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During the 1992 campaign for the White House, Bill Clinton repeatedly made promises from the hustings that he would pursue a number of his administration's goals through the use of executive orders. What could be easier and more sensible in an era of alleged congressional intransigence than for an American president to create and implement national policies personally through this short-cut procedure? Invocation of the executive order as a policy panacea was good campaign rhetoric given the superficial knowledge of this presidential device, even among most political insiders.

Clinton's campaign references to executive orders as a sort of fast-track presidential solution to complex problems raises questions concerning this ambiguous presidential power.1 However, Clinton was following recent presidents in his desire to use executive orders to achieve a variety of policy ends.2 The executive order and related presidential directives have become useful tools for presidents seeking to shepherd legislation through Congress, establish policies with a minimum of congressional involvement, and to keep policy implementation more firmly under presidential direction.3
 

Executive Orders in the 1993 Budget Dispute

Clinton resorted to executive orders in the summer of 1993 in order to secure much-needed congressional support for his imperiled deficit reduction package. This use of executive orders by the president is an example of how modern presidents can use executive orders in their dealings with Congress. Executive orders are convenient devices for presidents because they are applicable to many areas of policy and are largely discretionary tools for the executive. Another important advantage of executive orders is that the administration can rapidly draft and tailor such orders to meet the exigencies of a given situation.

In the course of the 1993 summer budget struggle, Clinton issued two executive orders as part of his strategy. On August 4, he signed an order creating a deficit reduction trust fund.4 This fund was created to ensure that all new revenues raised under the tax package and all spending cuts therein would in fact be applied toward reduction of the federal deficit. Clinton issued it in order to secure the vote of Senator Dennis DeConcini who had called for such a fund earlier and who already faced a serious campaign challenge in his tax averse home state of Arizona.5 Some ridiculed this measure as purely symbolic and of little substance, but in the end it did secure DeConcini's support for the president's legislative package,6 and so was a good example of the expediency of an executive order under some circumstances. By the time the trust fund proposal was under serious consideration it was too late in the legislative process for such a measure to be put into the Senate bill. T! hus, Clinton's executive order indicated how he would handle these funds.

The other executive order which Clinton issued at this time established a new review process for entitlement spending.7 This order was also aimed at winning the support of wavering House Democrats who had initially favored deeper cuts in spending than the Clinton package contained.8 This group of legislators had been disappointed when their efforts to cap entitlements in the House version of the bill had been eliminated by the Senate. Here again, technical legislative rules were a roadblock to timely compromise. The Senate had been unable to consider the House's entitlement cap because the plan had not previously been reviewed by the Senate's Budget Committee. The Clinton administration again offered to solve the problem through issuance of an executive order to accomplish substantially the same end. Under this order, Clinton agreed to place controls on the annual spending for entitlement programs. The order also bound him to report annually to Congress if spending for fede! ral programs exceeded predictions, and to indicate what the White House planned to do about the spending overrun. Congress would then be free to adopt the president's recommendations, to fashion its own remedy, or to take no action at all. The real political importance of this measure was to force Congress to do something its supporters favored: Holding public votes on any new spending.
 

Executive Orders and Abortion Politics

Executive orders have been used by both Presidents Bush and Clinton as way of furthering their respective positions on the abortion issue. Ever since the Supreme Court made abortions legal in 1973,9 much of the political maneuvering over this divisive issue has centered around efforts by both sides to make small changes in the availability of abortions. While most of the policy making on this topic has taken place in the courts and state legislatures, recent presidents have made use of various presidential orders to increase their influence over the development of policies in this area. Since the Reagan years, presidential directives have been employed in several of the sub-issues within the abortion debate, including: The availability of abortions to U.S. servicewomen; the use of fetal tissue for medical research; the so-called "gag order" on physicians at federally funded clinics; the importation of the French abortion pill RU-486; and the ban on U.S. aid to international! organizations that promote abortions overseas. The efforts by successive presidents to influence these abortion policies demonstrate how useful executive orders can be to modern presidents seeking to achieve policy ends or to influence pending congressional action.

One of the fiercest abortion-related debates which involved executive orders in recent years was over the funding for medical research using fetal tissue. Abortion opponents had long believed that such a policy would lead to more abortions and the sale of fetal tissue."10 In the spring of 1988, the Reagan Department of Health and Human Services suspended further research involving fetal tissue pending a review of the ethical issues involved by a twenty-one-member advisory committee.11 This committee held hearings on the subject, but even as they met the White House was circulating the draft of an executive order that would continue the moratorium on the use of fetal tissue indefinitely.12 The Reagan administration positioned itself to preempt what it believed would be a report from the committee favoring wider use of fetal tissue. The issue remained unresolved by the time Reagan left office.

The Bush administration did not deal with the fetal tissue controversy until the fall of 1989. At that time the administration announced that the funding ban for fetal research would be continued indefinitely."13 The fetal tissue debate continued as part of the larger abortion controversy in Congress through the 1990-1991 congressional session. There were repeated efforts in Congress to overturn the executive-imposed ban on aid to fetal research."14

However, Bush consistently and successfully threatened to veto any legislation which would ease restrictions on abortions.15

Pressure to overturn the administration's moratorium on funding for fetal research renewed16 when in April 1992, the Senate passed a bill that included a provision lifting the ban on fetal research funding.17 In the face of growing congressional support for lifting the ban, Bush issued an executive order to divide his opponents. This order established "fetal tissue banks" to collect human tissues for medical research obtained from miscarriages and ectopic (tubal) pregnancies.18 Shrewdly using an executive order to forestall congressional action by dividing his opponents, Bush apparently realized that some supporters of the broader congressional legislation were interested mostly in seeing fetal tissue research continue, despite their reservations that the bill might foster more abortions. It appears that Bush calculated that issuance of this executive order permitting limited use of fetal tissue would forestall congressional action which would have permitted the medical use! of fetal tissue from all abortions. In June 1992, Congress passed the broader legislation which permitted use of fetal tissue from all abortions. Bush vetoed this broader legislation in June 1992. His veto was sustained by the House on June 23 by only fourteen votes, thus vindicating Bush's strategy of using an executive order to deplete support for the bill.19

When Clinton assumed the presidency he too wanted to make use of executive powers to advance his position on abortions.20 During the campaign he made promises that he would reverse a number of Bush administration policy positions, including that on the use of fetal tissue for medical treatment. On January 22, 1993, after only two days in office, Clinton sent several presidential memoranda to the Secretary of Health and Human Services which reversed the Reagan-Bush position on five topics relating to abortion, including the funding of fetal tissue research.21

Clinton's reversals of these Reagan-Bush abortion policy stances were achieved through presidential memoranda to the relevant cabinet secretaries. This route is often a more direct and less cumbersome method of achieving a policy goal than through issuance of a formal executive order.22 In addition, issuance of a policy by a cabinet secretary or other departmental official is much less visible than a White House proclamation. As such, these intramural presidential directives can serve as a kind of "back door" executive order for presidents.

The struggle over the medical use of fetal tissue, from Reagan's 1988 moratorium to Clinton's 1993 reversal, was fought using such presidential directives to cabinet members. A similar pattern can be seen in other parts of the abortion controversy. One such battle involved the so-called abortion "gag order" by which personnel at federally funded family planning clinics were barred from dispensing information concerning abortions. This policy can also be traced to a presidential directive issued by Ronald Reagan.23 In 1988, the Reagan Department of Health and Human Services was directed to issue an administrative rule which effectively "gagged" medical personnel at about 4,000 clinics in the United States. As with the fetal tissue dispute, congressional support grew in the early 1990s to overturn the administration's position on the gag order. In 1992, Bush vetoed a family planning bill because it would have lifted the counseling ban.24 When Clinton assumed office he lifted ! the Title X gag order on the same day he renewed federal funding for fetal tissue research.25 Similar duels using administrative regulations and presidential orders were witnessed in other parts of the abortion conflict.26

These episodes of abortion politics demonstrate that the executive order can be a potent tool in the hands of a skillful president. Bush was able to make a minor concession to pro-abortion forces in Congress through the creation of the fetal tissue banks. His executive order was instrumental in neutralizing some of the opposition to his abortion stance in Congress. While it is unclear how much the combined efforts of Reagan and Bush actually curbed the availability of abortions, their resort to executive orders was nonetheless significant as a presidential effort to make domestic policy by fiat.

Bush's successful tightening of federal policy on abortion via executive orders and regulations issued by executive branch subordinates was greatly enhanced when these unilateral executive powers were used in tandem with vetoes and veto threats.27 Under this scenario, a president is able to establish policies on his own and then defend them by forcing Congress to muster the two-thirds majority necessary to undo his regulations and executive orders.28

However, Clinton's quick reversal of the Reagan-Bush directives on abortion also demonstrates the evanescent nature of unilateral executive policy making. While Congress appears to have difficulty reversing policies made by executive directives, such is not the case for an incoming president with a different policy agenda.  This raises the question whether these policies are best made by executive command or whether it is better for them to be enacted into law after full debate in the legislative branch of government.
 

Executive Orders and Gays in the Military

Probably the best known of candidate Clinton's pledges to use executive orders to change a national policy was his promise to end discrimination against gays in the armed services.29 This episode also revealed the significant legal and political limitations on the usefulness of executive orders for policy making in controversial areas.

It appears that Clinton believed that once in office he could reverse the long-standing military policy on gay soldiers with the stroke of a pen.30 In fact, the president could have lifted the ban on his own authority as commander-in-chief.*  However, congressional opponents of the president would have tried to override such an order by legislation.31 The new president soon discovered that he had underestimated the opposition to his administration's position on this issue. From the beginning, Clinton was forced to negotiate with his military and congressional opponents on the propriety and specifics of an executive order lifting the ban on homosexuals in the military.32

An early sign of the president's retreat on this issue was his concession in January 1993, which allowed the existing military policy on homosexuals to stand for six months while the Pentagon conducted a study and drafted the executive order.33 This delay gave the president's opponents time to organize political support in both Congress and with the American public to prevent lifting the ban on gays in the military.

While the president awaited the Pentagon's report and draft executive order, his staunchest opponents in Congress were attempting to write the existing ban on gays, which had been a mere Defense Directive since 1982, into formal legislation.34 Enactment of the ban into law would have given it greater legal force, making it more difficult for gay rights supporters to successfully challenge the ban in the courts. Some members of Congress were also hoping to attach an anti-gay rider to the family and medical leave bill which the president was eager to have passed at that time.35 To avert this development Clinton agreed in January to allow most elements of the existing gay ban to remain in force during the six months that the Pentagon was reviewing the issue and drafting the executive order.36

While the Pentagon dragged its feet on drafting an executive order easing the gay ban,37 the president's adversaries in Congress were moving toward a "compromise position" on the dispute.38This compromise was the so-called "don't ask, don't tell, don't pursue" position which was very similar to the interim policy in place since Clinton and Georgia Senator Sam Nunn agreed on it in January. Clinton initially opposed this compromise, but was forced to consider it by late May because of mounting opposition to his position.39 Other Clinton opponents in Congress were renewing efforts to enact an absolute ban on military gays into law.40

As the July 15 deadline for the draft executive order approached, there was more last minute negotiating and moves by both sides. Secretary of Defense Aspin acted as broker among the White House, the Pentagon, and concerned members of Congress as the negotiations intensified.41 The Clinton administration steadily lost the battle on this policy fight and was hoping to save parts of the proposal, even if these were of only symbolic value.42 Shortly before the deadline, Secretary Aspin sided with some of the more conservative members of the military who were working on the draft order.43 As the "don't ask, don't tell, don't pursue" version of the policy gained momentum in Congress, the president reluctantly accepted it but admitted that this fell far short of his original campaign pledge.44 The final version of the order was issued as an executive order plus an appendix of guidelines for military leaders on how to implement the order, and was set to take effect on October 1, 1! 993.45 However, the battle over gays in the military did not end with the promulgation of this executive order. Within days Senator Nunn announced that he would introduce legislation which would write the new policy into law.46 By the end of 1993 most observers were of the opinion that Senator Nunn and the other opponents to homosexuals in the military had prevailed in this contentious policy dispute.47**
 

Executive Orders and Trade Policy

American presidents have long made use of unilateral executive devices to achieve their policy goals in international affairs.48 Perhaps nowhere has this been more true than in the conduct of U.S. foreign trade policy. Over the years, Congress has delegated broad authority to presidents to conduct the nation's trade policies, including the power to negotiate trade agreements, set import quotas, impose or waive tariffs, and institute trade embargoes.49 Executive orders in the realm of foreign trade policy have been numerous, comprising about one-fourth of the total number of executive orders promulgated by recent presidents.50

Executive orders implementing trade policy have a different history and character from those executive orders discussed above. While executive orders in most other areas of policy making are taken under fairly broad statutory and constitutional guidelines, those in the field of trade policy have been subject to increasingly restrictive congressional criteria, timetables, and procedures. Executive orders concerning foreign trade issues have come to be seen as vehicles for congressional influence over U.S. trade policy. The pedigree of Section 301, dubbed "Super 301," illustrates this well.

Section 301 was originally enacted as part of the 1974 Trade Act.51 This major piece of legislation contained a broad delegation of power to U.S. presidents to pursue trade policy through a variety of channels.52 However, even this initial piece of trade legislation imposed various limitations on presidential freedom to make U.S. trade policy. For instance, Congress gave the president statutory "negotiation guidelines53 which "directed" the president to seek revisions in the General Agreement on Tariffs and Trade,54 required him to take action if the U.S. balance of payments exceeded specified figures,55 and required that he consult with Congress.56 In its original form, the Act even contained a legislative veto over certain executive decisions.57

Nonetheless, Section 301 of the 1974 Act gave the president broad authority to retaliate against what he determined to be unjustifiable, unreasonable, or discriminatory burdens on American foreign trade.58 The provision grew out of early concerns that U.S. commercial interests were being bested by other nations' import and tariff restrictions on U.S. goods. At the time of its creation, Section 301 was regarded as a congressional effort to expand presidential power to retaliate.59

It was not until 1988 that Congress sought major changes in Section 301..60 By that time, many in Congress had become frustrated with mounting U.S. trade deficits. Some traced this problem to a lack of presidential aggressiveness in defending American commercial interests overseas. The 1988 omnibus trade bill was the culmination of three years of drafting and was intended to encourage presidents to pursue an activist foreign trade policy, including retaliatory measures under Section 301.61

A subtle but important change made to Section 301 in 1988 was the transfer of the responsibility for identifying and acting against protectionism abroad from the president to the U.S. Trade Representative (USTR).62 The change was apparently motivated in part by a congressional desire to exercise more control over trade policy. The USTR, like most executive branch officials, is more susceptible to congressional directives and oversight than the president himself. By shifting the onus for triggering Section 301 and related trade provisions to this office, Congress increased its own influence.63 The 1988 revisions thus made the USTR the key policy maker on trade issues, with power to determine what foreign practices were unfair, to decide upon a course of action, and to implement these retaliatory actions. Congress also took this opportunity to define in greater detail how the United States should retaliate.64

Although the 1988 revisions to the Trade Act created Super 301, there still remained the matter of getting presidents to invoke this formidable section against foreign nations.65 Since 1988, those in Congress who have supported such stronger retaliatory trade action have often found themselves facing presidents unwilling to promulgate the necessary executive orders. This inter-branch dispute over issuance of presidential directives implementing Section 301 have been sharpest between Republican presidents and congressional Democrats. However, the issue goes beyond simply partisan differences on trade. Presidents are naturally more concerned with the impact that trade decisions will have on related diplomatic and military policies of the administration.

The dispute over when and how to invoke Super 301 climaxed during the Bush administration as congressional supporters of the provision sought to force Bush to invoke the procedure against Japan and the European Community. In May 1989 the Bush administration named three countries (Japan, India, and Brazil) as targets under Super 301.66 However, the administration simultaneously announced its Structural Impediments Initiative (SII) talks with Japan on structural trade and commercial barriers. It soon became obvious that the SII negotiations were the administration's way of avoiding invocation of the stiffer penalties and timetables associated with Super 301.

As congressional pressure on Bush built in the spring of 1990 for stronger measures against Japan, the administration tried to forestall congressional moves by announcing progress in the SII talks. The 1988 version of Super 301 was set to expire in 1990, so the Bush administration was able to simply delay issuing Section 301 sanctions until the statute lapsed.67

Super 301 supporters in Congress tried in both 1990 and 1991 to obtain renewal of Super 301 and to strengthen it by further limiting presidential discretion in applying trade sanctions.68 In late 1991 a House committee approved a bill which would have renewed Super 301 and extended it through 1995.69 There were also efforts at this time to virtually eliminate presidential discretion in the implementation of Super 301 by making retaliation mandatory against nations with large trade surpluses with the United States.70 The Bush administration vigorously and successfully opposed these efforts to renew and strengthen Super 301.

Since Clinton's election, there has been greater agreement between Congress and the White House on the use of retaliatory measures to solve international trade disputes71 In March 1994, Clinton revived Super 301 through an executive order.72 By this order Clinton triggered the reporting provisions of the Trade Act which required the USTR to identify "priority countries" which he believed were engaging in protectionist practices.73 However, even the Clinton administration hedged on invoking Super 301. In October 1993, the administration first threatened Japan with trade sanctions, and later postponed action after some limited Japanese concessions.74
 

Conclusions

One of the great political advantages of executive orders for presidents has been their legal ambiguity. Although this presidential device has been in use since early in our history, its precise legal parameters still remain unclear.75 This ambiguity has created many opportunities for modern presidents to use executive orders for a variety of purposes. When used judiciously these presidential directives can be potent weapons of persuasion with the legislature. Clinton's experience with securing passage of the 1993 federal budget is one instance where executive orders were used as bargaining devices or as means to bypass congressional procedures and opponents. Bush's use of an executive order to outmaneuver his congressional adversaries on the issue of federal support for fetal tissue research was another instance of executive orders serving as tools for legislative strategy.

Although some executive orders appear to have served recent presidents well in their bargaining with Congress, the device appears less reliable as a vehicle for directly achieving policy goals. This has been particularly true when the policy concerned is one of high controversy and public visibility. The efforts of Bush and Reagan on the abortion issue and Clinton's experience with gays in the military reveal that executive orders cannot easily be used as substitutes for formal legislation on controversial public issues. Such attempts by recent presidents to employ the executive order route to attain a policy goal in a short-cut fashion have usually foundered on congressional politics. In such situations, the weaknesses of executive orders become manifest: They can be instantly overturned by an incoming president and can be repealed or overridden by congressional action. Recent presidents who have resorted to executive orders in these types of policy areas have often been f! rustrated in their drive to create policies by executive fiat.

However, executive orders are well suited for achieving policy goals in less visible issues.  A president can issue an executive order more quickly than Congress can enact legislation and he can tailor the order to fit a particular situation. If circumstances should change, then the original order can be easily amended by another order. Executive orders are thus particularly wellsuited for policy areas where there are complex or rapidly changing considerations that make daily congressional participation impractical.

The experience with trade retaliation via Super 301 also holds some lessons for future congressional attempts to regulate too closely the process of presidential directives. Clearly, Congress is well positioned to undo a single presidential directive, such as that on gays in the military. However, it cannot easily control an on-going executive process involving multiple directives and decisions such as trade relations with other nations. Nonetheless, Congress can be adept at using the executive order process for its own purposes.76 If the experience with Section 301 is typical, then it would appear that presidents will resist such congressional remote control over their discretion to utilize executive orders for their own policy goals. In the realm of trade relations, presidents clearly have considerable advantages over Congress including the complexity of most trade issues and its relationship to foreign affairs where presidents typically enjoy some residuum of deference. !

It seems clear from the four episodes described in this article that executive orders are a versatile tool for modern presidents. Whether used for policy making or in dealing with Congress, executive orders appear to have become an important component in presidentialcongressional relations.
 

* Editor's Note: This, indeed, was how President Harry Truman desegregated the armed forces with Executive Order 9981 in 1948. Truman also ran into opposition from some military commanders, especially General Douglas MacArthur, but his desegration order was effectively implemented on schedule on January 1, 1955.

** Editor's Note: Indeed, early estimates indicate that even without federal regulation, Clinton's Executive Order has resulted in expelling or refusing entry to more homosexuals into the armed services than originally anticipated.

Notes  1. For an overview of executive orders and the problems which they pose for separation of powers and excessive presidential power, see, Michael Nelson, ed., Congressional Quarterly Guide to the Presidency (Washington, D.C.: Congressional Quarterly, 1989), pp. 478-95; and Peter Shane, "Presidential Regulatory Oversight and the Separation of Powers: The Constitutionality of Executive Order No. 12291," Arizona Law Review 23 (Fall 1981): 1235-65. 2. Studies on the use of executive orders to achieve policy goals include: Ruth Morgan, The Presidency and Civil Rights Policy: Making Policy By Executive Order (New York: St. Martin's Press, 1970); V. Kerry Smith, Environmental Policy Under Reagan's Executive Order (Durham, NC: University of North Carolina Press, 1984); Note, "Executive Order 11246 and Reverse Discrimination Challenges: Presidential Authority to Regulate Affirmative Action," New York University Law

Review 54 (May 1979): 376-412; and, Robert Shanley, "Presidential Executive Orders and Environmental Policy," Presidential Studies Quarterly 13, no. 2 (Summer 1983). 3. Presidents have come to use a variety of labels for their official communications, including: "executive orders," "proclamations," and presidential "memoranda." The legal distinctions among them is still unclear. Unlike executive orders, presidential memoranda usually do not open with a recitation of the constitutional and statutory power sources on which the communication is based. Presidential directives in the form of secret National Security Directives (NSCs) have been the most controversial. Presidential proclamations are usually non-controversial and directed at some person or group outside the government. The Supreme Court has held that executive orders and proclamations are legally equivalent, Wolsey v. Chapman, 101 U.S. 755 (1879). It appears that some presidents prefer to label their communications! other than "executive orders" as a means of escaping some of the statutory reporting requirements on such orders. 4. Executive Order 12858, 58 Fed. Reg. 42185 (1993). 5. The New York Times, August 3, 1993, pp. Al, A14, "Clinton Seeks 1 'Yes' Vote from 6 Unhappy Democrats," p. A15; and Congressional Quarterly Weekly, August 7, 1993, pp. 2124-5. 6. The New York Times, August 5, 1993, pp. Al, A18. 7. Executive Order 12857 was also issued on August 4, 1993, 58 Fed. Reg. 42181 (1993). 8. The New York Times, August 4, 1993, pp. Al, A15, A16; and Congressional Quarterly Weekly, July 31, 1993, p. 2028. 9. Roe v. Wade, 410 U.S. 113 (1973). 10. For a summary of earlier battles over the funding of fetal tissue research, see: Congressional Quarterly Almanac, vol. XLVI (1990) pp. 600-1; and Barbara Craig and David M. O'Brien, Abortion and American Politics (Chatham, NJ: Chatham House, 1993). 11. The ban was enacted into law later in 1988 and codified as, Pub. L. 100-607, Title I, 156, 157! (b), 102 Stat. 3059 (1988). 12. The New York Times, Sept. 15, 1988, p. A31, Sept. 17, 1988, pp. Al, A10, and Oct. 22, 1988, p. A9.

13. Congressional Quarterly Almanac, Vol. XLV II (1992), pp. 393-6; The New York Times, Oct. 16, 1989, p. A19, and November 2, 1989, pp. Al, A23. 14. In 1991 the House attempted to overturn the administration's ban on funding in an omnibus reauthorization bill (H.R. 2507) for the National Institutes of Health. See, Congressional Quarterly Almanac, vol. XLVI (1990), p. 600; vol. XLVII (1991), pp. 339-48; and vol. XLVIII (1992) pp. 393-6. 15. See Bush's June 4, 1991, letter to congressional leaders, reprinted in Congressional Quarterly Almanac, vol. XLVII (1991), p. 344. 16. Congressional Quarterly Almanac, vol. XLVIII (1992) pp. 393-6. 17. S. 2507, 102nd Cong., 2nd Sess. (1992); Congressional Quarterly Almanac, vol. XLVIII (1992), p. 10-S 18. On may 19, 1992, Bush issued Executive Order 12806, 3 C.F.R. 302 (comp. 1992). See, Congressional Quarterly Almanac vol. XLVIII (1992), pp. 393-6; The New York Times, May 20, 1992, pp. Al, A16, June 23, 1992, p. A16, and June 25, 1992, ! "House Fails to Override a Veto on Fetal Research," p. A23. 19. The Senate passed the National Institutes of Health bill containing the broader fetal tissue provision on June 4, 1992, approving a conference report on H.R. 2507, which included some who hoped to eliminate the fetal tissue provision in a conference committee. Congressional Quarterly Almanac, vol. XLVIII (1992), p. 54-H. For text of Bush's veto message, see: Congressional Quarterly Almanac,

vol. XLVIII (1992), p. 395. The House or Representatives sustained his veto the next day, Congressional Quarterly Almanac" vol. XLVIII (1992), p. 54-H. 20. See, Congressional Quarterly Weekly, January 23, 1993, p. 182. 21. Clinton's memorandum restoring funding for fetal research is in the form of a directive to the Assistant Secretary for Health and Human Services, 58 Fed. Reg. 7457 (1993). Bush's Executive Order 12806 which established the fetal tissue banks was nullified by Congress in section 121(c) of Pub. L. 103-43, 107 Stat. 133 (1993).

22. The routing procedure for executive orders is specified by law and contained in, 44 U.S.C. 1505, and 1 C.F.R. 25-26 (1993 comp.), and implemented by Executive Order 11030, 3 C.F.R. 610 (1959-63 comp.), as amended by Executive Order 11354, 3 C.F.R. 652 (1966-70 comp.). 23. The gag order was contained in 42 C.F.R. 59.2, 59.8, 59.9, and 59.10 (1993), interpreting Title X of the Public Health Act of 1970, 42 U.S.C. 300 et seq. The announcement came in January with the regulations going into effect on March 3, 1988. See: The New York Times, January 30, 1988, p. Al. The gag order was later upheld by the Supreme Court in Rust v. Sullivan, 114 L.Ed.2d 233 (1991). See: Congressional Quarterly Almanac, vol. XLIV (1988), p. 324. 24. Bush vetoed the Family Planning bill (S.323) on September 25, 1992. Although this veto was overridden in the Senate, it was sustained by the House on September 30, 1992. The New York Times, October 2, 1992, p. A14. 25. 58 Fed. Reg. 7455 (1993). By this! memorandum Clinton formalized his understanding with the Secretary of Health and Human Services that the latter would suspend the gag rule. 26. Other abortion-related areas of dispute between administrations included Reagan's ban on abortions at U.S. military facilities overseas which was most recently imposed by Pub. L. 98-525, 1404, 98 Stat. 2618, in 1985, although similar bans exist as far back as 1978. The latest ban was lifted by Clinton's directive, 58 Fed. Reg. 6439 (1993). The Reagan administration's ban on foreign aid to international organizations which performed or promoted abortions ("Mexico City Policy") was announced by the Reagan administration in 1984 and lifted by Clinton in January 1993. This latter policy is described in: DKT Memorial Fund v. Agency for International Development, 887 F. 2d 275 (D.C.D.C., 1989); and Congressional Quarterly Almanac, vol. XLVII (1991), p. 345. The ban on the French abortion pill, RU-486, which was imposed by Reagan was lifted ! by Clinton in 1993, see: 58 Fed. Reg. 1459 (1993); and 19 U.S.C. 1395 (1994)

supp. ). 27. See, George C. Edwards, Presidential Influence in Congress (San Francisco, CA.: Freeman, 1980); Louis Fisher, Constitutional Conflicts Between Congress and the President (Princeton, NJ: Princeton University Press, 1985) ch. 5; and, Robert Sptizer, The President:al Veto: Touchstone of the American Presidency (Albany, NY: State University of New York Press, 1988). 28. See the related complaints of Representative Patricia Schroeder and Political Scientist Thomas Mann, quoted in Congressional Quarterly Almanac, vol. XLVII (1991), p. 339; also, William Neighbors, "Presidential Legislation By Executive Order," University of Colorado Law Review 37 (1964): 105-118; and, Joel Fleishman and Arthur Aufses, "Law and Orders: The Problems of Presidential Legislation," Law and Contemporary Problems 40 (Summer 1976): 1-45. 29. Clinton's promises on this topic are usually traced to a speech he delivered at Harvard University on October 1, 1991. See: Congressional Quarterly Week! ly, July 17, 1993, p. 1889; and The New York Times, August 20, 1992, pp. Al, A21. 30. The military's ban on homosexual servicemen goes back to the 1940s, and was set forth in 1982 as Defense Directive 1332.14 (1982). The ban was codified as 10 U.S.C. 654 (1994 supp.). See: Congressional Quarterly Weekly, January 23, 1993, p. 187. 31. This part of the controversy raises difficult questions as to the legal priority between executive orders and legislation. As it turned out, Congress did in fact later pass legislation modifying the

military's policy on gays. While the core of this dispute was over gays in the military, there were also some important separation of powers questions present. In the final legislation on the gay ban, discussed below, the Congress did insert "findings" reasserting its constitutional powers over the armed forces, under Article I, section 8.  32. The New York Times, January 13, 1993, pp. Al, A7; and January 21, 1993, pp. Al, A17. 33. The President was forced to delay issuing his executive order by Senator Nunn and his allies in Congress and the military. See, The New York Times, January 29, 1993, p. A12, and January 30, 1993, pp. Al, A8. Two groups were assigned to study the issue of gays in the military, one was composed of fifty military personnel, the other study was conducted by the Rand

Corporation. It is not unusual for the agency most directly affected to draft an executive order but this is usually limited to securing the agency's legal expertise on the order's language. It is somewhat unusual for the agency to hold hearings or to make major alterations in what the president has requested. Proposed executive orders drafted by agencies are then usually routed to the Director of the Office of Management and Budget, and from there to the Attorney General before being published in the Federal Register. See: Nelson, ed., Guide to the Presidency, p. 480. 34. See, Congressional Quarterly Weekly, January 23, 1993, p. 187; The New York Times, January 28, 1993, pp. Al, A17. 35. See, The New York Times, January 30, 1993, pp. Al, A8. Some members of Congress hoped to write a clear legislative intent into the congressional record to further strengthen the wording of any bill. Senator Nunn believed that this would greatly fortify and gay ban from judicial challenge, ! a tactic which he believed had helped defeat court challenges to the draft in 1981. Senator Nunn was apparently referring to Rostker v. Goldberg, 453 U.S. 57, 64 (1981). See:

Congressional Quarterly Weekly, November 20, 1993, p. 3211. 36. Clinton's willingness to compromise here appears to have temporarily weakened his opponents. See: The New York Times, January 31, 1993, p. A20. Clinton also, briefly, accepted the possibility of segregating gay soldiers as a means of further appeasing his opponents on this issue. See: The New York Times, March 24, 1993, pp. Al, All. 37. The New York Times, March 23, 1993, pp. Al, A18. 38. Ibid., May 12, 1993, pp. Al, A16. 39. Ibid., May 28, 1992, p. Al. 40. In late June, some members of the House Armed Services Committee attempted to put the ban into the Pentagon's budget authorization bill and thereby render the president's efforts null. See: The New York Times, June 23, 1993. 41. Ibid., July 2, 1993, pp. Al, A10. 42. Ibid., July 8, 1993, p. A16. 43. Ibid., July 14, 1993, pp. Al, A14. 44. Ibid., July 16, 1993, p. A10, July 17, 1993, pp. Al, A7, and July 20, 1993, pp. Al, A16. 45. The final version of the ban h! as been characterized as "don't ask, don't tell, don't pursue." The final version is set forth as Pub. L. 103-160, title V, 571, 107 Stat. 1547. 46. The New York Times, July 20, 1993, pp. Al, A16. 47. For example, The New York Times, September 19, 1993, p. D16, and September 20, 1993, p. A19. This battle has since moved into the federal courts: Walmer v. United States Department

of Defense, 835 F. Supp. 1307 (D.Kan. 1993); Pruitt v. Cheney, 943 F.2d 989 (9th Cir. 1991), cert. denied, 113 S.Ct. 655 (1992); Woodward v. U.S., 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); and BenShalom v. Marsh, 881 F.2d 454 (7th Cir. 1989). 48. Presidents have used both executive orders and executive agreements to implement U.S. foreign policy. The rise in presidential use of executive agreements is chronicled elsewhere and will not be discussed here. Lawrence Margolis, Executive Agreements and Presidential Power in Foreign Policy (New York: Praeger, 1986); and Robert Spitzer, President & Congress (New York: McGraw-Hill, 1993), ch. 6. 49. See, 19 U.S.C. ch. 12 (1994); and Congressional Quarterly Almanac, vol. XXXV (1979), p. 2939. 50. Between 1949 and 1984 there were 345 executive orders issued which dealt with "foreign trade, diplomacy" matters, representing 13.9 percent of the total number of orders from that period. However, the proportion! of executive orders devoted to trade issues has increased considerably in recent presidencies: Nixon 8.7 percent, Ford 17 percent, Carter 22.2 percent, and Reagan 31.2 percent. See: Gary King, and Lyn Ragsdale, The Elusive Presidency: Discovering Statistical Patterns in the Presidency (Washington, D.C.: Congressional Quarterly, 1988), pp. 167-74. 51. 88 Stat. 2041 (1975). 52. 19 U.S.C. 2111 (1994 supp.). 53. 19 U.S.C. 2113-2114 (1994 supp.).

54. 19 U.S.C. 2131 (1994 supp.). 55. 19 U.S.C. 2132 (1994 supp.). 56. 19 U.S.C. 2112 (1994 supp.). 57. The legislative veto was enacted as, 88 Stat. 2043, 302 (1975). The provision was deleted in the general statutory revision of the Act in 1979, 93 Stat. 295 (1979). 58. 88 Stat. 2041 (1975). 59. Congressional Quarterly Almanac, vol. XXX (1974), p. 557. 60. There were minor revisions to the Trade Act in 1984, 98 Stat. 3002-3003 (1984). These revisions added services and high technology products to the commercial interests covered by the Trade Act. See: 19 U.S.C. 2114a and 2114b (1994 supp.). 61. Pub. L. 100-418. Congressional Quarterly Almanac, vol. XLIV (1988), pp. 209-10. 62. 102 Stat. 1164 (1988). The USTR was called the Special Representative for Trade Negotiations until 1980. 63. The USTR was given responsibility for identifying unfair trade practices and formulating retaliatory responses thereto. However, his actions were still left "subject to the specific direction"! of the president.

64. See: 19 U.S.C. 2411 (a) (3) (1994 supp.). The USTR was made responsible for identifying unfair trade practices by foreign nations, identifying such countries ("priority nations"), and designing appropriate retaliatory measures for the U.S. government. 65. President Reagan was one of the first to invoke the new Super 301 procedure in July 1988. By presidential memorandum to the USTR he found certain Brazilian trade practices unfair and ordered that public hearing be held on the matter under the new section. 3 C.F.R. 638 (1988 comp.). 66. Congressional Quarterly Almanac, vol. XLV (1989), pp. 144-5. 67. Congressional Quarterly Almanac, vol. XLVI (1990), pp. 208-9. 68. Congressional Quarterly Almanac, vol. XLVII (1991), p. 131. 69. H.R. 787, 102nd Cong., 1st Sess. (1991). 70. There were efforts to insert this stiffer language in H.R. 787, and Majority Leader Gephardt also introduced separate legislation (H.R. 3702) to accomplish the same. These efforts failed in 1991. 71. D! espite the greater agreement on trade retaliation, some efforts continued in Congress to force the USTR to act. Rep. Robert Matsui (D-CA) introduced H. R. 1248 to encourage the USTR to retaliate against the Japanese semi-conductor industry. See: Congressional Quarterly Weekly, April 3, 1993, p. 826. 72. Executive Order 12901. 59 Fed. Ree. 10727 (1994): The Wall Street journal. March 4, 1994.

p. A3. 73. 19 U.S.C. 2241 (1994 supp.). 74. The New York Times, October 23, 1993, p. A45, and October 27, 1993, pp. Al, D2. 75. See: Morgan, Presidency and Civil Rights Policy, ch. 1; and, Note, "Executive Orders and the Development of Presidential Power," Villanova Law Review 17 (March 1972): 688-712. 76. The tug-of-war between the White House and Congress over trade policies was not unique. Bush's Executive Order 12807, 57 Fed. Reg. 12133 (1992), issued in May 1992 directing the return of Haitian boat refugees to Haiti provoked congressional criticism and moves to amend or reverse his executive order. See: Congressional Quarterly Almanac, vol. XLVIII (1992) pp. 5589. For background on this controversy, see: Justice Stevens' opinion in, Sale v. Haitian Centers Council, 125 L.Ed.2d 128, 137-41 (1993).

ROBERT C. WIGTON Associate Professor of Political Science Eckerd College

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