic)
A
- “Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners”
- “shall consider”, “shall identify” -> leaving room for agency to make the final decision
- authority - still only relying on “vested in me”
- category = the most intrusive one
30
Q
Alabama Association of Realtors - Factual Background Timeline
A
- CARES Act - eviction moratorium expires July 2020
- Aug. 2020 EO 13945 says consider moratorium -> Sept. 2020 CDC imposes one
- Feb. 2021 CDC extends moratorium (end of Jan to end of March)
-> around this time, the $ Congress originally provided in CARES Act runs out -> Am Rescue Act allocates more $ to rental assistance - End of March - CDC extends moratorium, not a lot of $ left + Congress pulling back from rental assistance
- May 2021 - Dist Ct invalidates moratorium, issues stay while appealed -> DC Cir agrees w/ stay in June 2021 + SCOTUS refuses to vacate it
- end of June 2021 - CDC extends one more month, but promises this is it, BUT Delta variant coming to forefront -> CDC extends until Oct 2021
31
Q
Ala Assoc. - Prof’s View of Convo Between Branches
A
- concept of admin law as ongoing convo between branches of gov
- in this case, Congress responded 1st, agency then filled in gaps when clear intervention needed for longer period
- Ct comes into convo late in game, when the order is 1st challenged (was initially trying not to get involved) -> BUT Exec continues + ct ultimately says no
32
Q
Ala Assoc - Prof’s Points Re Reasoning
A
- cite to Youngstown - arguing emergencies don’t extend President’s power
- 3 months between when ct refused to invalidate stay + when they eventually did so -> nothing actually changed in Exec’s authority, but ct argues facts have changed (realtors’ interests have become greater + gov’s decreased)
