The view from the Oval Office: understanding the legislative presidency

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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.

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.

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.

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's office 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).

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.