salute, and i keep on going back to the bar because that is a good thing to do. thank you so much for being here, for supporting the creative coalition, supporting the arts, and for you 30 million c-span viewers -- we are in d.c. this is like the super bowl. >> it is like the moon landing. >> how about a hand for diedrich , robin. one more time for blue star families, t.a.p.s., american red cross services to become forces, to the ymca for their been to

military families and innovative use of the arts. i love you guys. have a great dessert. robin, next year maybe take your coat off. thank you. [applause] [laughter] >> joining us now to discuss presidents and the use of executive orders is government professor so much for being with us this morning. guest: great to be with you. host: we will start by talking about an overview of executive ordinance. tell us what they are and what gives the president a power to use them. guest: executive orders are not in the constitution explicitly but they flow from the president's power in article two to faithfully execute the law,

and the grant of the executive power to the president at the very beginning of article two. presidents have used them since the beginning of the republic, every president has issued at least one order, william henry harrison did, even though he died quickly after taking office. they are accepted and they are orders to the executive branch. and executive orders, formally are published in the federal register and often produced with great pomp and circumstance but they are just one part of a whole category of executive actions and directives. this include memoranda and national security directives. they include guidance documents to agencies about what kind of regulations to issue. executive orders are the most formal of the category of presidential directives but they are many directives that get

mixed up together in a jumble. host: this is a topic you are familiar with. you are an author of the book " by executive order: bureaucratic management and the limits of presidential power." often we hear that it is the president issuing a presidential order, that there is a process and a lot involved. tell us who is involved in putting together an executive order and what the process looks like? guest: the final product is what we see on tv which is the president signing and then holding up perhaps a big sharpie signature in a folder containing a new executive order. but there is often a long back story to that directive. anyone really can oppose an executive order in the white house and in the various executive agencies. since the 1930's there has been a process called central clearance which is a peer review process run by the office and

management of -- office of management and budget. and that is a manager conceit that was created back in the 1920's and has been a key agency since the 30's. their job is to receive these draft executive orders, send them out to different agencies who might have an interest, get feedback and find out if this will work and if it is legal. importantly, the department of justice is supposed to look at all executive orders for "form and legality," to make sure that the order has been properly formatted but also is legal under the president's powers. it is worth noting that the executive order can only do what the president has the power to do, whether in the constitution directly or delegated through an act of congress. there are arguments about whether an executive order goes too far. those orders will often go to

court. the internal process is quite multilateral. we think of this as unilateral, but it is very rarely the president just sitting down to issue the order. there is a big back story and that is intentional, to make sure that the expertise is actually brought to bear on the order itself. host: we are talking with professor andrew rudalevige. he has a professor of government at bowdoin college. we are talking to him about the use of executive orders and he will be with us for the next 40 minutes or so. if you have a question or comment you can start calling in. democrats, 202-748-8000. republicans, 202-748-8001. independents, 202-748-8002. professor, i wanted to ask you and you mentioned it and you might see it on tv, a president

signing an executive order and holding it up for the camera. what happens once that is signed and when does it go into effect? guest: well, i hate to use the academic answer, but it depends. it depends on what the order says. sometimes they are self-executing. they might change something administratively within an agency. not executive or -- not all executive orders are big, sweeping or important. others might ask an agency to work on solving a problem and look at an issue in a whole of government sense. sort of a planning to make plans kind of order. those might not have much immediate impact at all, although they serve the purpose of a president showing that he cares about an issue and wants to take action. it depends on who is being ordered to do what in terms of what happens next. we know that the presidents often complain that executive

orders are not fully implemented. this is hard to study because once the order leaves the public pages of the federal register and goes down pennsylvania avenue into one of the government office buildings we do not quite see it as academics or often even as members of congress or political actors. we know that not all executive orders are fully implemented. we know that some are not meant to be fully implemented. some are for show. if you look at the text over the last number of years, really starting with the obama administration but ramping up significantly under trump and biden, you have long sections at the beginning of the orders which are essentially press releases, preambles or policy sections that lay out what the president wants to achieve and it is not actually clear that it being achieved is the important part. the president want us -- wants to say i am ordering this to be

done and if it does not get done there is some hope that the public might not notice that as romantically. host: an executive order is enforceable as long as the action is within the president's constitutional authority. give us something as -- and ask that -- give us an example of something that will fall within and without that authority. guest: let me just say that executive orders are literally orders to the executive branch. so, a member of the public would not receive an order from the president in that form. indeed, the president does not have the power to order you to do anything unless you are an active member of the armed services. the general rule is that presidents are relying on the power of federal government to have knock on effects that will have effects on the wider public. a good example is contracting procurement. presidents for a long time have taken advantage of the fact that

the federal government buys a lot of stuff from the fight -- from the private sector to place conditions. john f said -- john f. kennedy issued an executive order designed to prevent any federal contracts going to those who discriminated in the area of housing. we have seen other uses in the civil rights arena to try and limit the contracts that go out. if you and the private sector want to federal contracts, you have to pay attention to the conditions placed on that. so, it is not a general order to the public but it has sweeping impact when you are talking about half a trillion or more of funding that is going out from the federal government to the private sector. president obama, for example did not get a minimum wage increase through congress, but he did order the federal contracts only go to federal contractors who paid a certain minimum wage. as the present is contractor --

president is contractor and chief he -- he has the authority to do that may be the most famous example of an order that was overturned is harry truman's back in the early 1950's during the korean war. he had ordered that the steel meals -- deal mills be nationalized and brought into american governmental ownership because there was a threat of a strike. so the famous steel seizure case results. truman argued that a strike would harm national security and undermine the korean war effort. and, therefore using his powers he said as commander-in-chief he could order that the steelworkers effectively became federal employees and unable to strike. this went to the court, and the supreme court famously ruled that no, president truman had

overstepped his powers and this was not something that he could do. and, therefore steel meals returned to private ownership and labor negotiations proceeded on that basis. you could have some pretty high-stakes, high drama confrontations over executive orders or they could just be administrative housekeeping. it marries a lot. host: we have callers waiting to ask you questions. we will start with fred in pennsylvania, line for democrats. caller: good morning. i would like to say that if a president uses executive orders to legislate his entire presidency as donald trump did his first presidency and intends to do in the second he will bypass the house and senate. the senate and the house are republican and he has a republican supreme court, and he can get away with being a dictator. this is something that should be stopped immediately. we should get rid of executive

orders in the case of environmental protection and national emergency to protect the country, not to legislate his own personal agenda that he makes up in his campaign. this is what i would like to say and i would like to get your opinion on this. thank you. guest: sure. first a big shout out to camp hill, pennsylvania. i used to live in carlisle, down the street. the charge of dictatorship is a long-standing one. there was a book about franklin roosevelt called "roosevelt: the democrats are dictator," back in the 40's. when i dug into the presidential libraries i found that there were in some administrations form letters that they had developed when people wrote in saying this is a dictatorial action you are taking and there is an explanation, not even so much of the action, but of the role of executive orders. again, they are only legal when

they are applying actual presidential power. when they are grounded in powers that the president has. one thing that has increased their appeal, first of course we know that congress finds it hard to act, especially in its current polarized version. but, congress has delegated a lot of power to the president over time. often when we see a president using an executive order to try and guide the actions of a federal agency, they are looking back to old statutes. and, there are plenty of those on the books. and some of them should be reined in. you think about the national emergencies act that grants the president an awful lot of authority to declare a national emergency and then to issue executive orders under some statutes that are unlocked by virtue of that declaration. we could look at something at

the insurrection act and things going back on immigration. when we look at for example president trump's travel ban in his first term. the first version caused chaos at the beginning of 2017. it was in fact withdrawn and replaced. it had not gone through the process of bureaucratic feedback that i had talked about and it did not work. it went through a couple of other iterations and finally emerged later as a proclamation and not an executive order. it went to the supreme court and the supreme court said it is ok because the way the law was written it "exudes deference" to the present -- to the president. so if congress are going to pass laws that exude deference, we have to accept that presidents will take advantage. i would place a lot of the concern with congress being unwilling to fulfill its own constitutional imperatives and a lot of narrowed -- in a lot of

areas and handing that power off to the president. host: this is coming in on x from jimbo in bakersfield, california. he is an independent and says " what happens when a legal executive order conflicts with laws in a state, like california?" guest: again, the executive order itself or any kind of federal directive is going to be to the actions of the federal government. there is a supremacy cause whereby if laws directly conflict, then the federal law would play out. but, there is a lot of play in those laws. we are going to see some interesting and sometimes scary conflicts as we sort of run up against the bounds of federalism. if you think of president trump's stated immigration agenda and that some of the states lack of excitement, i think it is safe to say, about

that agenda. we could see efforts by the federal government to try and overrule state action, but i am not sure that will always work. states have a lot of otani over different policy areas. i think this will be battled out. if the executive order is legal under federal law, and there is a direct conflict with state law , federal law will prevail in those cases. host: let us hear from alan in mississippi. line for republicans. did morning. caller: good morning. am i on? host: yes. caller: the general -- the gentle man is still talking on my channel -- on my television. host: do not pay attention. there is a delay. caller: isn't it amazing that all of a sudden now president trump is going to become president that dictatorship of

the executive orders has come to the fore. it is amazing how these democrats will think of these programs. when president biden became president, his first day in government was to make nonsense executive orders regarding energy, his agenda on greenpeace and put this country into a four year flat spin down. now, i am sorry to say to the democrats, that president trump is going to correct all of their wrongdoings over the last four years. and make america great again. so, all the controversy

regarding executive orders is just pure democratic publisher the to trot -- club is -- pubilcity to put another spike in president trump's premiership. thank you for taking my call. host: professor. guest: as i mentioned, dictatorship has been a very bipartisan charge against presidents for a long time when they use executive authority. there is indeed, if you go back let us say to the obama administration. 2014 when congress had gridlocked president obama and obama promised he would use his pen and his phone to move an agenda forward. and he was accused of a literal dictatorship. there was a report i remember from the house report -- the house was republican at the time, and the house report -- majority leader put out a report

charging obama from overstepping his constitutional bounds. these go back to john kennedy, franklin roosevelt, ronald reagan. we have had effectively whenever -- in the polarized state of american parties we do have quite strong likelihood that those who like the current president will say that issuing executive orders as a function of strong leadership and those who do not say it is dictatorship and then those positions can switch white quickly and dramatically. a lot of what they do at the beginning of terms is to revoke the caller mentioned this. and promised that president trump will do the same. and promised that president trump will do the same. executive orders can be fragile.

some have a long time and some last only for the duration of a presidential term and can be overturned. we will see a lot of orders overcoming -- overturning past orders. host: something that you pointed out at the beginning was that every president has signed executive orders. if you -- for anybody interested the federal register has all of the executive orders issued by presidents since 1937. it looks like president biden has signed 160 including 11 just this year. president elect donald trump signed 220 during his turn. obama, 277. george w. bush, 291. you can go onto the website and find them broken down by year

and read what each of those all are. judy in phoenix, arizona. line for democrats. good morning. caller: i do not have access to internet, but i was watching on the news in the past week or so saying that biden had announced a major opinion that the e.r.a. is ratified, enshrining its protections into the constitution, a last-minute move that some believe could pave the way to bolstering reproductive rights. does that have anything to do with your topic right now? guest: in a way it does because, as i said earlier a lot of the things that presidents do our executive actions and not specifically executive orders. every time the president directs something it is in order so it makes sense to talk about a lot of things as executive orders that are not.

a lot of things happen through regulation in the different government agencies. and those are not conducted by executive order. you know, even some of the things that we automatically think of like daca, issued by president obama. there is not even a presidential document associated with it. it was done by the department of homeland security at the behest of the white house. it is not unfair to talk about it as an executive directive, it is not in order. the statement on the e.r.a. that president biden issued recently is sort of in the cap -- is in this category, a statement but not an executive order. it will not be in that category a federally registered pages that was just referred to. it is a statement saying that he believes that the equal rights amendment was in fact ratified it and sufficient states had

been ratified -- have ratified it and it should be part of a cotton -- of the constitution. that does not make it show -- make it so. it is an intriguing claim to make a few days before leaving office. there are legal scholars that agree that the deadline that congress placed on the ratification of what would be the 28th amendment, the e.r.a., congress did not have the authority to place a deadline on that ratification, 38 states needed was only reached quite a ways after the statutory deadline that congress had placed and some other states decided they did not want to ratify it. it is very far from being a clear issue. i suspect that president biden's action in this case is what i referred to as almost a press release order. it is a statement of belief, i do not think we will have a lot of practical impact with that. host: dave in michigan.

line for independents. good morning. caller: can you hear me? host: yes. caller: you came around to what i was going to get out. who has the right to do amendments and what length of time as the time frames on these and what can be amended when it is reviewed and legalized. and basically you know where i am getting at. i will let you carry on with that. that is all i have got. guest: not technically an executive order, but the process for amending the constitution is in article five. usually, in all of the cases so far in fact, it has come first through a super majority of congress which is required to vote on a resolution that sends the proposed amendments to the states and then you need three quarters of the states to sign off as well. and there have been some amendments that have reached

that level of ratification after a very long time. the 27th amendment was originally sent out to the states as part of the will of rights. there were 12 sent out way back in 1789. only 10 of them became the bill of rights. one of the extras was rediscovered years later. this is the 27th amendment which i knew that i do not need to explain to c-span viewers. for those casually tuning in. it make sure that there is an election intervening between a vote to raise the pay and the actual pay raise so the voters can weigh in. that was adopted in 1992 were something like that, long after it had been provided. in the case of the equal rights amendment when congress approved it they put a deadline on the ratification and they said if it is not approved within seven years, then the ratification is over and that is your time window for states to act. it did not get to that level when jimmy carter was in office.

he proposed extending the deadline and it was until 1982. and again, not enough states got to that point by the deadline. and so, the -- the amendment is considered null and void. there has been some argument about what makes it part and the legal process, technically has the archivist of the united states. she does not have power to do anything on her own, but when she receives the requisite number of certificates from states saying that they ratified she would say it is done and official and is now part of the document. my understanding is that the office of legal counsel and the department of justice has said that is not the case with regards to the e.r.a.. i think even president brightman -- president bryden -- biden's

statement does not change that. usually it is clear you get to the right number of states and it is done, but this has not been the case. host: bill in albany, new york. line for republicans. caller: i would like to ask andrew regarding executive orders. i looked up when president biden put the pause on drilling of oil. if you could help me out with that. because when i read it, it is a lot of legal terms in there that i was not sure of. but i wanted to know if that paused executive order is still on the books for not drilling whether it is private or public land. i could not see that. because, i feel like when that went on, that is when the price of gas went up and that is when we started getting inflation because the trucks had delivered

things to the stores and they had to raise their prices dramatically, almost double or triple the price of gas and we had inflation. is that executive order still on the books? and, if it is, what did it do and what does it say regarding inflation and gas? and do you think that president trump can reverse that and get it off there on monday? guest: well, so, as you know president biden has been trying to limit offshore drilling. and i think there was a subsequent order in the last couple of weeks that expanded the ban on offshore drilling, although it is worth noting that american domestic oil production is way up overall over the last number of years. it has not affected the overall supply as much as it has

affected where companies can look for it. going back to the original order, yes. these are basically -- congress passes broad statutes that give the president discretion to decide on the specifics. sometimes that power is granted directly to an agency or department like the department of energy to issue regulations about how and when drilling might be allowed in certain places. often as isa brett -- suggested there will be interagency discussion because the department of the interior and noaa and others might have ideas especially as you get into public waterways. it would apply only to public land. but once you get far enough offshore it is all public. there is i think, the order as far as i know is still on the books. and there would be a process

that in law for a future president to rescind that should they desire to do so and president trump has talked eagerly about rolling back that order and other things that he sees as limits on fossil fuel production. host: what are some other ways that executive orders can be rolled back or revoked? guest: by congressional action. congress could say no, we do not like what you have done so they will directly overturn that order in the statute. or they will reign in some of the broad delegation and discretion that they had granted a president earlier. and that can certainly happen when they decide now i see what you can do with the discretion that we can give you we need to shift that and rein it in. the presidents have an advantage where they can act while congress has congressional -- collective action difficulties

and takes a wild to act. courts can weigh in. executive orders are effectively instruments for executing the law. the president is commanded in the constitution to faithfully execute the law. often in our system the courts get to decide whether a particular kind of implementation is faithful with this text of the statute or not. and they have weighed in with a lot of different ways. this was not technically an executive order but president biden's efforts to forgive student debt through some older statutes that they had found governing

host: jonathan, connecticut, one for democrats. caller: thank you for c-span and thank you for taking my question. i am a federal employee insecurity, and the commissioner martin o'malley signed an agreement to lock in our telework as it stands now. two part question. could you talk about the limits or the ability of the president to renounce that through an executive order, and another strategy i have heard of his you want to work from home you will be paid at the all of united states rate, which does not include things like new york pay. thank you very much. guest: i think actually dealing with the civil service and civil service act will be interesting to watch play ford in the next couple of years -- play forward

in the next couple of years. the outgoing president is more sympathetic to bargaining by employees than the incoming president, so it will be interesting to see what actions are taken to overturn the ways that biden administration has sought to bolster some of the agreements reached by federal employee unions. i am not an expert on the telework question. i have heard that mentioned as a potential way to give employees incentives or bludgeon them into coming back into the office full-time. there are a myriad of regulations that come out of the office of personnel management, so i think it was the