Unpacking Government: What Are The Limits Of Executive Power?

Mar 20, 2017

Our democracy limits the government’s executive branch to a largely administrative role. 

But that doesn’t stop mayors, governors, and presidents from making big campaign promises on policy. And sometimes they seek creative ways around the limitations of their office. 

Take Washington Gov. Jay Inslee.

Inslee, a Democrat, strode into office in 2013 with an ambitious environmental agenda. The League of Conservation Voters predicted he would be the greenest governor in the country

But his plans for a "cap-and-trade" program that would put a price on carbon pollution soon crashed up against a Republican-led state Senate.

So the governor ordered his Department of Ecology to make a rule capping emissions for the state’s biggest polluters.

He didn't need the Legislature for that. He just needed a process called “rulemaking," which empowers the executive branch to interpret laws and decide how to enact them.

Making Rules

Lee Marchisio, a Seattle attorney whose practice includes governmental authority, said rulemaking gives the governor and his employees broad power to shape regulations.

"You've got legislative, quasi-legislative, in the fact that they adopt rules, which have the force of law," said Marchisio, who is with the firm Foster Pepper. "And then they enforce those laws themselves." 

State agencies adopted more than 500 rules in 2016.

Power like this can confuse our notion of what the different branches of government are supposed to do. After all, it’s the legislative branch that makes laws. The executive branch is just supposed to carry them out.

But, like all executive power in this country, rulemaking has its limits. For one, agency leaders have to go through a process of public notice and hearings before adopting a rule.

Rules also have to be based on authority granted by the Legislature. Inslee’s so-called "clean air rule," for instance, is based on the state's 50-year-old Clean Air Act.

The rule went into effect in October. Businesses affected by it say the governor overstepped his bounds.

Issuing Orders

Rulemaking is one way executives find wiggle room to pass their agendas. They can’t make laws, but they can interpret them creatively.

Another example: executive orders. 

President Donald Trump has signed 17 executive orders since January. The past three presidents issued roughly 300 each.

The president, like a governor or a mayor, is the boss of most government employees. Executive orders are one way they direct those employees to take an action or adopt a practice. Like rules, they have the force of law.

But, once again, it’s a matter of working within a legal box that’s drawn by the Constitution and the legislative branch. 

Trump’s best-known executive orders -- the ones banning refugees and limiting travel to the United States -- are based on his broad powers over immigration and national security granted by Congress, according to White House press secretary Sean Spicer.

"It's very clear that the president is told by Congress, in U.S. code, that he has the authority to do what's necessary to protect the American people," Spicer told reporters in February. "And there's no way anybody above a fifth-grade reading level could interpret that differently." 

Those orders remain tied up in court.

There are different names for the same type of action. Take presidential memorandums. They essentially have the same effect as executive orders, though the process for issuing them is less official. 

Policymaking Or Administration?

The rules of executive power apply all the way down to the local level.

Seattle Mayor Ed Murray has signed 18 executive orders since taking office in 2014. One of them directs his employees to stop idling city vehicles. Another reaffirms the city’s policy of not asking residents about their immigration status

Mayors, and most executive branch heads, also have the power to hire and fire employees and veto legislation they disagree with. 

(At least that's true for cities like Seattle with a "mayor-council" form of government. In "council-manager" cities, like Tacoma, hired city managers run the executive branch while the mayor serves on the city council acts as more of a figurehead.)

Where the president has Congress, a mayor has a city council. 

"The council sets the budget, they establish all the positions, they set the priorities, and the mayor then is to carry things out," said  Jim Doherty, a legal consultant for the nonprofit Municipal Research and Services Center.

Doherty said he often fields questions from local government leaders about where a council's power ends and a mayor's authority begins. The key, he said, is figuring out which actions qualify as policymaking and which fall under administration.

"There are many areas where it's gray, in terms of, 'Is this policy, is this administration?'" he said. "And there are a lot of close calls."

One thing that's clear is that executive orders are more ephemeral than laws. The next mayor can wipe them out with the stroke of a pen. 

When executives wants to do something lasting, they’ve generally got to be salespeople and convince their legislatures to go along, Doherty said.

There are "a lot of differences between local, state, and federal government, but in many ways, it’s the same," he said. "People running for office often talk about what their goals and agenda area, but it takes a lot of cooperation between the branches of government to get that carried out.”

He said that's true whether you're trying to pass a city ordinance or build a border wall. 

This story is part of our series, Unpacking Government. Have questions of your own? Send them to unpackinggovernment@knkx.org.