Welcome to this briefing on the history of executive orders. My name is dane kennedy, director of the National History center, the sponsor of this briefing. It is part of an ongoing series that the National History center runs that is designed to bring historical perspectives to issues that are relevant to congress and the political process in general. So, the National History center, let me briefly explain the National History center, is a nonprofit, Nonpartisan Organization that is affiliated with the american historical association. Its briefings are not intended to advocate for any particular set of policies but, rather, to provide Historical Context that can help inform policymakers and the public as they deal with a difficult difficult issues. And i want to thank in particular the Mellon Foundation for funding this series. And to amanda perry, at the back of the room, the assistant director of the center, who has done all of the leg work band organizational efforts to make this possible. So, given the recent flurry of executive orders that have come from our new president , we thought this might be an opportune time to reflect upon the historical background of this phenomena of executive orders that i think many people have not given a great deal of attention to. And so, we have three experts here who are going to talk about how these orders have been used by president s in the past, what purposes they have served, how they have changed over time and the like. Im really delighted to have our three panelists today. I will briefly introduce them and then turn the session over to them. Our first speaker is andrew from boden college. Hes written several books that are obviously relevant to the subject. Managing the president s program, president ial leadership and legislative policy formulation. The new imperial presidency, renewing president ial power after watergate. And several others. He also writes for monkey cage and other outlets. The second presenter is going to be, please feel free. You can come up to the front. Our second presenter is going to be julie from marquette university. She is the author of delivering the peoples message, the changing politics of the president ial mandate. She, too, writes frequently for the Political Science blog mischiefs of faction and contributes to other venues. And finally, matt from George Washington university. He is the author of defenseless under the night and the origins of homeland security. And the right moment, Ronald Reagans first victory and a decisive turning point. He also writes for the Washington Post and the like. Im delighted to have them here. I would also note the leaflet that is available outside not only introduces them but on the backside has some bullet points that summarizes some of the main issues they are going to address. So, ill turn it over to andrew. [applause] it is a pleasure to be here. Thanks to professor kennedy and his colleagues at the National History center, special appreciation for allowing a political scientist to infiltrate their ranks this morning. 30,000ng to give a Vantage Point history of the executive orders and my colleagues will focus in a particular subject areas of civil rights and foreign policy, particularly. So, we start really by thinking about executive orders as theyve become prominent in the last number of years, right . Obviously, president obamas that thing in the way. You dont really need it. President obamas we cant wait, followed by his declaration that he had a pen and a phone, became very much fodder for controversy over his administration. Of course in the last month, we have had quite a rollout of executive actions by the new President Trump. This is not a new phenomena. President Franklin Roosevelt famously issued thousands of orders, including one whose anniversary is coming up, the internment of japanese americans during world war ii. But before him, Teddy Roosevelt was prominent in this area to warrant special treatment in a number of histories. He actually issued as many executive orders in his term as all his predecessors to that date. In fact, if you want to go back to the beginning, most importantly, we have the issue of the proclamation of neutrality in 1793. But the First Executive order goes back to 1789. I was hoping my colleagues might help replicate this particular scene from hamilton. Unfortunately, they have fallen short. Need more courage. Anyway. So, what are executive actions . Im actually going to talk about executive orders as a subset but i want to broaden it back from there. Executive actions are directed, not too surprisingly but something that is overlooked, directed towards executive agencies or personnel, not to private citizens directly. An executive order cannot tell a private citizen to do something or not do something. However, of course, through the leverage provided by federal policy, take procurement policy, for example, there can be very strong impacts on the broader american economy, on the behavior of american citizens and companies, and as we have seen recently, some actions can have quite immediate affects. Somebody who got on a plane several weeks ago, when they got off the plane the world was different because of executive action. It is worth noting that the directives have to be grounded in the president s constitutional authority. Either provision of the constitution itself or something that has been delegated to the president in statute. It can be overturned by statute, judicial action, if the Court Decides the executive action does not match up with the authority the president has been granted or by subsequent executive action. Executive orders are frequently repealed or rescinded by subsequent president s. Taking a quick example. When president , it must be said , sometimes unsure of what exact statute authorizes a particular action, president s are prone to news boilerplate language that suggests by the Authority Vested , in me as president by the constitution of the laws of the u. S. More convincing is when the president can ground his actions in specific statutory authority, as, for example, with the recent order President Trump issued trying to restart the socalled wall on the mexican border. Again, going back to 1789, every president has issued executive actions by some name. As of this week, we have reached executive orders 13,736. It was compiled by the state department. They asked all of the department s to send them all the orders they had. They put them in order and they came up with number one as a lincoln order. But there are tens of thousands of orders that did not get to the state department by 1907. If you look back in sequence, they tried to stick some in later. There is order 9421b, c, d. Trying to stick things in. Again, this is not something that was really very well tracked until the 1930s when the federal register comes into being, along with the administrative procedure act. And while every president has issued orders, they have not been in the same numbers. Some president s have been more aggressive. This begins to pick up with Teddy Roosevelt and tracks pretty closely with the growth of the American Government as a whole. The scope and expectations of what government will do build the administration state, they build a larger role for the federal bureaucrats and executive agencies. And as chief executive that , gives the president more to control. President s have taken advantage of that. Where you see very large numbers, Franklin Roosevelt for exam, issued almost an executive order a day, that tends to relate to the new deal. World war ii and the creation of many temporary agencies during the war. He was empowered by the first and second war powers acts. Actually, about half of the 1940srom the 1920s to are about public lands. So, one of the reasons you see a big drop off over time is a lot of this becomes shifted over by things like the sub delegation act of 1950 to places where the president can delegate a lot of these orders to executive agencies. Suddenly the secretary of the , interior issues a lot more orders regarding public lands. The president no longer has to do that. The president used to have to sign up on effectively every shift in Civil Service status. During world war ii, as you can imagine, when a lot of people did not retire, you are needed for the war effort, that became a burden. In the 1940s, again, that is routinized. Overegin to see the shift time. So, the number of orders in the 1930s and 1940s, early 1950s, is in the hundreds. The annual number of orders these days is more in the 30s or 40s, but that does not mean that there are fewer actions overall. As mentioned, the drop in executive orders flows from the end of the surge in administrative growth the , mobilization for world war ii, the demobilization from world war ii, getting price controls in place, removing price controls and so forth. But again, a lot of it comes from others deeper in the bureaucracy doing some of this work. And it also comes from the substitution of other directives for executive orders formally stated. An executive order goes through a certain process. It has to be published in the federal register. It has certain limitations from the president s point of view. You have seen a rise in other kinds of vehicles the president s have used to give directions to the executive branch. One that became prominent in the obama years was the rise of president ial memoranda. We have seen those as well under President Trump. President obama said i have not been aggressive at all in my use of executive power. Look how few executive orders i have issued. And that was true, but that difference had been made up for and more by the use of president ial memoranda. And so, when we are thinking of executive actions, it is a mistake just to look at executive orders and count those. You need to think also of proclamations, you need to think of president ial memoranda. You need to think about administrative orders, letters, frankly, a quick, not sure recent president s have used email, but a quick email to a Department Head could count as an administrative order. We have had a variety of National Security directives. I recommend a book from about 10 years ago, by order of the president. It is a more complete taxonomy and i have given you here. But, according to the Congressional Research service, they are more than 20 formal vehicles for the use of transferring president ial authority to the agencies. What are they used for . Well, id suggest there are four categories. When are the direct orders we think of. The famous harry truman order nationalizing the steel mills during the korean war that was overturned. By a famous Supreme Court case. Nationalize the steel mills, he told the secretary of commerce and he did. , cancel visas. And so, they were canceled until the courts weighed in. Statutory interpretation is another important mechanism that is utilized to some sort of executive directive basically telling agencies how they are supposed to interpret the law. After all, laws can be vague. Discretion can be contested and the president s preferences can be asserted by executive orders. A version of that is where discretion where the president says we do not have enough resources to prosecute everyone in this category of crime or to deport everyone, in this category of possible deporte, but we are going to prioritize these folks. You see that difference between president obamas guidance and in 2014 trying to expand the scope of the people who would be sort of low on that list and President Trumps order that broadens what the administration considers criminal action, and therefore, justifies a more immediate deportation. This can also prompt future action. A lot of what memoranda do, and you will see this if you read through some of the trump orders is to basically tell agencies to come up with a plan, look at these regulations. So President Trumps order on doddfrank does not mention dodd frank. It talks about financial regulations, it lays out Core Principles and it says come back. Lets see if we can deregulate, lets come up with an effort to do that. Earlier, we saw that frequently in environmental policy under the obama administration. And then, finally, another important action that president s can accomplish is to structure the process or institutions are or both to provide some mechanism for decisionmaking within the executive branch that again will they hope the their policy preferences more directly than had been the case. So, regulatory review is a great example. You see numerous president s having issue orders structuring revelatory review. President reagans most famous and now we see President Trump again trying to limit the regulations that come out of the agencies and departments through his two for one order. And finally, obviously, these have a symbolic and political point. They are playing to certain constituencies. If you read them, especially in more recent years, they read in part like press releases, if you read the purpose section of some of the trump orders, it is rhetoric that has nothing to do with the order per se except to justify it and to make it read well to those to whom the point is being made. Your tough on crime, you want to clean up the environment or deregulate or heavily regulate . All of that could be done through an order. What is the process . President s from the 1920s and 1930s in the 1960s saw to regulate this so that there is input across the executive branch. I want to show you my favorite archival postit note. This is a memo to haldeman, president nixons chief of staff rated he wrote down how it works. Omb, the attorney general and then finally to the president , right . That process is designed, of course, to include the entire expertise of the executive branch. Ombs job of central clearance and olcs job with injustice to make sure that something has form and legality checked off. It is important. Over history most executive , orders come from departments and not from the executive branch. About 60 of orders over the 1930s to the mid2000 anyway have originated and mostly been developed outside the eop. That matters as well. So, finally, just a little note, since we are sitting on the side of washington, d. C. , who controls the scope . You do. All right . The way the statutes are written in terms of the delegation, the power that is included or not included, the vagueness of a statute can matter very much for how president s are able to interpret their power and to issue executive orders channeling that power. And not just in statute but i might say inertia is important as well. When congress does not debate on questions of war and peace you , wind up with a problematic vacuum that president s are willing to fill. And thats worth noting. And so my only moralistic , conclusion here is that president ial power expands when is in active. I leave it there and turn it over to my colleagues. Thank you. [applause] what happens here . All right, hello. Thank you so much for having me. This is great to be here this morning, and im going to focus narrowly in on a very narrow and specific period, the middle of the 20th century, to talk about the history of president ial executive orders and race and civil rights. So, this is an area where i think we have got some timely pressures considering how race and religion will figure into the priorities of the new administration and how some of these things will be expressed through executive action and specifically through executive orders. I want to focus mainly on executive orders and talk a bit about the kind of pivot to other kinds of executive action towards the end of my story. I want to emphasize three thematic points. One of them is that this illustrates the linkage between symbolic president ial action in and the nuts and bolts of governance that we typically associate with orders and directives to the executive branch. The second one is political in nature, which is that one of the often ignored stories when we talk about lobbying in the broader discourse is the impact of lobbying on the executive branch. We see here in the story of civil rights executive orders the impact of lobbying efforts, Interest Group efforts, to pressure not only congress but the president and the executive branch. And finally, i want to emphasize the nature of Party Politics, and how Party Politics shapes different patterns between democratic and republican president s even in the middle of the 20th century before the polarization of the current era had taken hold. So, just to give a little bit of context here. The story im going to talk about begins with f. D. R. In 1941 and i will end with nixon. It was a relatively brief period in which we see a slow but steady trickle of executive orders around the question of civil rights and this tracks through a period of legislation on civil rights. And the other thing i want to emphasize here is that when we are thinking this builds directly off of what andy was saying, when were thinking about the president s of scope authority with regard to executive orders on civil rights, these are rooted in areas that fall under the executive branch purview. We see an interesting dynamic where president s are very confined. They cannot issue an executive order that makes civil rights the law of the land. Congress has to do that. But at the same time, president s are able to work through areas that are in the scope of the federal government already and in the scope of the executive branch, specifically the military, federal Government Contracting and hiring, and housing policies in order to set, get the ball rolling and set the stage for congressional action and for