Cass R. Sunstein: Here’s how executive orders actually work (hint: slowly)

Facing urgent national challenges and probably a Republican-controlled Senate, President-elect Joe Biden will need to use executive actions to respond to problems such as COVID-19, economic recovery, racial equity and climate change. To understand how that works, it is essential to ask: What are executive actions, anyway? How do they happen? How fast, and how slow?

The answers speak volumes about the operation of U.S. government, particularly but not only when Congress is gridlocked.

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Early in any new presidency, some of the most important initiatives begin with an executive order or presidential memorandum, by which the president issues a formal, public directive to those who work for him — typically members of his Cabinet. For example, he might direct the secretary of Health and Human Services to take specific actions to control the pandemic, or he might order the Environmental Protection Agency to come up with a plan to reduce greenhouse gas emissions from power plants.

Orders of this kind get a lot of attention, but they merely start a process. It usually works like this:

After a period of weeks or months, a department or agency comes up with a proposed rule, often consisting of hundreds of pages. The proposed rule outlines, and tries to justify, regulatory requirements that the agency plans to impose on the private sector, or perhaps on state and local governments. It might also contain alternatives — for example, more stringent and less stringent options.

Before the public ever gets to see the proposed rule, it is submitted to the Office of Information and Regulatory Affairs, which coordinates a process called interagency review involving numerous people within the executive branch. (I was OIRA administrator from 2009 to 2012.) That process of scrutiny and review can be intense. It frequently takes two months and can take a lot longer.

When the proposal seems ready, it is formally made available for a period of public comment, sometimes for 60 days and sometimes more, especially if it is complicated and controversial. Usually a lot of people have a lot to say. Environmental groups might argue that a proposed climate regulation should be strengthened. Coal companies might insist that it should be abandoned or weakened. The whole process takes place in public. For some examples, have a quick look at regulations.gov.

Agencies will spend a lot of time dealing with the comments, above all those that make concrete objections or suggest specific changes. After a period of months and possibly years, they might come up with a final rule, in which they set out, and try to justify, their ultimate choices. The final rule will then be submitted to OIRA for the same extended process of interagency scrutiny and review before the agency is authorized to turn it into binding law.

If things go unusually quickly, the whole process, from executive order to final rule, can take seven months or so. Nine months is pretty fast. Two years is not uncommon, and it’s unsurprising if a final rule takes three years or even more.

At this point, those who support the incoming Biden administration, and who want to see concrete action under tough conditions, might be starting to tear their hair out. The pandemic, economic recovery, racial inequity, climate change — can’t anything be done more quickly?

The answer is a qualified yes. Under the Administrative Procedure Act, a kind of mini-constitution for the administrative state, agencies can bypass the notice-and-comment process if they conclude that following the ordinary, time-consuming regimen would be “impracticable, unnecessary or contrary to the public interest.” Courts have interpreted this provision to tell the executive branch: If there’s a real emergency, go for it.

In responding to the risk of a terrorist attack, for example, agencies have gotten away with issuing final rules rapidly. And in responding to the pandemic, the administration of President Donald Trump has frequently promulgated interim final rules. With such rules, agencies act immediately in response to a public health crisis while advising the public that the rules, though binding, are meant to be temporary, and that public comments are welcome while they figure out what rule to finalize.

For the Biden administration, there is a big opportunity here, especially if the goal is to respond to urgent public health problems. But there are also two big problems.

First, federal courts are unenthusiastic about efforts to bypass the notice-and-comment process, and Trump-appointed judges might be especially willing to strike down such efforts by a Biden administration.

Second, regulations in some of the high-priority areas, including racial equity and climate change, might not easily be exempted from the notice-and-comment process unless they can be shown to involve an imminent threat to public health and safety — imminent enough to justify dispensing with the ordinary requirement of public comment.

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There is terrific news here for the Biden administration and those who support it: With respect to high-profile issues, there’s a great deal that can be done to turn the federal government around even without Congress. The more challenging news is that executive actions can take a long time — and that focused priority-setting and creative lawyering will be essential to ensure that serious problems are addressed with alacrity.

Cass R. Sunstein is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”