presidential directives and other actions also guide the executive branch's policies, especially with regard to civil rights and national security. also discussed president obama and president trump's recent executive orders. this 70 minute event is hosted by the national history center in washington, d.c. >> good morning. this briefing on the history of executive orders. dane kennedy, director of the national history center, the sponsor of this briefing. it is part of an ongoing series at the national history center designed to bring historical perspectives to issues that are relevant to congress and the political process in general. center,national history let me briefly explain the

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 presidents in the past, what purposes they have served, how they have changed over time and the like. i'm 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. he's written several books that are obviously relevant to the subject. " managing the president's presidential leadership and legislative newcy for relation," "the imperial presidency, renewing presidential 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 people's message, the changing politics of the presidential 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 reagan's first victory and a decisive turning point>' ." i'm 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, i'll 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. i'm 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 they've become prominent in the last number of years, right? obvious the, president obama's -- you don't really need it. president obama's we can't 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 who's 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? i'm 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 presidential 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 presidents. taking a quick example. be saidsident, it must sometime, unsure of what exact statute authorizes a particular action, presidents 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 so-called 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 1930's 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 presidents 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 1920's in the 1940's 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 civil-service 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 1940's, again, that is really nice. -- rutinized. so, the number of orders in the 1930's and 1940's, early 1950's, is in the hundreds. the annual number of orders

these days is more in the 30's or 40's, 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 presidents toe used to give directions the executive branch. one that became prominent in the obama years with the rise of presidential 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 i've issued, and that was true, but that difference had been made up for and more by the use of presidential 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 presidential memoranda. you need to think about administrative orders, letters, surely, a quick, not recent presidents 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 presidential authority to the agencies. what are they used for? well, i'd 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 present's 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 obama's guidance and 2014 trying to expand the scope of the people who would be sort andoaw ow on that list president trump's 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 trump's order on dodd-frank does not mention dodd frank. it talks about financial coreations, it lays out principles and it says come back. let's see if we can deregulate, let's 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 presidents can accomplish is to structure the process or institutions are both. to provide some mechanism for decision-making 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 presidents having issue orders structuring revelatory review. president reagan's 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 1920's and 1930's in the 1960's 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. omb's job of central clearance and olc's 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. 1930's toers over the the mid-2000 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 presidents 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 presidents are willing to fill. and that's worth noting. my only moralistic conclusion here is that presidential 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 i'm going to focus narrowly in on a very narrow and specific period, the middle of the 20th century, to talk about the history of presidential 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 presidential 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 presidents 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 we're thinking this bill directly off of what andy was saying, when we're 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 presidents are very confined. an executivessue order that makes civil rights the law of the land. congress has to do that. at the same time presidents 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. i'm 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 presidential power and influence, that presidents 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 african-americans and protect african-americans 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 fair employment practices office. not long after this, i will not talk much about things that rean't -- aren't civil rights black-white 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 segregated and the armed forces in 1948, but anin, we're seeing executive order that repeats the purpose of one that has happened before. this is a bit of a different spin on the scope of executive action in the sense that presidents have the power to do this but they can't always make it be effective. moving into eisenhower, here we start to see the party dynamics where i will say perhaps controversially that through this period republican presidents are more reactive than democratic presidents to what has happened before, to situations on the ground. democratic presidents are responding to party pressures across the northern and southern liberal and conservative wings of their own party. they are reacting as well. there is a more reactive character to what i would

identify as the main executive action by eisenhower and nixon. nixon, excuse me, and eisenhower the957 federalizes, national guard -- that is the unilateral executive order action for civil rights. this is accompanied by a proclamation 3204, for anyone keeping track at home, which begests that the law will enforced. that eisenhower makes the case that this is settled law, brown 1950ard was decided in four, in 1957 that arkansas will be made to comply that the federal government. it is very much within the law and order scope within -- and not so much within the scope of eisenhower taking a stronger stance on the substantive point of civil rights. so that is also a big difference. from eisenhower to

kennedy, the other thing i should note here is that the civil rights legacies of most of the mid-20th century presidents i'm talking about are deeply contested. fdr, true foror eisenhower, true for kennedy, and i think to others in extent, also true for harry truman that scholars debate about whether these president, what were their true attitudes, how, did they do enough, did they take strong moral stances, did they expend enough political capital? these are some of the debates that are not settled. kennedy.to here, perhaps, maybe the most fraught in terms of the historical perceptions of kennedy's legacy on civil rights. in 1961, kennedy issues an whichive order 10925 gives federal agencies authority to sanction federal contractors who violate bans on

discriminatory hriring. this gives things, again more teeth, but once again, as we know, we are going to revisit these questions up bans on extsemination in the n administration. in 19 six at two, kennedy issues another watershed civil rights executive order 11063 -- in 1962, which bans discrimination and federal housing. here we have another moment of interplay between the relatively ofrow anscope presidential unilateral action and the broad implications and meaning that can underlie some of those words. the question of what federal housing means and in this case it means both low income housing that owned or controlled by the federal government, but it also means federal housing policies including lending and bank policies.

ad "the case for reparations," there is a lengthy description of the practices that came out of some of the new deal federal housing legislation where in government-backed loans are bei ng given in a racially discriminatory way.ke. kennedy's executive order was a response to some of those policy. once again, we come up against the problem of the enforcement and bringing these things into reality. so, these were some of kennedy's first and biggest stances on the issue of civil rights, and of course, he was assassinated before he was able to pursue his legislative program. that legislative program and civil rights was taken up by lbj. that legislative program is accompanied by unilateral action. jfk's 1961s with

order johnson issues an that calls for affirmative action to be taken by the federal government on nondiscrimination in government hiring and contracting. so that is where that phrase originate. fter congressional action on civil rights later deeper into the administration in 19 six to jbj follows1967, this up by giving the department of labor more responsibility for enforcing nondiscrimination and adding sex to the dissemination ban that had come, the 1965 dissemination ban. once again, what we're seeing is the story of different presidents issuing the same executive order again and again, that covers the same scope. and so in some ways this is a story of imitation. -- limitation.

here is the story of presidential executive orders kaiser -- kind of ends. 1964 legislation no longer our president taking unilateral action about changing the status quo on the federal status of civil rights the -- civil rights. the coda of the story with nexen involves an executive order that creates the council for urban affairs. later -- nixon also issues orders continuing affirmative action and equal opportunity in civil employment and promoting minority businesses, also a racially oriented executive order that reagan picks up in 1983. we see some of the kinds of party priorities that we would associate across the two parties in their civil rights

executive action. here as our story of executive orders ends, the story of executive action does not end. the presidents still have considerable scope of influence and power over how civil rights policy is enforced. the difference is that is not happening through these easily traceable executive orders. it is happening through directives, through other parts of the executive branch, that never get entered into the record as executive orders. nixon's philadelphia plan around the schools goes through the department of labor. all of his desegregation plans are done off those executive order books. as we are talking about contemporary presidents, inrge w. bush was criticized some circles for not enforcing civil rights policy. this was not done through executive order. it is done through staffing, appointments, priorities. this story of executive action

is not totally traceable through executive orders, but this little snippet of history shows us exactly where the president stands in these kinds of difficult political questions that prove often intractable for congress, which is that the president's power is often limited by the president influence is quite great -- often limited but the president's influence is quite great. [applause] >> thank you so much, professor kennedy, for inviting me here. it is great to be part of this panel. i want to talk about executive orders and national security briefly. what i was thinking about this -- andi was reminded of the national portrait gallery -- i don't know how many of you have visited -- there is a

portrait of every president, and the one of franklin roosevelt is an image of his face looking stern but underneath are a series of pictures of his hands. in three of the images, he is holding a pen. at first blush, the image seems fairly benign. here is a president, a wise president, using a pen to make law. a strong executive operating under a system of checks and balances. but the fear that a president could set up essentially a dictatorship with the stroke of a pen has also imbued this image historically with a touch of menace. the image i think contains a contradiction that has long bedeviled american democracy. wartime presidents like to claim most often that the other branches of government can't really check their power. they say they are commander-in-chief and it is

their obligation to defend the united states. so when abraham lincoln suspended the writ of habeas , thes in the civil war supreme court overturned his order, but lincoln essentially ignored the court. during world war i, woodrow wilson established a committee on public information, creating with a three sentence executive order -- i read it, just three sentences -- what amounted to a propaganda mill for burnishing america's war effort. the powerent has under the constitution and congressional acts to take measures necessary to avert a disaster which would interfere with the winning of a war. president franklin roosevelt asserted that in 1942. the sweep of roosevelt's wartime executive orders and proclamations and other actions rivaled lincolns. roosevelt declared a state of national emergency, set up a

commission to investigate the pearl harbor attacks, and established more than four dozen -- he alludes to this -- more than four dozen separate war of wars, the office information, price administration, war mobilization, on and on, essentially creating an architecture through executive orders that would enable the country to fight the war. as both my colleagues mentioned, 75 years ago this sunday, roosevelt signed one of the most infamous executive orders in ,istory, which is 9066 directing the secretary of war to round up and put about 120,000 japanese americans and japanese nationals in prison camps. during the cold war as the u.s. became a superpower with far-flung global, economic, and military interests, presidents routinely used executive orders to make national security policy

and especially in the realm of classification of information. they had a lot of leeway to harbor executive authority to take it essentially for themselves without much competition or checks on their power. so thatetition was viacom unit is with the specter of nuclear annihilation to give what seemed to some presidents to be an open-ended license to sign robust executive orders to defend america. how must anything in the name of national security was the claim. truman reorganize intelligence agencies, laid the basis for the cia, and established federal employee loyalty tests. during the korean war, truman echoed roosevelt. he claims the constitution granted presidents the power to take any step in the nation's best interests. even the cold war, i would argue, did not give presidents a blank check to use executive power.

as andy referred to, truman signed an executive order seizing more than 80% of the nation's steel mills in the name of national security. the courts struck it down. truman's defeat raises a bigger point that i want to make. although presidents have claimed , especially in the modern era from world war ii on, but even dating back to the civil war and previously -- although presidents have claimed authority to shape national security policy with the stroke of a pen, they have faced a significant hurdle. in the area of civil rights that julia talked about, some of the same limitations apply in national security. "the dire warnings of impending dictatorship through executive orders are overstated congo one political scientists have written. the ultimate check on executive energy is political. some national security executive orders have been fleeting.

julia talked about repetition because an earlier order was not necessarily effective. some national security orders have been fleeting. others have been rescinded. some have been amended. there's staying power has acted and flowed -- they are staying power has ebbed and flowed depending on the president and the nature of the times. dwight eisenhower employed federal troops to desegregate schools in little rock, arkansas, but his order involved -- if we look back through eistory, it involved a lon instance of federal intervention that did not come close to abolishing jim crow. kennedy signed an order creating the peace corps, but it took an act of congress to make the peace corps a permanent federal agency. signed anennedy executive order that gave father's deferment from the military draft.

in 1970, richard nixon rescinded kennedy's order. president gerald ford famously signed an executive order barring cia political assassinations, but you could thisr -- you could argue has not stopped a subsequent presidents from seeking to target foreign leaders such as gaddafi and saddam hussein during military actions. his second day of office, president barack obama issued two executive orders whose fate underscores the contingent nature of executive orders pertaining to national security. one obama orders successfully revoked a 2007 bush order pertaining to the geneva conventions. obama then with the stroke of a pen had made a substantive national security decision. a second order signs the very same day, though, called for guantanamo bay detention facility to be closed within a

year of the signing. congress blocked the order, which was unusual, but it obviously did happen in this instance. of course, the prison is still open. to conclude, white house aide paul who served under bill clinton once said that executive orders can be summed up as "stroke of a pen law of the land kind of cool." but i want to leave you with this. i think he is only partially right. the power of a presidential pen has been restricted by the fast-shifting politics of the times and by a constitutional system of checks and balances that has almost as often asserted its authority as it has ceded power to the executive. for the most part, executive orders have not become, as critics of the imperial

presidency have feared, the friend of the authoritarian. i will end by saying, some aspects of trump's presidency are unprecedented, but one month into his term, i think we can say safely that one thing is not unprecedented, which is that the fight over presidential power has once again, as it has throughout our history, once again been fully joined. [applause] collects thank you. this is an opportunity for all of you to ask questions that you might have for our panelists. >> thank you. you. you to all three of i have a question about something i might have missed and would like to recap. leverage -- ru

dalevige mention that executive orders are a type of executive action. i wanted to clarify. what makes the executive order different from the other species of executive actions? the second part of my question is for all three of you. i am getting one of the big ordersis that executive do have limitations to them and those limitations often are encouraged by congress if congress so chooses. if a congress is controlled by the same party as that vastent, does more power and influence in executive orders? shape our current

situation and the power of the executive order? prof. rudalevige: on the first point, a great question and one that requires a lot more elaboration than i could give right now. basically, from the president's point of view, all of his statements have the same legal force. there is not a legal difference, according to the courts, between a proclamation and in order. the heading at the top of the page does not matter much. the office of legal counsel has held there is no difference between a presidential memorandum and executive order in its legal effect. executive orders -- there is a difference practically speaking. certainly the office of management and budget, which has traditionally been the coordinating mechanism for these orders, does see a difference in that executive orders are, well, orders, formally making a change in structure, institution, process. another not prodding

department to use its own statutory powers to act. memoranda generally have been in that more prodding mode as opposed to direct action. this is not a distinction that has been completely and forced overtime, but i think it is the best we have got at the moment. executive orders have to be published in the federal register, at least by executive order, there is a process for consultation across the executive branch, and presidents sometimes find both of those things inconvenient and therefore might choose to go another way. there is some discretionary choice allowed. some of the other things like guidance or findings, some of those are required by statute, so the president might have to find that a certain state of the world exists to activate his own power under a statute. guidance documents are normally issued by the agencies and departments themselves. the president could prod them to

do it a certain way, but you normally would not use an executive order. quickly on the other point, i think congress has a problem generally in that it is acting as to collective bodies and also , even though unified government might be expected to do less investigating or oversight of a presidential action, a divided congress is going to find it very hard to muster a vetoproof majority of overturned by statute or presidential action. i think the president has the advantage both of being able to move faster, advantages hamilton identified way back when, and the advantage of being the sole -- i don't really believe in a unitary executive branch, but it is more unitary than congresse is. prof. azari: the orders that i am talking about, to the extent

that civil rights policy is representative of other policy is another question -- but the executive orders i am talking about did not really have the effectiveness they were written to have. that is not about congress. that is really about the executive branch and the president's inability to oversee everyone at every moment. relatedly, when there are underlying clinical dynamics that make that difficult for members of the executive branch to weed out discrimination in hiring, for example, those same underlying dynamics for presidents and congress, even though there is unified government -- unified government in the 1960's is a different animal than unified government now. but i think the punchline here is that when presidents are issuing executive orders that are broad and symbolic and take on a challenging issue, that can be indicative that the majority party is divided on that question and those issues

can't be addressed through congress. i would not say it applies equally under divided or unified government, but i think it does apply in both instances. prof. dallek: if i could pick up on that point, one policy, which i don't think was done by executive order -- don't ask don't tell. bill clinton came into office, has unified democratic control, but there was significant opposition within his own party, within the military importantly, among other segments of society, and they went through this six-month process and ultimately arrived at a solution that was satisfactory to nobody. the president was able to authorize and approve. now, don't ask don't tell has become synonymous almost with a bad executive policy, one that did not work that had to be overturned and took a while to overturn. barack obama, the example i

mentioned with guantanamo bay, came into office with a healthy majority in congress, a lot of political power, and this was a major campaign pledge. second day, it was a symbolic order but it was also substantive. he said within a year of signing it, and it was blocked. i think it gets at julia's point as well on an issue that is particularly difficult where the majority party does not want to take up even the chronic majorities -- even the democratic majority's bill to close guantanamo, obama tried to do it by his order the runs into problems. i think it is contingent on the issue in part. wondering about the mechanics of how executive orders become policy or become a thing.

who decides whether or not they go? prof. azari: the military at that point, the national guard in that case. i don't know intimately what those mechanics are. maybe one of my fellow panelists do, but in the case of the military, the president orders are the president's orders. >> can they say no, the military? >> in that case, they federalize the guard. i think in arkansas, the national guard was not necessarily sympathetic to taking that sort of action, but again, the power of the president federalizing troops, that is an area that has significant authority. but i'm sure we can find instances in which maybe not necessarily in the military -- but again, look at bill clinton,

when he tried to order significant changes in the policies toward gay and lesbian americans in the military, and the military chiefs of staff said, actually, we don't support pushed back very forcefully, i believe in public. so there are ways in which the bureaucracy, for example -- a little bitgets outside the scope of the discussion, but we are seeing it now with the power of leaks to undermine the president. there are a lot of different ways in which these orders -- but ultimately, the white house ,ives in order and as andy said you are on a plane, and order is issued, and the world has changed. tore are new instructions customs and border officials. i did some research on this

[inaudible] there is an important distinction made between the legislative executive order and a sole executive order. [inaudible] both executive orders and legislative executive orders in terms of national security or international relations following the purview of trade relations. it is a delicate authority. in terms of anything that looks like an arms control agreement, it is extremely rare that an executive agreement tries to regulate that. it is usually done by treaty. president obama did not estimate that by treaty because he knew he would need to clear it.

it seems to me there is no way could be presented as a legislative executive agreement, but rather a sole executive agreement. very few executive agreements are sole executive agreements. [inaudible] the president must absolutely consult representatives and has to tweak that in order to pull away enough democrats. , not clear,ndering about what exactly was the executive order that president obama [inaudible] >> outside the scope of his domain. prof. azari: exit -- prof.

rudalevige: executive agreements, which are separate category here, they again go back quite a ways in history. there is a useful book if you want to really dig into the details. the agreement as you say could have been a treaty. the iran agreement could have been a treaty. it would not have been ratified. the senate was able to extract some concessions from the administration, but pretty superficial with regards to findings that the administration had to make for this to go into effect. yeah, there was a little bit of face-saving going on, but i think it was clear that this was something -- it helps the president that this was americanral and that participation was not necessarily the thing that would make it move forward. but executive agreements have risen over time. in the 1970's, you see a lot of presidential -- congressional

push back against presidential unilateralism and the passage of legislation that requires presidents report executive agreements to congress. there are lots of agreements that are off the books. the president cuts a deal with another foreign leader. but there is not a very good legal division between what is a treaty and what can be done by executive agreement. prof. azari: there is another book that deals with that, presidential work hours. prof. dallek: under obama, the opening with cuba was essentially done -- there was no formal order that he issued, but under the powers and build up over time that a president enjoys, he decided to establish a rapprochement with cuba and he made his case. they ultimately -- they took a number of steps, including the freeing of allen gross and some other steps.

there was some opposition in congress, like senator marco rubio, who is very much opposed. but those voices were relatively politically speaking week. ak, in terms of constraining the president's authority. there was no ability in congress to pass a resolution disapproving of this. it will be interesting to see what the current administration does, because it is not a top-tier issue, but it is an issue that is still controversial, somewhat debatable, and theoretically, president trump could overturn and withdraw our embassy. partly i think it is about the president does enjoy it -- especially when his opponents on the issue are not as strong as he is -- to take a pretty large step that overturns 50 years of relations with cuba. cuba is anevige:

interesting case because the fundamental shift is based on the president power to actually decide we have diplomatic relations with the country or not. that was upheld rather vigorously by the supreme court a couple years ago. it was the jerusalem passport case. that is not an executive order. that is the president saying, yes, we recognize cuba. a lot of the statutes dealing with cuba, the president does have discretion. are allowing commercial flights because that is something the executive branch can do, but he cannot overturn the entire trade embargo, which is in statute. presumably, congress could, as they did with when dynamo bay, put a writer on the budget to say, you can have your embassy but there is no money for it. >> [inaudible]

there is no reason for congress -- it could just be a handshake. you brought up appropriation. congress has the power of the purse when you have an executive agreement that entails spending a lot of money. how does that work? prof. azari: congress is still in charge of appropriating or not. prof. rudalevige: prof. rudalevige: that is a good question. going back to the civil rights orders, the fair employment practices commission was underlined in part by the senate, richard russell, sort of infamous in the area of civil rights as a mentor and later opponent of lyndon johnson. something called the russell amendment was put into the budget in 1944 and stuck around for a while. it says the president cannot create an agency by executive order that lasts for more than a year unless congress appropriates money to support it. if you dig into the omb archives

, there are all kinds of ways to try to get around this order. one of the ways is through interdepartmental commission's. instead of setting up a separate agency or commission, they will set up some kind of interagency process that is chaired maybe by the secretary of commerce and funded by the different departments that assess their funding. that is one way they can do this. but it is true that the president cannot appropriate money directly. it helps the president's cause one congress fails to pass a budget, rather than a massive resolution every year. there is more flexibility given to the president to reprogram money in those circumstances. there is more autonomy granted by the sort of invisible congress mike talked about. prof. dallek: president clinton wanted to help tell out mexico in 93 -- wanted to help bail out

mexico in 1993 or 1994. democrats and republicans ultimately said no. what he did was give them about $20 billion, but through funds that already been appropriated that were already in -- i forget which agency or department it was, but because -- he used basically a little-known statute from decades earlier, a little pot of money that was under executive authority, and lent $20 billion. look at president trump and the wall. he issued an executive order in part two redirect funds that had already been appropriated on the building of a wall. is that enough? no, it is not. by the president does have that kind of discretionary authority in terms of implementing the budget, prioritizing, sending

instructions to the agencies about what they should spend money on. >> let's take both questions because we are running out of time. then you can respond to the two. stress on with the the meditations of executive orders, but don't we have a situation in national security where the accumulation of presidential executive orders is an enhancement of presidential power. in addition, don't presidents when they come in place certain constraints on changing [inaudible] kept whatever executive [inaudible]

even guantanamo bay, my recollection is that there were -- they of the decision might have been able to close it if they had acted fast before congress stopped it. decisions ont of guantanamo bay, a military commissions set it up, slowed it down. you havering if executive orders, they represent an albatross of the administration. we see it now with the trump administration. ,he sanctions against russia many sanctions. it is not so easy for trump to say, that is just an executive order, i'm getting rid of it.

really whether if you have on the one hand a kind of resistance to getting rid of internalutive orders to the executive order process itself. second, whether people get used to doing all of this. [inaudible] many now trump feels very comfortable doing all of his. does the accumulation of presidential power allow the president [inaudible]

>> that is a lot to address. i want to give the person in the back of the room the opportunity to ask a question as well. thank you for the plug for the national portrait gallery. i will be brief. i'm curious about the correlation of long-term success and effectiveness of executive action when they are correlated involving [inaudible] >> that research is ongoing, the research to recognize whether something is centralized is -- i would not say it is ever done, but that work has largely been researched and now the question is implementation, and that is hard because it does not lend

itself to looking in one set of files but rather trying to track agency behavior. anecdotally, there is a lot of suggestion that executive orders do fade away or don't get incremented fully. based on the work i did on legislative policy formulation, it would suggest a centralized order is going to be less successful over time. part of the reason for the central clearance process is not just to be nice to the state department civil servants, but -in from thet buy wider executive branch and give the president advance warning about problems. when you don't do those things, you get the travel ban order. i will let you guys jump in. prof. azari: i think part of what your question is getting at is the distinction i tried to draw between power and influence. some of what you are saying is essentially the flipside of what i was saying, which is that executive orders are not a

magical light switch. at the same time, they do have a cumulative effect. to the extent that executive orders are implemented and do change how government works, do create constituencies in favor and against, those politics are sticky within an administration and across administration. i do think there is something to be said for looking at the is in a broad sequence of history. acknowledging that on the one hand, the executive order does not magically change things but it does set the course for a particular kind of action and resets the politics. that is a very broad, theoretical view, but it is important to hold those two different ideas in our mind at the same time. >> it can absolutely reset the politics, but we can't look at the struggle over orders and executive power without looking at the politics itself.

-- not onk examples foreign policy, but stem cell research. george w. bush, one of the first things he does is an executive order limiting stem cell research. obama does the same, but overturning it, then gives a speech. that is an area where federal funding for international abortions overseas -- they are done through memos. shiftlitics on these do depending on the administration, at least in our own times, fairly partisan. ,ut something like daca deferred action for the so-called dreamers. based on everything president trump has said, my read is that the administration would like to overturn it. but as newt gingrich and others have advised him, the politics

of that are extremely difficult. there is a reason we have not seen that. i think that was done by executive order, daca. >> guidance documents through dhs. prof. dallek: that is an area where trump in theory could overturn it. listan kind of go down the , but certain executive orders and certain executive actions uy-ini think have b among various key constituencies within the government agencies, the cabinet appointees, the lobbying groups that julia has referred to for or against, and also in terms of the effects of the order, how that is covered in the media, the public, reaction to it -- all those things come into play. and in some cases make it extremely difficult for an

president to do as you are she would like. but in other cases, as with stem cell research, they are able with the stroke of a pen to overturn it and overturn it pretty dramatically. prof. rudalevige: the last word, my dream. i would say two things quickly. i agree with your premise. partly i think this happens by president's claiming the authority to act in a certain area where there has been in action. classification, coordination of the intelligence agencies, this series of 12033 and others before and after it which have changed the rules by which the intelligence community works, that has been done pretty much through executive order. , nottime, those accumulate necessarily the policies themselves, but the expectation that it is the presidents. to do job to doesident's that and not congress.

where the president does not act, there is a premise over time that, if you did not disagree, you must agree. the second piece i will mention is that presidents come up with legal interpretations of what they believe the law says, and those become cited by future cedent.nts as pre if you think about libya in 2011, the president's lawyers read the word powers resolution is not applicable because it was not hostilities. that did not necessarily get great external legal reviews, but it held up enough to allow the president to continue to act as he saw fit. that was based on prior actions by president's that prior administration lawyers had said were right. you have lawyers in the obama administration, who i suspect when they were in academia in the reagan administration, said this was a stupid decision. but once they were in the obama

administration, they say, we have presidents and therefore -- we have precedents and therefore me was the right. you can base your own decisions on past presidents and veterans -- past presidents' decisions, even though this is all within the executive branch and therefore dubious within a system of checks and balances. >> thank you for attending and please join me in thanking our panelists. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] announcer: you are watching american history tv all weekend every weekend on c-span3. to join the conversation, like us on facebook at c-span history. recently, american history tv

was at the american historical association's annual meeting in denver, colorado. we spoke with professors, authors, and graduate students about their research. this interview is about 20 minutes. bill: nathan packard, professor at the marine corps university in quantico, virginia. first, some history -- when was the marine corps first established and why? nathan: 1775 at the outset of the american revolution. it was established to provide a force of seagoing infantry to serve with the navy. for the most part, their duties included serving as police force for the ship's captain, and also provide capability of close combat at sea. ships would pull alongside each other and try to board one another. the marines would provide musket fire, and be a close combat force for when that took place area -- took place. bill: in terms of history, it is e