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Policy Solution

Executive Actions to Restore Integrity and Accountability in Government

Summary: The next president doesn’t have to wait for Congress to prevent abuse of executive power. Here are 22 things the president can do to restore the integrity of government and strengthen our democracy.

Foreword

Amer­ican demo­cracy urgently needs renewal. In coming years, one of the great issues facing the coun­try will be the pres­id­ency itself.

A half century ago, in the wake of Water­gate and Viet­nam, laws and rules aimed to check the “Imper­ial Pres­id­ency.” Over the decades those limits eroded and then were finally cast off. The past three years have seen a refusal to honor over­sight and a politi­ciz­a­tion of the exec­ut­ive branch. The pres­id­ent insists the Consti­tu­tion gives him “the right to do whatever I want.” The abuse of power in Lafay­ette Park this summer was just the most visible, and most viol­ent, example of shattered norms.

In this time of reck­on­ing, a great task must be to reset the system of checks and balances and once again restore the pres­id­ency to its right­ful place.

This volume includes the first set of recom­mend­a­tions for exec­ut­ive actions from the Bren­nan Center for Justice at NYU School of Law. These focus on enhan­cing ethics, trans­par­ency, and account­ab­il­ity; curb­ing polit­ical influ­ence in law enforce­ment; enhan­cing the role of expert­ise and science through­out govern­ment; empower­ing congres­sional over­sight; and prevent­ing improper uses of emer­gency powers.

Congress must do its part to play its consti­tu­tional role. Courts, too, must step up.

But the pres­id­ent can lead, display­ing what Alex­an­der Hamilton called “energy in the exec­ut­ive,” this time not to grossly expand pres­id­en­tial power, but to restore the office to its right­ful role.

We the people have a duty as well: to insist that our lead­ers commit to the Consti­tu­tion and make renewal of our demo­cracy not just one issue among many, but a cent­ral task for our nation.

Michael Wald­man
Pres­id­ent 
Bren­nan Center for Justice
Octo­ber 2020
 

Intro­duc­tion

Our demo­cracy is at a crit­ical junc­ture.

The Covid-19 pandemic has urgently under­scored the need for a federal govern­ment that can focus on the public interest, is staffed by qual­i­fied profes­sion­als, and values expert­ise. Anything less will cost lives and put the nation’s recov­ery at risk. foot­note1_p0rn44u 1 Instead, the Trump admin­is­tra­tion initially down­played the crisis, then aimed to address it by side­lin­ing scientific experts, favor­ing polit­ical allies, and placing polit­ics ahead of Amer­ic­ans’ health. This deeply flawed response is one reason why the U.S. currently has more Covid-19 cases than any other coun­try on earth. See “44 Times Trump Down­played the Coronavirus,” Wash­ing­ton Post, May 6, 2020, https://www.wash­ing­ton­post.com/video/polit­ics/34-times-trump-down­played-the-coronavirus/2020/03/05/790f5afb-4dda-48bf-abe1-b7d152d5138c_video.html; James Hohmann, “The Daily 202: Ousted Vaccine Expert, Alleging Retali­ation, Is Not the First Scient­ist Side­lined in Trump Era,” Wash­ing­ton Post, Apr. 23, 2020, https://www.wash­ing­ton­post.com/news/power­post/paloma/daily-202/2020/04/23/daily-202-ousted-vaccine-expert-alleging-retali­ation-is-not-the-first-scient­ist-side­lined-in-trump-era/5ea11b­f588e0­fa34528d7574; Jonathan Allen, Phil McCaus­land, and Cyrus Farivar, “Behind Closed Doors, Trump’s Coronavirus Task Force Boosts Industry and Sows Confu­sion,” NBC News, Apr. 11, 2020, https://www.nbcnews.com/polit­ics/white-house/trump-s-coronavirus-task-force-amassed-power-it-boos­ted-industry-n1180786; and Isaac Stan­ley-Becker, Toluse Olorun­nipa, and Seung Min Kim, “Trump Foments Resist­ance to Demo­cratic-Imposed Shut­downs, but Some Repub­lican Governors Are Also Wary of Moving Too Fast,” Wash­ing­ton Post, Apr. 17, 2020, https://www.wash­ing­ton­post.com/polit­ics/trump-foments-resist­ance-to-demo­cratic-imposed-shut­downs-but-some-repub­lican-governors-are-also-wary-of-moving-too-fast/2020/04/17/5595e5fa-80c2–11ea-9040–68981f488eed_story.html?itid=ap_tolu­seolorun­nipa.

Even before the pandemic hit, the guard­rails that for much of our history ensured an honest, effect­ive federal govern­ment had been gravely weakened. There is no ques­tion that the norms and prac­tices ensur­ing ethical governance and the rule of law have degraded substan­tially. Federal offi­cials have increas­ingly abused their power by using law enforce­ment for polit­ical purposes, lever­aging their posi­tions for finan­cial gain, under­min­ing the role of object­ive science and research in poli­cy­mak­ing, and appoint­ing unqual­i­fied candid­ates to key govern­ment posts. Mean­while, wide­spread voter suppres­sion, foreign inter­fer­ence, the explo­sion of money in polit­ics, and the weak­en­ing of Congress’s role as a check on the exec­ut­ive branch have under­mined many Amer­ic­ans’ faith in our elec­tions and polit­ical system — even before the pandemic posed new voting chal­lenges. foot­note2_32x9xp7 2 Accord­ing to a 2019 poll, less than 30 percent of Amer­ic­ans today said they could trust govern­ment in Wash­ing­ton to do what is right “just about always or most of the time.” “Public Trust in Govern­ment: 1958–2019,” Pew Research Center, Apr. 11, 2019, https://www.people-press.org/2019/04/11/public-trust-in-govern­ment-1958–2019.

A bipar­tisan task force of former senior govern­ment offi­cials convened by the Bren­nan Center for Justice has proposed a compre­hens­ive legis­lat­ive agenda to restore the checks that previ­ously constrained exec­ut­ive action and preven­ted abuses of exec­ut­ive power. Even more signi­fic­ant, as their first order of busi­ness after retak­ing the House of Repres­ent­at­ives on a strong reform plat­form, congres­sional Demo­crats last year intro­duced and passed a land­mark pair of bills to fix our demo­cracy and give every Amer­ican a voice: H.R. 1, the For the People Act, and H.R. 4, the Voting Rights Advance­ment Act.

While legis­la­tion is undoubtedly needed, the next pres­id­ent does­n’t have to wait for Capitol Hill to begin fixing the system. This report proposes 22 exec­ut­ive actions — exec­ut­ive orders, memor­anda, and other direct­ives foot­note3_9r8sy6g 3 Unlike memor­anda and direct­ives, exec­ut­ive orders are required to be published in the Code of Federal Regu­la­tions. For a discus­sion of differ­ent types of exec­ut­ive actions, see Vivian S. Chu and Todd Garvey, “Exec­ut­ive Orders: Issu­ance, Modi­fic­a­tion, and Revoc­a­tion,” CRS Report No. RS20846 (Wash­ing­ton, DC: Congres­sional Research Service, 2014), https://fas.org/sgp/crs/misc/RS20846.pdf; Randolph D. Moss, Acting Assist­ant Attor­ney General, “Legal Effect­ive­ness of a Pres­id­en­tial Direct­ive, as Compared to an Exec­ut­ive Order” (offi­cial memor­andum, Wash­ing­ton, DC: Depart­ment of Justice, Jan. 29, 2000), https://fas.org/irp/offdocs/predir­ect­ive.html; and “Exec­ut­ive Order, Proclam­a­tion, or Exec­ut­ive Memor­andum?” Library of Congress, accessed May 14, 2020, https://guides.loc.gov/exec­ut­ive-orders/order-proclam­a­tion-memor­andum. — that would restore the integ­rity of govern­ment and strengthen our demo­cracy. All are squarely within the pres­id­ent’s author­ity.

To rebuild the guard­rails that prevent the abuse of exec­ut­ive power, the pres­id­ent should issue orders and direct­ives focus­ing on five areas: prevent­ing improper polit­ical inter­fer­ence in law enforce­ment, strength­en­ing ethics and conflict-of-interest rules, support­ing the integ­rity of science and research in poli­cy­mak­ing, promot­ing the appoint­ment of qual­i­fied exec­ut­ive branch offi­cials, and respect­ing Congress’s role as a coequal branch of govern­ment. In each of these areas, Demo­cratic and Repub­lican admin­is­tra­tions alike have recog­nized constraints, but as recent abuses show, the unwrit­ten norms of conduct that previ­ously ensured integ­rity in govern­ment can too easily be cast aside. Formal writ­ten rules are needed.

And to make our elec­tions fairer, the pres­id­ent should issue orders and direct­ives focus­ing on three addi­tional areas: shor­ing up campaign finance enforce­ment and other safe­guards, bolster­ing elec­tion secur­ity, and expand­ing access to the voter rolls.

Together, the actions detailed in this report would signal a clear break from the abuses of the recent past and would be a signi­fic­ant step toward restor­ing faith in Amer­ican demo­cracy. By high­light­ing the urgency of these issues, they could also help weaken the grid­lock that so often plagues Congress.

There is plenty of preced­ent for exec­ut­ive actions of this sort. foot­note4_rtygqn7 4 Michael Wald­man and Inimai Chet­tiar, eds., 15 Exec­ut­ive Actions, Bren­nan Center for Justice, 2014, 12, https://www.bren­nan­cen­ter.org/sites/default/files/2019–08/Report_15_Exec­ut­ive_Actions.pdf. Many of these actions track the approach taken in legis­la­tion intro­duced in Congress in recent years or in the legis­lat­ive recom­mend­a­tions of the Bren­nan Center’s bipar­tisan task force.

The pandemic will even­tu­ally be over­come, but these real­it­ies will remain: All Amer­ic­ans, regard­less of polit­ical orient­a­tion, want govern­ment offi­cials to put the public interest ahead of their own polit­ical or personal gain. And all Amer­ic­ans want their voices and their votes to count. The next pres­id­ent has the power to move swiftly toward those goals.

End Notes