Making Public “Policy”: Executive Orders as Outreach in the Trump Years

• In Event: Politics of the Unilateral Presidency

Abstract

This paper focuses on one curious aspect of the Trump administrative presidency, namely Trump’s use of executive orders (EOs) and other unilateral directives as vehicles for communication seemingly as much as for executive management. Trump EOs commonly included lengthy “policy” sections prior to the legally effective language of the order. This prefatory material served to take a partisan stand, make grand philosophical claims, or simply vent (sometimes in the first person) against entities ranging from Twitter to the Supreme Court -- language that often seemed targeted at the public rather than at the agencies to whom the EO was nominally directed.

As such it effectively constituted a press release. While past administrations have utilized “policy” sections as well, albeit less frequently, Trump’s -- in length and tone -- reflected presidential rhetoric traditionally included in statements released with, rather than as part of, executive orders.

To the degree this change goes beyond the anecdotal, it raises interesting theoretical, methodological, and empirical questions. For instance, while EOs have long been used to reward or signal support to outside groups (e.g., Rottinghaus and Warber 2015), the extended “policy” section tactic seems to represent a change in kind as much as degree. Are there implications for the “public” presidency, as well as the “administrative”? As for the latter, this practice may have represented a shift in the ability of the central clearance process housed in the Office of Management and Budget to limit the text of EOs to legally binding language, as had been broadly true for decades (see Rudalevige 2021, Ch. 3).

The addition of lengthy prefaces also has implications for the reliability of a common measure developed as a proxy for the policy complexity of a given order, namely its word count. This variable has been used to good effect by scholars like Thrower (2017) and Warber, Ouyang and Waterman (2018). If Trump’s extra words represented empty calories added to a more enriching directive, the word count measure will treat Trump EOs as more complex than they were. That may render the measure non-comparable between the Trump years and previous administrations.

This paper seeks to test these questions in a systematic way. It identifies the sections of EOs that are hortatory as opposed to substantive and calculates word counts for both these sections and for EOs in their entirety – not just for Trump but also for past presidents going back to Harry S. Truman. How has the text of EOs evolved in this regard, and how do EOs compare in this regard to related directives such as presidential memoranda? If Trump EO introductory sections are indeed longer, does that make the EO more substantively complex — or just wordier?

Along these lines the paper examines the substance of the EOs issued, and the kinds of constituencies they sought to appeal to or appease. In so doing it seeks to weigh in on the already-vibrant debate about whether the Trump years represent an aberration in or an evolution of the presidency.

Authors

• Andrew C. Rudalevige, Bowdoin College

• Victoria E. Yu, Harvard Law School