Darina Shtrakman

Reversing Executive Action: A Case Study of Bush’s EO 13233

By: Darina Shtrakhman[*]

In his first months in office, President Donald Trump has used executive action in a multitude of policy areas. He instituted a ban on entry into the United States from seven Muslim-majority countries for ninety days, elevated his chief political strategist to the National Security Council, and fast-tracked the construction of the Keystone XL Pipeline.[2] Although President Trump’s pace of executive action may seem unprecedented, presidents have been taking executive action since the dawn of the republic. They implicitly derive this power from the Constitution’s Article II, Section 3, Clause 5, which requires that the president “take Care that the Laws be faithfully executed.”[3] The Office of the Federal Register, which numbers executive orders, confirms that President Franklin D. Roosevelt issued over 3,500 executive orders — by far the most of any president to date.[4] President Barack Obama issued 276 over his eight years in office, and President Trump has issued seventeen as of March 20, 2017.[5]

Nevertheless, critics both of President Trump and of sweeping executive action may be wondering how executive orders can be revised, rolled back, or undone entirely. One solution is for the Supreme Court to declare the executive action unconstitutional, as it did when President Harry Truman tried to nationalize the steel industry.[6] Another option is for Congress to pass legislation invalidating the executive order or to refuse to fund the executive action. However, the road to achieving these drastic measures is long and uncertain, and change may come instead in fits and spurts. President George W. Bush’s Executive Order 13233 provides an illuminating case study into an executive order’s contentious eight-year lifespan — in which the legislative and judicial options failed — and its ultimate repeal by another executive order.

Shortly after taking office in 2001, President Bush issued EO 13233, “Further Implementation of the Presidential Records Act.”[7] President Ronald Reagan’s presidential papers were due to be released later that year, but the Bush White House allowed the National Archivist to delay the release. President Bush then announced the EO, which gave former presidents and vice presidents much wider latitude in withholding documents and allowed a former president to “designate a representative . . . to act on his behalf” in the assertion of presidential privilege in the event of the former president’s disability or death.[8] If a former president designated a record as restricted, the National Archives could not permit access to it upon request “unless and until . . . the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.”[9] As one public policy scholar wrote in the Washington Post, the ethos of this executive order ran counter to that of the 1978 Presidential Records Act and represented “a wholesale change to the way the federal government preserves and promotes our national public memory.”[10] In addition to historians’ concerns, proponents of government transparency had reason to worry that this effectively gave presidents veto power over their own legacy.

Congress tried on numerous occasions to repeal EO 13233. Congressman Doug Ose and Senator Jeff Bingaman introduced bills to override the EO the year after it went into effect.[11] In 2007, H.R. 1255, which would have repealed EO 13233, passed the U.S. House of Representatives with an overwhelmingly bipartisan 333-93 vote.[12] Due to a hold Senator Jim Bunning reportedly placed on it, however, the bill stalled in the Senate and never became law.[13]

Several affected parties also pursued litigation, most notably in American Historical Association v. National Archives and Records Administration. The American Historical Association and other plaintiffs sued for access to thousands of Reagan documents. The plaintiffs sought declaratory relief establishing that the EO was unlawful under the Public Records Act because it allowed for documents to be withheld indefinitely, as well as under the Constitution because it allowed for designated third parties who had never served as president to invoke executive privilege.[14] They also sought injunctive relief “enjoining the implementation of the Bush Order and compelling the release of documents withheld by virtue of the Order’s provision.”[15] Judge Colleen Kollar-Kotelly of the District Court for the District of Columbia granted a partial motion to dismiss in favor of the government.[16] Based on constitutional and prudential requirements of standing and ripeness, the court held, “Plaintiffs’ past injury is simply not redressable by the relief they seek, and their only possible redressable injury is at this stage simply too hypothetical.”[17]

The plaintiffs amended their complaint, and litigation dragged on for three more years. In October 2007, Judge Kollar-Kotelly found that several of the plaintiffs’ challenges were again not ripe, but she did find that they had standing on one count against the National Archivist.[18]  In a partial victory for the plaintiffs, the court enjoined reliance on EO 13233 section 3(b), which told the Archivist to bar a requester’s access to records while they were being reviewed by a former president.[19] This section “effectively eliminate[d] the Archivist’s discretion to release a former president’s documents while such documents are pending a former president’s review, which can be extended — presumably indefinitely — upon the former president’s request.”[20]

Over seven years after President Bush announced EO 13233, President Obama revoked it on his first full day in office.[21] With EO 13489, President Obama primarily restored the law to the way it was before the Bush changes took effect. Only the incumbent president — not former presidents, their designees, or former vice presidents — could assert executive privilege to withhold information. In addition, the EO required review by the Attorney General and the White House Counsel before a sitting president could claim privilege over records.[22]

Ultimately, EO 13233 provides a lens into the slow, jagged route that an executive order may take on its way to repeal. Those hoping for swift, decisive reversals on President Trump’s travel ban or any other recent executive order are likely in for a long fight. Even bipartisan congressional support does not necessarily lead to change. Moreover, litigation can stall and can face justiciability issues even when the plaintiff’s argument feels compelling. This leaves a third option — public pressure through presidential elections. The trajectory of President Bush’s EO 13233 shows that the best guarantee of a change to an executive order is to change the person in the seat of power.


 

[*] J.D., University of California, Berkeley, School of Law, 2018; M.Phil, University of Cambridge, 2013; B.A., University of Pennsylvania, 2012.

[2] Gregory Korte, President Trump’s Executive Actions: The Complete List So Far, USA Today: On Pol. (Jan. 30, 2017, 10:26 PM), http://www.usatoday.com/story/news/politics/onpolitics/2017/01/30/president-trump-executive-actions-complete-list-so-far-orders/97229452  [https://perma.cc/UW8T-VFZN].

[3] U.S. Const. art. II, § 3, cl. 5.

[4] Executive Orders: Washington – Obama, Am. Presidency Project, http://www.presidency.ucsb.edu/data/orders.php (last visited Apr. 13, 2017) [https://perma.cc/78HK-Q9U6].

[5] Id.

[6] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), https://www.oyez.org/cases/1940-1955/343us579.

[7] Exec. Order No. 13,233, 3 C.F.R. § 13233 (Nov. 1, 2001), https://www.gpo.gov/fdsys/pkg/CFR-2002-title3-vol1/pdf/CFR-2002-title3-vol1-eo13233.pdf [https://perma.cc/BP3T-PYJT].

[8] Id. at 818.

[9] Id. at 817.

[10] John Wertman, Bush’s Obstruction of History, Wash. Post (Feb. 26, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022401805.html [https://perma.cc/53G8-9CT3].

[11] See H.R. 1493, 108th Cong. (2003); S. 1517, 108th Cong. (2003).

[12] Court Rules Delay in Release of Presidential Papers is Illegal, Nat’l Sec. Archive, http://nsarchive.gwu.edu/news/20071001/index.htm (last visited Apr. 7, 2017) [https://perma.cc/R47E-DJ6H].

[13] Id.

[14] Am. Historical Ass’n v. Nat’l Archives & Records Admin., 310 F. Supp. 2d 216, 224 n.5 (D.D.C. 2004), http://www.leagle.com/decision/2004526310FSupp2d216_1503/AMERICAN%20HISTORICAL%20ASS%27N%20v.%20NATIONAL%20ARCHIVES%20AND%20RECS.%20ADMIN.

[15] Id.

[16] Id. at 218.

[17] Id. at 230.

[18] Am. Historical Ass’n v. Nat’l Archives & Records Admin., 516 F. Supp. 2d 90, 105 (D.D.C. 2007), http://www.leagle.com/decision/2007606516FSupp2d90_1598/AMERICAN%20HISTORICAL%20v.%20NATIONAL%20ARCHIVES%20AND%20RECS..

[19] See id. at 112.

[20] Id. at 109.

[21] Exec. Order No. 13,489, 3 C.F.R. § 13489 (Jan. 21, 2009), https://www.gpo.gov/fdsys/pkg/CFR-2010-title3-vol1/pdf/CFR-2010-title3-vol1-eo13489.pdf [https://perma.cc/EX75-EJEG].

[22] Id. at 192.

 

Recommended citation: Darina Shtrakhman, Reversing Executive Action: A Case Study of Bush’s EO 13233, Calif. L. Rev. Online Blog (Apr. 17, 2017), http://www.californialawreview.org/reversing-executive-action-a-case-study-of-bushs-eo-13233.