The issue of federalism has not always been a high priority for presidents. Few presidents have issued executive orders addressing federalism, let alone executive orders of any import. However, the phrase “getting the government off the people’s backs” uttered by President Ronald Reagan and the subsequent declaration that “the era of big government is over” by President Bill Clinton lend a nice backdrop to examine how both presidents addressed federalism through the use of executive orders.
An executive order is supposed to be a clarification of how a law should be implemented, and most executive orders are that. Executive orders, though, do not require congressional action to become effective, but still have the full force of law. As a result, presidents sometimes will use executive orders to implement part of their policy agenda without having to go to Congress to enact legislation—or, in the words of some scholars, to do an end run around Congress.
Ronald Reagan issued the most prominent executive order addressing federalism on October 26, 1987. Executive Order (EO) 12612 expressed Reagan’s desire “to restore the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution and to ensure that the principles of federalism . . . guide the Executive departments and agencies in the formulation and implementation of policies.” It defined “policies that have federalism implications” as those “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Executive Order 12612 contained several directives to federal agencies regarding “policies that have federalism implications.” First, it required executive departments, when formulating and implementing such policies, to be guided by nine fundamental federalism principles. Second, agencies also should adhere to a set of four criteria for formulating and implementing policies, including refraining from establishing uniform, national standards and, when such standards are required, consulting with appropriate state level officials and organizations in developing those standards. Third, the order provided guidelines regarding how to construe regulations with respect to possible preemption of state law. Fourth, executive departments were directed not to submit to Congress legislation that would, for example, regulate the states in certain ways or preempt state law except under certain conditions. Fifth, EO 12612 required executive department heads to designate an official to be responsible for implementing the order. Sixth, the Office of Management and Budget was made responsible for ensuring the federal agencies’ compliance with the order. Finally, agencies were directed to identify proposed regulatory and statutory provisions that have significant federalism implications and, when appropriate, to address substantial federalism concerns.
President Bill Clinton’s first foray into the issue of federalism via the executive order came in 1993 through EO 12875. This order addressed the processes in which state and local officials provided input into regulatory proposals that contained significant unfunded mandates. It delineated that state and local governments “should have more flexibility to design solutions to the problems faced by citizens in this country without excessive micromanagement and unnecessary regulation from the Federal Government.”
EO 12875 would make Clinton appear to support a states’ rights position. However, he angered states’ rights advocates by issuing Executive Order 13083 in May 1998, to replace EO 12612 and EO 12875. Like Reagan’s directive, EO 13083 starts with a set of guiding principles regarding federalism; unlike its predecessor, which focused on a fundamental, philosophical view of the rights afforded to the states under the Constitution, Clinton’s order sought a balance between federal and states’ rights and addressed the practical benefits that arise when states are afforded the ability to experiment in policy making. EO 13083 also removed the requirement that each department have a designated official overseeing implementation of EO 12612. In addition, departments would not have been required to prepare federalism assessments for policies that have federalism implications. Before EO 13083 became effective, however, Clinton suspended it and later repealed it through other executive orders (EO 13095 and EO 13132, respectively) following concerns raised by the National Governors’ Association, among others. As a result, President Reagan’s EO 12612 remained in effect.
Both Reagan’s issuing of EO 12612 and Clinton’s attempt to replace it with EO 13083 reflect what a charged issue federalism can be when a president addresses it through the use of executive orders. The language of both orders reflects the symbolic importance of the issue. But one also should address the question of what practical effect the use of an executive order has on the issue of federalism. At least one major study concludes that the answer is “little.”
The General Accounting Office (GAO) reviewed federal agencies’ rules issued between April 1, 1996, and December 31, 1998. Among its findings, the GAO determined that of the 11,414 rules promulgated during the study period, only 26 percent mentioned EO 12612 in its preamble. When the GAO narrowed its review only to 117 “major” rules, the preamble of only one indicated that it had federalism implications, even though states’ rights supporters claim that nearly all of the major rules had such implications. Finally, the GAO study noted that the OMB, by its own admission, had taken little specific action regarding implementing EO 12612 (although OMB officials did contend that OMB’s requirements under the order are considered as part of OMB’s regulatory review process). Although the GAO acknowledged certain limitations of its study, its report provides at least some evidence that the relationship between executive orders and federalism may be more about symbolic positioning rather than tangible results.
William Clinton, “Presidential Executive Order 13083: Federalism,” Fed. Reg. 63, no. 27651 (1998); Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (Lawrence: University Press of Kansas, 2002); Ronald Reagan, “Presidential Executive Order 12612: Federalism,” Fed. Reg. 52, no. 41685 (1987); and L. Nye Stevens, “Federalism: Previous Initiatives Have Little Effect on Agency Rulemaking,” GAO Report GAO/T-GGD-99-131 (Washington, DC: U.S. General Accounting Office, 1999).