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The Limits of Presidential Influence: Two Environmental Directives and What They Mean for Executive Power

Published online by Cambridge University Press:  19 December 2017

Joshua B. Kennedy
Joshua B. Kennedy*
Affiliation:
Georgia Southern University
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Abstract:

The executive order process can be a long and complicated one, as directives may wind their way through various agencies before finding their way onto the president’s desk. Even after these orders have been issued, federal agencies will have a wide degree of latitude under certain conditions as it pertains to implementing them. In this article, I study the history of three separate presidential directives, two dealing specifically with environmental issues and one with general regulatory issues, in order to provide a picture of the process from inception to implementation. I consider three cases and explore the factors that drive presidents in choosing when or whether to issue an order and those that drive federal agencies to react as they do. This article encourages scholars to reconsider what they consider “unilateral,” pointing to the instances in which presidents must engage in bargaining within the executive branch they ostensibly head.

Keywords

Presidential PowerEnvironmental DirectivesExecutive OrdersE.O. 12630Cooperative Conservation
Type
Articles
Information
Journal of Policy History , Volume 30 , Issue 1 , January 2018 , pp. 1 - 24
Copyright
Copyright © Donald Critchlow and Cambridge University Press 2017 

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Footnotes

The author wishes to thank E. Scott Adler, Ken Bickers, Jeff Cohen, John Griffin, Jennifer Wolak, Patrick Novotny, and Andrew Rudalevige for their thoughtful comments and suggestions throughout the course of this project. The author also wishes to thank the JPH anonymous reviewers for their valuable feedback.

References

NOTES

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21. Both Lynn Scarlett and Gale Norton emphasized that much of the implementation is carried out by individuals in the career Senior Executive Service (SES), who do not possess the same employment protections as other career employees. While they can be difficult to fire, career SES officials can be relocated as a form of punishment for ineffective management. One example, Scarlett said, involved a particularly obstinate official from the SES who was moved to a much less desirable location.

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39. 483 U.S. 825; the opinion was written by Justice Antonin Scalia.

40. “1988 Legislative and Administrative Message: A Union of Individuals,” 25 January 1988, at http://www.presidency.ucsb.edu/ws/index.php?pid=36046&st=congress&st1=#axzz2im5b9yeR.

41. At http://www.presidency.ucsb.edu/ws/index.php?pid=35554.

42. Ronald Reagan, “Executive Order 12630—Governmental Actions and Interference with Constitutionally Protected Property Rights,” online by Gerhard Peters and John T. Woolley, The American Presidency Project (1999–2015), http://www.presidency.ucsb.edu/ws/index.php?pid=35554.

43. Marzulla, “The New ‘Takings’ Executive Order and Environmental Regulation.”

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48. GAO-03-1015 (2003).

49. Ibid., 14.

50. Personal interview with Gale Norton; 10 September 2013; Telephone interview with Roger Marzulla; 29 January 2014.

51. Fried, Order and Law; Kendall and Lord, “The Takings Project.”

52. Telephone interview with Roger Marzulla, 29 January 29, 2014.

53. Fried, Order and Law, 183.

54. Telephone interview with Roger Marzulla, 29 January 2014.

55. Fried, Order and Law, 186.

56. Telephone interview with Roger Marzulla, 29 January 2014.

57. Ibid.

58. Mayer, With the Stroke of a Pen.

59. Telephone interview with Roger Marzulla, 29 January 2014.

60. Ibid.

61. Rudalevige, “The Contemporary Presidency.”

62. Fried, Order and Law.

63. Personal interview with Gale Norton, 10 September 2013; Telephone interview with Roger Marzulla, 29 January 2014.

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67. Telephone interview with Roger Marzulla, 29 January 2014.

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74. George W. Bush, “Executive Order 13352—Facilitation of Cooperative Conservation,” online by Gerhard Peters and John T. Woolley, The American Presidency Project (1999–2015), http://www.presidency.ucsb.edu/ws/index.php?pid=61446.

75. Personal interview with Gale Norton, 10 September 2013.

76. Ibid.

77. Ibid.

78. Telephone interview with Lynn Scarlett, 5 September 2013.

79. Personal interview with Gale Norton, 10 September 2013.

80. White House Conference on Cooperative Conservation, “Faces and Places of Cooperative Conservation: Profiles in Citizen Stewardship” (St. Louis, 2005), 43.

81. Ibid.

82. Ibid.

83. Ibid., 6.

84. GAO-08-262 (2008).

85. Ibid., 5.

86. Ibid., 57.

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93. Telephone interview with E. Donald Elliott (General Counsel, Environmental Protection Agency, 1989–91), 12 April 2014.

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