The view from the Oval Office: understanding the legislative presidency

The Journal of Legislative Studies ISSN: 1357-2334 (Print) 1743-9337 (Online) Journal homepage: https://www.tandfonline.com/loi/fjls20 The view from the Oval Office: understanding the legislative presidency Jeffrey A. Weinberg To cite this article: Jeffrey A. Weinberg (2018) The view from the Oval Office: understanding the legislative presidency, The Journal of Legislative Studies, 24:4, 395-412, DOI: 10.1080/13572334.2018.1540119 To link to this article: https://doi.org/10.1080/13572334.2018.1540119 Published online: 09 Nov 2018. Submit your article to this journal Article views: 208 View Crossmark data Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalinformation?journalcode=fjls20

THE JOURNAL OF LEGISLATIVE STUDIES 2018, VOL. 24, NO. 4, 395 412 https://doi.org/10.1080/13572334.2018.1540119 GUEST ARTICLE The view from the Oval Office: understanding the legislative presidency Jeffrey A. Weinberg Independent Scholar 1. Introduction If you re going to understand the game, you have to know the rules. This is a guide to understanding the U.S. legislative process from the standpoint of the president, the legislative presidency. It will explain the tools that are available to the president and the Administration to enhance the president s effectiveness in influencing the legislative branch, the Congress. The guide s focus is authorising legislation, which establishes new programmes and amends current law for programmes. This guide discusses the following tools that are available to the president: the veto; veto threat; proposing legislation; people; the legislative clearance process; tools to influence the Congress; enrolled bill memos; regulations; executive action; and the bully pulpit. 2. The constitutional framework The Founders, meeting in Philadelphia in 1787 to draft the U.S. Constitution, embraced a fundamental principle with respect to Congress and the president concerning legislation: that the Congress should predominate over the president. The beginning of the Constitution Article I, Section I states that all legislative powers reside in the Congress. However, the president is given two legislative powers by the Constitution, one negative and one positive. The negative power is well known; the authority to disapprove (veto) a bill. The positive power, a well-kept secret, is the requirement to propose such measures as he deems necessary and expedient. Also, the president is required to ensure that the laws are faithfully executed. The president s oathofoffice, which is specified in the Constitution, requires the president to preserve, protect, and defend the Constitution. CONTACT Jeffrey A. Weinberg JeffreyAWeinberg.JLS@gmail.com 2018 Informa UK Limited, trading as Taylor & Francis Group

396 J. A. WEINBERG 3. The president s negative legislative power: the veto To become law, a bill (or joint resolution) must pass the House and Senate in identical form and be presented to the president. The president then has 10 days (specified in the Constitution) to decide whether to sign it or to veto it. If the president approves the bill, he signs it into law. On rare occasions a president will let a bill become law without signing it, which occurs automatically after the ten-day period. If he disapproves a bill, the president vetoes it. The Constitution requires the president to return a vetoed bill to the Congress, within 10 days of its receipt at the White House, with an explanation of his objections (a veto message). 1 The Founders gave the Congress the final word on whether or not a bill becomes law. If the president vetoes a bill, the veto can be overridden by a two thirds majority vote in both the House and the Senate. This power to override a president s veto exemplifies the Founders intent for the Congress to predominate over the president. When the Founders drafted the Constitution, the governors of the States had an absolute veto, without the state legislatures being able to override it. 4. Veto threat A tool that presidents have developed that is related to a veto is a veto threat. Presidents may tell the Congress that unless it makes changes to a bill, or if Congress sends him a bill on a specific subject, that he will veto it. Before issuing a veto threat, the White House staff usually tries to determine whether or not enough votes can be mustered to sustain the veto, either 146 votes in the House or 34 votes in the Senate. These numbers are one third plus one, if all Members vote on the override. Not all veto threats send the same message there are three gradations of veto threats. The strongest veto threat states outright that the president will veto the bill. The intermediate threat is that the President s senior advisors or the President s advisors will recommend a veto. 2 The weakest form of veto threat is that one or more Cabinet Secretaries will recommend a veto. Contemporary presidents have generally been able to sustain their vetoes, which makes the veto threat an effective tool. Consider the period from Presidents Kennedy through Obama (1961 to 2017); there have been 374 vetoes but only 38 successful overrides by Congress. (For a table of presidential vetoes and overrides by Congress, see: http:// history.house.gov/institution/presidential-vetoes/presidential-vetoes/) Although the Constitution says that Congress shall vote to override a president s veto, such a vote is not guaranteed. The majority leadership of the House and Senate decides whether to schedule an override vote in its Chamber. An override vote is generally not scheduled if the leadership does not think that it will succeed, knowing that there is not support from two-

THE JOURNAL OF LEGISLATIVE STUDIES 397 thirds of its Members. Also, the president and the Congress may have resolved any issues with the bill making an override vote unnecessary. 5. The president s positive legislative power: proposing legislation Article II, Section 3 of the Constitution, requires the president to propose to the Congress such measures as he considers necessary and expedient. This is the basis for modern presidents (defined by political scientists as beginning with Franklin D. Roosevelt (FDR)) in 1933 having a legislative programme of proposals that they want the Congress to enact. Since each Congress only lasts for two years, and whatever legislation has not been enacted into law has to start the process from the beginning, in the next Congress, presidents seek to set the agenda for Congress to address their legislative priorities. Presidents have traditionally used their annual State of the Union address to describe their legislative programme for the Congress and the public, and to try to persuade the Congress to work on their priorities. Also, the president s annual Budget usually includes proposals for legislation amending current law and sometimes proposing new authorities. Presidents have used the tool of proposing legislation in different ways. From FDR through Clinton, the practice was for the executive branch to draft and transmit to the Congress their detailed proposals in the form of complete bills, with section-by-section analyses, for Congress to consider. Bills are drafted by the lead Department 3 and typically transmitted by the Cabinet Secretary. High profile bills are transmitted by the president, but he does not have his own staff to draft bills. Beginning with George W. Bush, the Administration generally stopped transmitting draft bills for many of its legislative proposals, a practice continued by President Obama. Instead those Administrations typically provided Congress with Goals and Principles, or outlines for their major legislative proposals and left the drafting of the specific language to Congress. For example, George W. Bush did not transmit a bill for his signature education reform known as No Child Left Behind 4 and President Obama did not transmit a bill for his health care reform proposal, the Affordable Care Act. 5 This recent practice of not transmitting draft bills has empowered Congress to set policy by crafting the details of legislation in the absence of specific proposals from the president. The Trump Administration has transmitted dozens of draft bills, including bills to carry out certain Budget proposals. Like other contemporary presidents, President Trump did not transmit a draft bill for tax reform; the Administration released a one-page outline of its goals for that legislation. With respect to one of his priorities, infrastructure legislation, in his 2018 State of the Union address he said I m calling on Congress to produce a bill instead of announcing that he would transmit a bill.

398 J. A. WEINBERG 6. People 6.1. The first lady The first lady has the best access to the president, and she has often served as his eyes and ears. They have their own staff and offices in the East Wing of the White House. Hillary Clinton was the only first lady with an office in the West Wing of the White House, and she was the lead policy official on the president s health care reform legislative proposal. First ladies usually focus on a single domestic issue, but Michelle Obama was an exception; she was actively involved in multiple issues. First ladies are able to perform the important function of telling the president that he has made a mistake, and they often weigh in on personnel decisions. 6.2. Leaders of the house and senate The president is the leader of his political party and its fundraiser in chief. To accomplish his legislative goals he must be able to work with the leaders of the House and Senate. The most effective presidents have been able to collaborate with both parties in Congress. The president s personal relationship with the Speaker of the House and the Senate Majority Leader affects his ability to influence the agenda of the two Chambers, because the legislative leaders are able to exert influence over which bills are considered for a floor vote. 6 Regular communication between the president and the leaders of Congress is essential. A tool that some presidents have used successfully is to institutionalise regular meetings with the bipartisan leadership of the House and Senate. Also, a president may meet separately with his own party s Members of the House and Senate to try to rally their support for a bill as a matter of party loyalty. President Reagan used to say that people are policy. That includes Cabinet Secretaries and agency heads, but the key people who act as tools of the president to advance his legislative priorities are: the vice president, the White House Chief of Staff, the Assistant to the President for Legislative Affairs, and the Director of the Office of Management and Budget. 6.3. Vice president Article I Section 3 of the Constitution provides for the vice president to serve as President of the Senate and to cast tie-breaking votes in the Senate. The vice president s role as President of the Senate means that he can preside over the Senate whenever he chooses to do so. However, generally they only do so if they have been alerted that there may be a tie vote, in which case they will be able to break the tie. Because of this constitutional role as President of the Senate, the vice president has historically had a suite of offices on the Senate side of the Capitol. 7

THE JOURNAL OF LEGISLATIVE STUDIES 399 The vice president s influence with the president is affected by their personal relationship and by the vice president s access to the president. Vice President Rockefeller and President Ford started the tradition of having lunch together, just the two of them, once a week. This time together has been continued by their successors. It wasn t until Vice President Mondale (in 1977 with President Carter) that the vice president was given an office in the West Wing of the White House. This was indicative of the transformation of the influence of the vice president achieved by Carter and Mondale. (In contrast, while Truman was FDR s vice president, he did not have access to the president s war room in the White House. During the 82 days that they served together, they only met alone together twice.) Since Mondale s time, the vice president has had an office in the West Wing, as well as offices in the Eisenhower Executive Office Building, and on the Senate side of the Capitol. 8 In recent presidencies, it is the vice president, rather than the president, who has had more extensive experience as a legislator, as with Mondale (Carter), Gore (Clinton), Cheney (George W. Bush), Biden (Obama), and Pence (Trump). The vice president has become an important tool for a president as a liaison to Members of the House and Senate, as well as a key legislative strategist and negotiator. Political negotiations are an art form unlike other negotiations, such as business negotiations. Therefore, a vice president s experience serving as a politician can be beneficial to a president. 9 An important way for a vice president to increase his influence is to seed (place in policy positions) the Administration with his loyalists. Vice President Cheney was the master seeder. Another way that some vice presidents have enhanced their role is by attending the weekly lunch held by Senators of their party, at the invitation of the party s Senate leader. 6.4. White house chief of staff It has been observed that in recent White Houses, politics and policy intersect in the Chiefs of Staff.An effective Chief performs the dual roles of gatekeeper for access to the President and honest broker for the presentation of advice to the president. A Chief of Staff can be an important tool in enhancing the effectiveness of a president with the Congress. The Chief usually runs the White House staff and is a contact point (spear catcher) for Members of the House and Senate. 6.5. Director of white house legislative affairs The staff of the Office of White House Legislative Affairs (WHLA) serves as a tool of the president to convey his message on legislation, as well as to provide intelligence to the president about the views of Members of the House and

400 J. A. WEINBERG Senate. WHLA coordinates with the Offices of Legislative Affairs in the Departments on bills and issues of interest to the White House. 10 The Office is headed by a Director who is a senior White House staff member. Typically, there is a relatively small staff of assistants who cover either the House or Senate (referred to as specials because their title is special assistant to the president). Under Presidents George W. Bush and Obama, each special was responsible for a number of committees of either the House or Senate. Also, they had individual Members of the House and Senate assigned to them so that they could try to develop relationships with them. President Trump s initial Director of WHLA, Marc Short, was a former aide to Vice President Pence (an example of seeding) when Pence served in the House of Representatives. Short was an influential advisor and also a spokesman for the Administration. In July, 2018, he was succeeded by Shahira Knight who, as a staff member of the White House s National Economic Council, had served as the White House liaison with the Congress on the 2017 tax legislation. 11 6.6. Director of the office of management and budget (OMB) The OMB Director is best known for his role in producing the president s annual Budget and his role trying to influence appropriations legislation that sets annual spending levels for the Government. With respect to authorising legislation, the Director is responsible for the legislative clearance process on behalf of the president. In addition, the Director is responsible for the review of major regulations, which are drafted by the Departments. 7. The legislative clearance process Legislative coordination and clearance is a tool used by every modern president to ensure that the Administration has one coordinated position, the president s position, on authorising legislation. The goals of the process are to ensure that all Departments send a consistent public message on authorising legislation and that the most convincing rationale is stated to support the Administration s position. The process is described in OMB Circular A-19, which was last updated in 1979. (https://www.whitehouse.gov/wp-content/uploads/2017/11/circular- 019.pdf) The process has been used, basically unchanged, by all modern presidents, because it is such an effective tool. The system is administered by OMB s Legislative Reference Division (LRD). 12 The basics of the process are: (1) Circular A-19 applies to all Departments. 13 However, A-19 does not apply to independent regulatory agencies such as the Federal Reserve

THE JOURNAL OF LEGISLATIVE STUDIES 401 Board, Securities and Exchange Commission, or the Federal Communications Commission. 14 (2) Circular A-19 applies to all aspects of authorising legislation and, by practice, to testimony for oversight hearings on a Federal programme or a Department. (3) Circular A-19 does not apply to Budget and appropriations testimony, which are covered by another OMB Circular, A-11. (4) Circular A-19 says that before publicly conveying views on authorising legislation, the Department must submit its views to OMB for coordination and clearance. The clearance process covers the Administration s draft legislation; goals and principles and outlines for proposed legislation; testimony for hearings on authorising legislation and for oversight hearings; responses to questions for the record after a hearing; views on bills before a markup; Statements of Administration Policy (discussed on page 10) before floor consideration of a bill; signing statements; and veto messages. Consider a scenario involving testimony by multiple Departments on an authorisation bill pending before a House or Senate Committee. Each Department that has been invited to testify is responsible for drafting and internally clearing its proposed testimony. This coordination function at a Department is usually performed either by staff in the General Counsel s Office or in the Legislative Affairs Office. The draft testimony is transmitted electronically by the agency to the LRD staffer with responsibility for the subject. The LRD staffer reads the testimony as well as the text of the authorising legislation that is the subject of the hearing. In consultation with the OMB programme examiner, who has responsibility for the programme or subject, the LRD staffer will decide which other Departments should be included in review of the testimony. Also, which White House offices; Executive Office of the President components; or other OMB offices should be asked to review it. The LRD analyst prepares a Legislative Referral Memorandum listing the Departments and other reviewers and sets a deadline for receipt of signoff or comments. A fundamental problem of the clearance process is short deadlines for review. Sometimes this is caused by a Congressional Committee calling a hearing on short notice, but usually it is because Departments take a long time to write and internally clear their draft testimony before transmitting it to OMB for clearance. A typical deadline for review of draft testimony is only 24 to 48 hours. The most useful responses from reviewers provide the specific language change recommended and a brief rationale for the change. The least useful are general comments like clarify, expand, or shorten without the actual edits.

402 J. A. WEINBERG LRD works with the Departments that are testifying and other reviewers to be sure that the comments are addressed satisfactorily and then clears the testimony for transmittal to the Committee. In cases where there is disagreement among reviewers about the Administration s position on a bill, the issue may escalate to policy officials at OMB and the Departments, as well as White House staff. The rules of most Committees call for testimony to be submitted 48 hours in advance of a hearing, to give Members and their staff time to review the testimony and prepare questions to ask the witnesses. Unfortunately, this deadline is often not met. At the hearing, most Committees submit the cleared testimony for the hearing record, but the witness is asked to present a brief oral summary of the testimony in about five minutes. These summaries are not cleared by OMB, but they are expected to be consistent with the cleared testimony. The witness for a hearing is selected by the Department without coordination with OMB. Because the witness is expressing the Administration s policy on authorising legislation, the witness is expected to be a policy official, rather than a career civil servant. Typically a witness would be an Assistant Secretary with jurisdiction over the programme/subject of the bill. 15 After a hearing, Members of the Committee may submit follow-up questions to the witness for the hearing record. Responses are drafted and cleared internally by the Department and then submitted to OMB for circulation and clearance. Oversight testimony is also cleared by OMB. Typically the subject is Department-specific, for example an issue about how a programme is being administered, so its circulation would usually be more limited than for a hearing on authorising legislation, which usually affects a number of Departments. For oversight hearings, a civil servant may represent the Department at the hearing. 8. Influencing the congress A president s ability to influence the Congress depends, to a large extent, on whether there is unified or divided government. A president is most effective influencing the Congress when his party is the same as the majority of Members of the House and Senate. 16 To understand how a president is able to influence the Congress, it is necessary to understand the legislative process in the Congress. One perspective is regular order, which refers to how Congress is supposed to consider authorising legislation. An authorisation bill to amend a current law or establish a new programme is introduced by a Member of the House or Senate, and

THE JOURNAL OF LEGISLATIVE STUDIES 403 the bill is assigned a number in the order in which it was introduced. 17 Only a Member, not the president, can introduce a bill in the Congress. In recent Congresses, thousands of bills have been introduced but only about three to four hundred have become law. These laws run the gamut from the naming of post offices to major legislation creating or reforming programmes. Each introduced bill is referred to one or more House Committees and one Senate Committee, which have subject matter jurisdiction over the bill. 18 The Chairman of a full Committee, in consultation with party leadership, decides which bills will move forward and which won t. If a bill makes it through all steps of the legislative process, typically the order of events for a bill, after introduction and referral to a Committee, consists of: a hearing by a Subcommittee or full Committee; perhaps markup by a Subcommittee; markup by a full Committee; reporting by the full Committee; and floor consideration. 8.1. Hearing At a hearing, subject matter experts are invited by the Committee to testify about the merits of the bill and possible changes to it. These include officials from one or more Departments who are invited to present the Administration s views on the bill. The testimony can indicate support for or opposition to the bill with the rationale for the position. It may also discuss specific provisions of the bill. 8.2. Markup During a markup, Members of a Subcommittee or Committee are able to offer specific amendments to the bill that are voted on by the Members. Sometimes for the markup a substitute for the original bill is offered and is marked up instead of the bill as introduced. Prior to the markup, a tool that is available to the Administration is to supply views on the bill in the form of what is known as a views letter from the lead Department or talking points, which are conveyed informally by the lead Department, requesting that changes be made during the markup. Beginning with the Obama Administration, views letters have not been regularly transmitted. If the Justice Department has identified a constitutional concern with a provision in a bill, the concern may be transmitted formally by letter or informally with talking points at various stages of the process. Preferably the constitutional concern should be transmitted before the markup so that it can be addressed at that early stage. When the markup is completed, the Committee votes on whether or not to report the bill, as amended, to the Chamber for floor consideration.

404 J. A. WEINBERG 8.3. Report A House Committee is required to report the bill with a written report. A Senate Committee may or may not issue a written report. A report includes an explanation of the bill and a cost estimate from the Congressional Budget Office. If the Administration has transmitted a views letter it would be printed in the report, but talking points are not included. 8.4. Floor consideration Article I Section 5 of the Constitution authorises the House and Senate to each set its own rules. In the House, a major bill would likely be considered subject to a rule governing the terms of debate, which is reported as a resolution by the Rules Committee, and which must be approved by a vote of the House. Non-controversial bills are typically considered by the House under suspension of the rules. These bills are not subject to amendment, but require a twothirds majority to pass. The House Majority Leader issues a schedule, usually on Thursday or Friday, of the bills that will be considered the following week (in recent Congresses, the House is only in session for four days, Monday through Thursday or Tuesday through Friday). In the Senate, most noncontroversial legislation is called up and passed by unanimous consent, and there is often no formal advance notice to the public of which bills will be considered. 19 A noteworthy rule of the Senate is the number of votes required to end extended debate (a filibuster) on a bill and proceed with its consideration. Currently the rule is for 60 votes. The practical effect of this rule is that calling up a controversial authorisation bill, and then passing it, may require two votes of 60 votes each, instead of a simple majority of 51. 8.5. Statement of administration policy (SAP) Just before floor consideration of a significant bill by the House or Senate, the Administration may use the tool of issuing a Statement of Administration Policy (SAP). A SAP is not issued at any other stage of the legislative process. A SAP enables the Administration to convey its formal position on a bill (e.g. support House passage or oppose House passage) simultaneously to Members and staff of the Congress and to the public. A SAP can also be used to request amendments to a bill prior to passage, as well as to convey a veto threat. SAPs are made public by posting them on OMB s website, as soon as they are issued by OMB on behalf of the Administration. The decision whether or not to issue a SAP is made on a bill-by-bill basis by staff of OMB and WHLA. If a SAP opposes passage of a bill because of specific issues or if it includes a veto threat, it is most effective if the message was

THE JOURNAL OF LEGISLATIVE STUDIES 405 already conveyed to the Congress at an earlier stage in the process to provide an opportunity for Members to fix the bill or try to stop it from going to the floor. 8.6. Conference committee Major authorising legislation usually passes the House and Senate in different forms. Under regular order, a conference committee of Members of the House and Senate Committees of jurisdiction would meet to resolve the differences between the two versions. 20 The agreed-upon bill would then go back to the House and Senate for votes on final passage. The Administration may present formal or informal views to the conference committee to try to influence the final version. 8.7. Enrolled bill Once a bill has passed the House and Senate in identical form, it is called an enrolled bill. The enrolled bill is required by law to be printed on parchment or other suitable quality paper. 21 It is signed by the Speaker of the House and by either the vice president, as President of the Senate, or by the President Pro Tempore of the Senate (the most senior Senator of the majority party), and delivered to the White House. When this formal document is received at the White House, the 10-day clock starts to run for the president to decide whether to approve or veto the bill. Every day is counted, except Sunday. This 10-day period is carefully monitored by OMB and the White House staff (Executive Clerk s office) to be sure that the president acts on each bill within the 10-day period. Occasionally, when a large number of enrolled bills are pending, the White House staff may try to work with the leadership of the House and Senate on the timing of delivery of bills to the White House, and, in rare instances, on the order in which bills are delivered. For every enrolled bill, from the naming of a post office to a complex authorisation or omnibus appropriations bill, staff of OMB prepare an enrolled bill memo for the president, which is signed by the OMB Director. The memo describes the contents of the bill and includes the recommendations (whether to sign or veto) and comments of all of the Departments that have a stake in it. 9. Enrolled bill memo Each enrolled bill memo for an authorisation bill is assigned to an OMB analyst who is responsible for preparing the memo. Typically the same analyst has been tracking the bill throughout the legislative process and is

406 J. A. WEINBERG familiar with its contents and any issues, and knows which Departments are interested in the bill. After carefully reading the enrolled bill, the analyst circulates it electronically to all of the interested Departments with a request for their recommendations for action by the president, as well as any comments on the bill. A response is typically due within two days of receipt of the enrolled bill at the White House. A lead Department is designated by OMB, based on the content of the bill. That Department is required to provide a letter 22, signed by a policy official, with its recommendation whether the president should approve or veto the bill. All other recommendations are usually provided informally by email. A standard response is no objection or no comment. A Department might recommend that the president issue a signing statement to call attention to the legislation as an achievement for the Administration or to acknowledge the roles in enactment of interest groups and Members. If a Department recommends that a signing statement should be issued by the president, it is required to provide a draft of the statement to OMB. If a veto is recommended, a draft veto message is required. The Departments recommendations are listed on the first page of the memo, (with OMB and the lead Department listed first and second, respectively) and their substantive comments are briefly summarised in the conclusion section of the memo. The Justice Department reviews every enrolled bill for legality and advises whether its provisions raise any constitutional concerns. The constitutional review is performed by Justice s Office of Legal Counsel. If Justice believes that any provision raises a constitutional concern, it will supply language for a signing statement explaining the concern and how the provision will be interpreted by the Administration to address the constitutional concern. Justice s concern and proposed language for a signing statement are reviewed by the Offices of OMB s General Counsel and the White House Counsel, and a determination is made whether or not to issue a signing statement. 23 Signing statements are not legally binding, but they are taken as instructions for executing the law by the Departments. President George W. Bush was criticised by the American Bar Association, Members of Congress, and others for the number of signing statements that he issued raising constitutional concerns with 1,000 or more provisions 24 in enrolled bills. To partially address the criticism, instead of issuing signing statements, some of the concerns were expressed by statements from the White House press office, which were not official signing statements. During the Obama Administration, in reaction to the Bush controversy, the policy was to limit the issuance of signing statements raising constitutional concerns. On 9 March 2009, two days before issuing his first signing statement, President Obama signed a Memorandum for the Heads of Executive Departments and agencies stating the principles that he would follow. It

THE JOURNAL OF LEGISLATIVE STUDIES 407 said in part that I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. The unwritten rule is that the enrolled bill memo can be as long as necessary to ensure that the president and White House staff have a description of the major provisions of the bill that, if signed, will become law. 25 Also, the enrolled bill memo may be used as part of the material for a decision whether to veto the bill. The enrolled bill memo is substantive and does not discuss the politics associated with the bill. Administrations have had different procedures for using enrolled bill memos. The Staff Secretary may circulate the memo to offices in the White House (e.g. WHLA, White House Counsel, Domestic Policy Council, National Security Council). Those offices rely on the enrolled bill memo for an accurate description of the bill. They might add a cover memo for the president conveying their recommendations, as well as political intelligence. Often at the end of a Congress (the end of the second year), there is a crunch of enrolled bills, because Congress often passes dozens of bills in just a few weeks right before it adjourns. There may be more than 100 bills awaiting action by the president, so enrolled bill memos have to be prepared by OMB staff under tight deadlines. The White House staff may review the list of pending enrolled bills and decide when a signing statement should be issued. Also, the list of bills may be reviewed to determine if any bills might be recommended for a signing ceremony. At a signing ceremony, a bill would be signed by the president surrounded by Members of the House and Senate who were instrumental in its enactment. The president usually signs the bill using multiple pens and then hands them out to the Members. 26 These are considered to be trophies by Members, and they are often framed with a copy of the first and last pages of the bill and displayed in the Member s office. An exception to this practice was George W. Bush, who signed bills with one pen that was sent to the National Archives. I understand (from a former student who worked in WHLA for President Bush) that his rationale was two-fold he was impatient; and he thought that using multiple pens and distributing them was demeaning to the presidency. On occasion, President Trump has used one pen and given it to a participant in the ceremony. 10. Regulations Regulations are issued by Departments to implement the laws passed by Congress. They have the force and effect of law. Congress usually intentionally lets the executive branch work out the details for implementing the laws for numerous reasons, including the expertise of civil servants; the need for regular updating; and because trying to agree on the details in legislation would make passage more difficult.

408 J. A. WEINBERG The process of issuing regulations is governed by the Administrative Procedure Act, which requires that the public be given an opportunity to comment on proposed regulations, except in emergencies. The comments must be considered by the Department before the regulations are finalised. Executive Order (EO) 12866 (issued on 30 September 1993) sets out the process for the review of a significant regulatory action of the executive branch, but independent regulatory agencies are not covered. 27 The review process is administered by OMB s Office of Information and Regulatory Affairs. The review is designed to ensure that significant regulations are consistent with the policies of the President; to coordinate them among interested Departments; and to consider the costs imposed by the regulations, as well as their benefits. The emphasis under President Trump has been on eliminating regulations instead of issuing new ones. One of President Trump s first Executive Orders, EO 13771 (issued on 30 January 2017), Reducing Regulation and Controlling Regulatory Costs, set the policy. 11. Executive action A set of tools of a president related to legislation are referred to as executive action. They are: Executive Orders (EOs) 28, National Security Presidential Memoranda (NSPMs), and signing statements. EOs are binding on the executive branch as soon as they are signed by the president, but they are not directly binding on the public or on independent regulatory agencies. They are required, by law, to be made public as soon as they are signed by being published in the Federal Register, which is the daily official publication of Government information. EOs can be revised or rescinded by any succeeding President simply by signing an EO. 29 EOs must be consistent with the law, and they may be challenged in Federal courts. Historically, the courts have been deferential to presidents when reviewing EOs. A process for reviewing and clearing EOs is governed by Executive Order 11030 (issued on 19 June 1961). In brief, the process provides for proposed Executive Orders to be reviewed first by OMB and then by the Justice Department. OMB s General Counsel s Office runs a review process similar to legislative coordination and clearance to ensure that proposed EOs are reviewed by all of the affected Departments. The Justice Department reviews proposed EOs for their constitutionality and legality. Historically, the vast majority of EOs are administrative and are not controversial. However, sometimes a president may use an EO to address a major issue, perhaps because he is frustrated by a lack of action by Congress on a legislative proposal. An example was President Obama s Executive Order 13658 (issued on 12 February 2014), which increased the minimum wage

THE JOURNAL OF LEGISLATIVE STUDIES 409 for Federal contractors and subcontractors. This EO was an exception. It had wide ranging influence on the private sector, because so many businesses have Federal contracts. Also, it influenced other companies, as well as States and localities to increase the minimum wage. A tool that is related to an EO is an NSPM, but some of these are classified and not made public. For example, NSPMs for troop deployments or instructions on U.S. positions in international negotiations would be classified. A president issuing a signing statement instructing the executive branch how to implement certain provisions of an enrolled bill is yet another form of executive action. For example, as noted above, if a provision has been identified as raising constitutional concerns, a signing statement might advise the executive branch how to implement the provision in a constitutional manner. 12. Bully pulpit Finally, all modern presidents have tried to persuade the public and the Congress by communicating directly with them. Presidents use their bully pulpit (the term was coined by Theodore Roosevelt) to reach the public and the Congress. There have been three significant developments related to the bully pulpit over the course of the modern presidency: FDR s use of the radio; JFK s use of television; and Trump s use of Twitter. 13. Conclusion Each modern president has used the tools in his legislative tool box to try to enhance his effectiveness with the Congress. While the Congress-centric legislative process is well known, the process from the standpoint of the president has not been widely described or understood. This guide is intended to assist both the public in the U.S. and the U.K., and practitioners, who are involved in the legislative process, to better understand the tools available to a president as part of the legislative presidency. Notes 1. If Congress has adjourned, a president may pocket veto a bill, because he is not able to return it to Congress. 2. The Trump Administration has used the President s advisors instead of the President s senior advisors, which was the formulation used by contemporary presidents. 3. For the rest of this guide, the term Department(s) is used to refer to a Cabinet Department(s), as well as to an agency or agencies that are part of the executive branch. An example of such an agency is the Small Business Administration. The guide does not discuss the Cabinet, because recent presidents generally have not used it as an effective legislative tool.

410 J. A. WEINBERG 4. President Bush also did not transmit a bill for his proposal to reform Social Security in 2005. At the time, the Republican Chairman of the House Ways and Means Committee said that the president should transmit a bill, but the Republican Chairman of the Senate Finance Committee advised against sending a bill. 5. President Obama did transmit a bill for Financial Regulatory Reform, in part, because otherwise the Administration did not think that the Congress would tackle the subject. 6. During the Administration of George W. Bush, the Republican Speaker, Dennis Hastert, said that if the president had issued a veto threat on a bill that he did not think that it should be considered on the House floor. 7. When Lyndon Johnson was elected as Kennedy s vice president, he, the master of enhancing his power, asked President Kennedy for office space in the West Wing next to the Oval Office. Instead, Kennedy, who didn t want Johnson so close, gave him office space in the Executive Office Building, located next to the White House. 8. Vice President Cheney was given office space on the House side of the Capitol, by the Republican majority, at the beginning of the Bush administration to facilitate his spending time on the House side. However, after the Democrats regained the majority in the House, Cheney s House office was taken away. 9. For example, in 2011, when President Obama was not able to reach an agreement with the Republican Congressional leaders to increase the debt ceiling, and the U.S. credit rating was downgraded, it was Vice President Biden, a veteran of 36 years in the Senate, who was able to quickly reach a deal with Republican Senate Majority Leader Mitch McConnell. 10. Nick Calio served as the Director of WHLA for both Presidents Bush. Under George W. Bush, Calio was selected early and was involved in the selection of the Assistant Secretaries for Legislative Affairs throughout the Departments. This enhanced his influence. 11. Initially WHLA in the Trump Administration was a smaller staff than for recent presidents, and it did not adopt the organisational model of the two previous Administrations. During the summer of 2018, the size of the staff increased and that model was basically adopted. 12. LRD is led by a division chief and three branch chiefs, with 13 analysts and four support staff, who are all career civil servants. LRD has three branches: HEVS (Health, Education, Veterans, Services) ESGG (Economics, Science, General Government), and RDI (Resources, Defense, International). Each branch covers multiple Departments. Each analyst has a portfolio of Departments. For example, my portfolio covers the Commerce Department, except for international trade; the National Aeronautics and Space Administration; the National Science Foundation; the Office of Science and Technology Policy; and the National Space Council. The LRD analyst works closely with the programme examiners in OMB s Resource Management Offices, as well as other OMB divisions. Typically, these examiners are the programme experts, while the LRD staff are generalists. 13. There is an exception, in law, for Members of the Joint Chiefs of Staff who are able to give their views to the Congress without prior clearance, after first informing the Secretary of Defense. That explains why on some controversial issues the Secretary and one or more of the Chiefs publicly testify with different positions.

THE JOURNAL OF LEGISLATIVE STUDIES 411 14. Independent regulatory agencies are established by law and led by members who serve for specified terms. Unlike policy officials in the Departments, the members of the independent regulatory agencies do not serve at the pleasure of the president. They can only be removed for cause, which is extremely rare. A president can only replace a member of an independent regulatory agency when his or her term expires; he or she decides to resign; or he or she dies while in office. 15. The witness and Department decide if anyone else should accompany the witness to the hearing to help to answer questions. In my opinion, a large entourage sends the wrong message. Instead, going alone and saying, if necessary, I don t know, but I will supply the answer in writing, is usually preferable. 16. For example, President Obama was most effective legislatively during his first two years in office when he had a majority of Democrats in both the House and Senate. His effectiveness declined after the Republicans gained a House majority in the 2010 elections, and it declined further after the 2014 elections when the Senate also flipped to a Republican majority. 17. The first 10 bill numbers in the House and Senate are reserved for the majority party and the second 10 bill numbers are reserved for the minority party. 18. The Parliamentarians of the House and Senate decide questions of jurisdiction on behalf of the Speaker and the Presiding Officer, respectively. 19. Before a bill is called up for passage by unanimous consent (uc) it has usually been hotlined. The Majority Leader asks the cloakroom staff to alert each Senator soffice of the intent to pass a bill by uc to give each Senator the opportunity to object. If objection is raised by a single Senator, the bill is not considered by uc. 20. Alternatively, the House and Senate might pass the bill with amendments back and forth until the same text is passed by both Houses. 21. This requirement is waived by the Congress when expedited action by the president is needed. 22. The letter from the lead Department and any letters from other Departments commenting on the enrolled bill are forwarded as attachments to the enrolled bill memo. 23. During the Reagan Administration, an agreement was reached with West Publishing Co. to include signing statements as part of the official legislative history of a law. The goal was to have Federal judges consider the Administration s views when the constitutionality of a provision was challenged. 24. Estimates vary from 1,000 to 1,400 provisions. 25. Historically, the unwritten rule has been that decision memos for the president should not exceed two pages. This rule was relaxed during the Obama presidency. 26. The record for using the most pens to sign a bill into law is held by President Johnson, who used and distributed more than 70 pens when he signed the Civil Rights Act of 1964. 27. Significant regulatory action is defined in Executive Order 12866. It includes any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $100 million or more or have a material adverse impact on the economy; or (2) raise novel legal or policy issues arising out of legal mandates, the president s priorities, or the principles set forth in the EO; as well as other criteria. 28. Sometimes instead of issuing an EO, a president will issue a Memorandum to the Heads of Executive Departments and agencies (See page 12).

412 J. A. WEINBERG 29. The issuing president can also revise or rescind one of his own EOs with a subsequent EO, but that is rare, except for extending deadlines in EOs. Acknowledgements The author thanks Paul Baker, Alan Greenblatt, Michael Koempel, Bruce Mehlman, Edward Page, Andrew Rudalevige, and Matthew Vaeth for their insightful comments which have improved this guide. Disclosure statement No potential conflict of interest was reported by the author. Disclaimer The views expressed in this guide are solely those of the author. They do not represent the views of the Office of Management and Budget or the Trump Administration (or any of the eight other Administrations served by the author). Notes on contributor Jeffrey A. Weinberg is a legislative attorney at the U.S. Office of Management and Budget (OMB). He began his career at OMB as a summer intern under President Nixon and full-time as a legislative attorney during the week in August, 1974 when President Ford succeeded President Nixon. In January 2017, he began serving his ninth president, President Trump. In 1995, he was honoured with OMB s highest award, the Distinguished Service Award, For outstanding contributions over six Presidential Administrations in managing the legislative clearance process on behalf of the OMB Director and the President. He has served on assignments to the White House s National Economic Council, the Federal Reserve Board, the Federal Communications Commission, and the Office of the U.S. Trade Representative. He has taught graduate courses on the presidency at four universities in Washington, DC. He currently teaches Federal executives about the legislative presidency for Georgetown University s Government Affairs Institute and the Graduate School USA. He is an adjunct professor at the Washington Campus. He has lectured extensively on the presidency at universities throughout the United Kingdom, including during his tenure as a Fulbright Distinguished Scholar, based at the University of London, during 2008.