Ational history center, is nonprofit, Nonpartisan Organization that is affiliated with the american historical association. Intendedngs are not 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. At the backa perry of the room, the assistant director, who has done all of the leg work organizational efforts to make this possible. Flurry of the recent 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 today. Anelists i will briefly introduce them and then turn the session over to the. M. Our first speaker is from boden college. Hes written several books that are obviously relevant to the subject. Managing the president s president ial leadership and legislative newcy for relation, the imperial presidency, renewing president ial power after watergate. 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 from marquette university. E is the author of delivering the peoples message, the changing politics of the president ial mandate. She, too, wrties frequently for the political signs blog mischiefs of faction and contributes to other venues. And finally from George Washington university, she is the author of defenseless of her the night and the origins of homeland security. And the right moment, Ronald Reagans first victory and a decisive turning point. Im delighted to have them here. Leafletalso note the 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. [andpplause] it is a pleasure to be here. Professor kennedy and his colleagues at the National History center, special appreciation for allowing a political scientist to infiltrate their ranks the scoring. Im going to get a 30,000 the 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 . Obvious the, president obamas you dont really need it. President obamas we cant wait, followed by his declaration that phone, becameand a very much fodder for controversy over his of ministration. His administration. Had quite ae rollout of executive actions by the new President Trump. This is not a new phenomena. President frank when famously issued thousands of orders, anniversarye whos is coming up, the internment of japanese americans during world war ii. Before him, Teddy Roosevelt was prominent in this area to warrant special treatment in a number of history see actually as many executive orders in his term as all his predecessors. In fact, if you want to go back to the beginning, most important, we have the issue of the proclamation of neutrality in 1793. But the First Executive order goes back to 1789. Hoping my colleagues might help replicate this particular scene from hamilton. 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 their. From there. Directed,actions are 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 something caret 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 rizzoli some actions can have quite immediate affects. Recently, some actions can have quite immediate affects. Iteone got on the plane is worth noting that the directives have to be grounded in the president ial authority. Either provision of the constitution itself or something it has been delegated to the president in statue. Statute, overturned by judicial action, if the Court Decides the executive action does not match up with the authority the president has been granted or bike subsequent executive action. Executive orders are frequently rescinded by subsequent president s. Taking a quick example. Be saidsident, it must sometime, unsure of what exact statute authorizes a particular action, president s are prone to use or locate language that to suggest, 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 issue trying to restart the socalled wall on the mexican border. Every going back to 1789, president has issued executive actions by summoning. A by some name. As of this week, we have reached executive orders 17000. It was compiled by the state department. They asked all of the department to send them all the orders they had. They put them in order and they came up with number one as a link in ord lincoln order. But there attends of thousands of orders that did not get to the state department by 1907. They try to stick some in later. D. Re is order 9421b, c, 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. 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 larger roles for the federal bureaucrats and executive agencies. That gives the president more to control. Advantage have taken of that. Where you see very large numbers, Franklin Roosevelt for example, issued 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. Half of the orders from the 1920s in the 1940s 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 places where the president can delegate a lot of these orders for 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 off on every shift is civilservice status during world war ii, as you can imagine, when a lot of people did not retire, you are needed war effort, that became a burden. In the 1940s, again, that is really nice. Rutinized. 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 administered as 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 substitution of other directives for executive orders formally stated. It goes through a certain process. Has republished 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 toe used to give directions the executive branch. One that became prominent in the obama years with the rise of president ial memoranda. We as cnet under President Trump. We have seen that. President obama said i have not been aggressive at all in my use of executive power. The cuff you executive orders ive 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 acttions, it is in 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, surely, a quick, not recent president s have used email, but a quick intel to a Department Head could count as an administrative order. We have had a variety of National Security directives. I recommend a book by order of the president. 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 fou categoriesr. One are t direct orders we think of. Amous harry order nationalizing the steel mills during the korean war that was overturned. Nationalize the steel mills, he told the secretary of commerce and he did. Cancel visas. And so, they were canceled until the courts weight ed in. Istutory interpretation another important mechanism that is utilized to some sort of executive directive basically telling agencies how they are supposed to interpret the law. Laws can be vague. Discretion can be contested and the presents preferences the president s preferences can be asserted by executive orders. A version of that is where president say 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 try our ties these folks. Difference between president obamas guidance and 2014 trying to expand the scope of the people who would be sort andoaw ow on that list President Trumps order that broad is 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 to 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 coreations, it lays out 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. Then, finally, another important action that president s can accomplish is to structure the process or institutions are 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 preface section of some isthe trump orders, it 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. Do 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 . 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 post in note. This is a memo to haldeman, president nixon she just after 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 equality and legality checked off. Most executive orders come from departments and not from the executive branch. 1930s toers over the 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 up our. That power. Not just in statute but i might say in your shed is important as well. Is important as walter when congress does not debate on issues of warranties, you wind up with a problematic vacuum that president s are willing to fill. And thats worth noting. My only moralistic conclusion here is that president ial power expands when congress is in active. I 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 things will be expressed to executive orders. I want to focus mainly on executive orders and talk a bit to other kind of pivot kinds of executive action towards the end of my story. I want to resize three thematic points. One of them is that this betweentes the linkage symbolic president ial action in 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 polly pockets 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 timcontext here. The story begins with fdr in 1941 and i will and witnessing. A 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 were thinking this bill directly off of what andy was saying, when were thinking about the president s of authority with regard to executive orders on civil inhts, these are rooted areas that fall under the executive branch perfume. Urview. We see an interesting dynamic where president s are very confined. An executivessue order that makes civil rights the law of the land. Congress has to do that. 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 housing policies in order to ll rolling anda set the stage for congressional action and for the direction of civil rights debate thereafter. Im going to do a kind of brief overview here of what these orders look like. And one thing i want to draw your attention to, as i do a really brief kind of laundry keephere, is that we seeing essentially the same executive orders issued again and again. This also tells us a bit about the scope and nature of president ial power and influence, that president s are issuing these executive orders to the two different parts of the second branch, and yet they do not always have teeth to get things done, so we see repetition of the same kind of actions over and over again. The beginning of the fdr story starts in 1941 and response to pressure from civil rights activist to include africanamericans and protect africanamericans in the military. As many ofy becomes, you know, an important locus for civil rights discourse to take place around world war ii. Rong sends the United States needs to live up to its commitments, making publicly about democracy and inclusion. Of course, that is not happening. With fdregins in 1941 issuing an executive order 8802 which bans racial dissemination and defense policy and service, and also establishes a National FairEmployment Practices office. Not long after this, i will not talk much about things that reant arent civil rights blackwhite relations, i should note during fdr, an executive order allows for japanese internment, so things are happening in multiple directions. 1943, fdrh noting in issued yet another executive order, the federal employment fair Employment Practices commission has collapsed, has and has notective, kept up its mission. In 1940 three, fdr issues another executive order in 19 fdr issues another executive action. The executive order our flag is committee for equal treatment of people in the armed forces, in truman is credited with the s