Executive Order 13814: Additional Emergency Powers

What the Executive Order Says

Executive Order (EO) 13814 is entitled "Amending Executive Order 13223".  It was published on October 20th, 2017 and has 2 sections.

Preamble

This EO has a somewhat lengthy and also notable preamble which provides rationale for delegation of Presidential Authority because of the ongoing immediate threat of attacks on the United States.

Section 1

This section amends Section of EO 13223, which is entitled "Ordering the Ready Reserve of the Armed Forces To Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation".  EO 13223 was issued on September 14th, 2001, that is, 3 days after the terrorist attacks in New York, Pennsylvania and Washington DC.  This adds that in addition to what has been previously delegated, sections 688 and 690 of title 10 of the United States Code.

Section 2

This section includes the necessary legal fine print to ensure the constitutionality of the EO.

My Commentary

So what is going on here is that 688 and 690 USC 10 have provisions that limit the number of retirees that can be called back to active duty unless there is a national emergency.  Essentially, this EO links the 9/11 terrorist attacks as the justification (a declared "national emergency") to be able to pull back retirees to active service.  What this seems to be indicative of is that there is an insufficient number of people who are in the armed forces and that the armed forces are preparing measures to ensure that they can obtain a suitable number of personnel in case of something going wrong in any of the flash points currently in the world such as North Korea, Iraq or Iran.
This does not appear to be good news.

Executive Order 13777: Enforcing the Regulatory Agenda

What the Executive Order Says

Executive Order (EO) 13777 is entitled "Enforcing the Regulatory Agenda".  It was published on February 24th, 2017 and it has 6 section

Section 1

This section states the policy succinctly regarding unnecessary regulatory burdens.

Section 2

In Subsection (a), each agency will name a Regulatory Reform Officer (RRO) who is charged with implementing this EO as well as EO's 13771, 12866 and 13563.  Subsection (b) states the RRO reports to the agency head.

Section 3

This section creates Regulatory Reform Task Forces which are unless designated otherwise, are headed by the RRO.  The Task Force attempts to identify regulations that can be eliminated.  Further, the Task Force shall report within 90 days on the progress towards the stated goals of reducing regulation.

Section 4

This section states that the goals in 3(g) are to be tracked and that these goals are to be included in performance indicators and where possible performance reviews.

Section 5

This section allows for agencies to be granted a waiver from the requirements of this EO based on the fact that they do not issue many regulations.

Section 6

This section includes the necessary legal fine print to ensure the constitutionality of the EO.

My Commentary

So, fundamentally, the question at hand is what is the reason why we have rules?  The argument goes like this: Enforced rules provide for known behavior.  Known behavior provides for certainty.  Certainty provides for planning.  Planning allows for achievement of goals that take a lot of people or a lot of time.  Being able to achieve goals that are bigger than one person allows complex societies to exist since it is impossible for one person to build an electric grid, a road network, a sewage treatment plant or a food distribution system.
Let's ignore for the moment questions around rule breakers.  Creating a rule is done with an intended consequence in mind.  Good faith disagreement with a rule can come in two flavors.  First, there is disagreement with the intended consequence.  In this case, it is a policy debate often motivated by personal or organization goals which may or may not benefit society as a whole or beliefs which may or may not be scientifically provable.  Second, there is agreement with the intended consequence, but disagreement that the rule is the best rule to achieve the intended goal.  For example when someone argues that the rule also had bad unintended consequences.
There can also be bad faith disagreement with the rule.  This can happen when a rule is proposed to close a loophole and those who have taken advantage of it lobby to stop passage of the rule.  Of course the previous statement is fraught with opinion and prejudice.
Complexity adds opportunity for gaming the system.  So from a sense that, if done correctly, regulatory reform (and here, I interpret reform to mean deletion of a bunch of old rules) can be a good thing since it should eliminate ways to game the system.  However, there is an expectation that this EO and the regulatory reform it is promoting is disguising a project to remove rules that prevent corporations and wealthy individuals from doing things that result in a private benefit and simultaneously a public cost.  The classic example is dumping waste into a river rather than paying for proper disposal.
In the recent news have been stories of large swaths of rules in the Department of Education being revoked.  These rules deal with the requirements for handling disabled students and also regarding how to deal with accusations of sexual discrimination and harassment.

Executive Order 13778: Waters of the US Rule

What the Executive Order Says

Executive Order (EO) 13778 is entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule."  It was published on February 28th, 2017 and it has 4 sections

Section 1

This section makes a statement about policy.  It is trying to state that there needs to be a balance between protecting the environment while at the same time relaxing the rules so as not to stifle economic activity.

Section 2

This section directs that the Administrator of the Environmental Protection Agency needs to review the rule previously published in 2015 regarding the definition of "Waters of the United States".  Similarly, if other Executive Branch agencies have made rules in line with this, these need to be reviewed and then modified to ensure that they do not stifle economic activity.  Finally, since there is on-going litigation around this rule, if the rules are changed, the Attorney General is to be notified so that the Department of Justice can take a revised legal position in cases in which they are involved.

Section 3

This section directs the EPA to use a definition of "Navigable Waters" that was defined in a written opinion of Supreme Court Justice Scalia.  If memory serves, this was a minority opinion, but in line ideologically with Republican policies.

Section 4

This section includes the legal fine print necessary to ensure the constitutionality of the EO.

My Commentary

This was one of the landmark Executive Orders aimed at reversing Obama's signature policies and fulfilling a campaign promise.  The details are subtle and at the time this was issued, many media outlets had to put together explainers on why it mattered.  Fundamentally, it will have an effect to lessen the protections against pollution and exploitation of waterways in the United States.  Typically, it will be larger corporations that would be able to take advantage of the revision of the rules that will be the implementation of this EO.  However, as always, there is a process and it will take time before the effects will be seen.

Executive Order 13813: Healthcare

What the Executive Order Says

Executive Order (EO) 13813 is entitled "Promoting Healthcare Choice and Competition Across the United States".  It was issued on October 12, 2017 and has 7 sections.  This intends to implement some amount of roll-back on the ACA healthcare legislation.

Section 1

This section outlines some problems with the individual health care market as it currently stands and uses this as justification to direct agencies to address through regulation 3 specific strategies to make the insurance market better for consumers: Association Health Plans (AHP's), Short-term, limited-duration insurance (STLDI) and heath reimbursement arrangements (HRA's).

Section 2

This section directs the Secretary of Labor to propose regulations to allow more employers to form AHP's.

Section 3

This section directs the Secretaries of Labor, Treasury and Health and Human Services to propose regulations to expand STLDI.

Section 4

This section directs the Secretaries of Labor, Treasury and Health and Human Services to propose regulation that would permit greater use of HRA's.

Section 5

This section affirms that the public will have an opportunity to provide public comment on any regulations that are going to be proposed as a result of this EO.

Section 6

This section calls for a report in 180 days and then every 2 years thereafter to advise what actions can be taken by government to further the policy aims described in section 1.

Section 7

This section includes the legal fine print to assure that it is constitutional.

My commentary

In reality, I don't think the President needed to issue an Executive Order to have the mentioned Secretaries propose regulations and revise guidance.  He could have just sent them an email.  And this policy direction could have been launched on January 21st, 2017 if the transition team had really been prepared in any way.  So overall this EO was issued just for the ratings.  Ultimately, the details of the new regulations and guidance will matter.  Critics were quick to jump up and propose scenarios that will likely make the situation worse for many people, especially those that can least afford to buy insurance.
It is often debated on whether health care is a right.  But I am coming to the conclusion that framing the question in this way is causing the question to be converted into something that goes along the lines of "how much of my money should be spent on people who can't afford to pay for services that  are necessary to keep them alive?"  Taxes are collected so that "public" money can be spent on public goods.  Public goods are things that to a lesser or greater degree benefit everyone.  Infrastructure, law enforcement, fire protection services, national parks are all examples of public goods that most people generally agree are reasonable things to collect taxes to create.  Maintaining the health of the population is a public good.  The argument for government involvement, whether it is a single payer system or some other form of participation, should focus on the public good that it will provide which can be shown from countless CDC studies.  And don't get me started on the false binary choices in which many debates on healthcare get framed.

Executive Order 13779: Historically Black Colleges and Universities

What the Executive Order Says

Executive Order (EO) 13779 is entitled "White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities" and was issued on February 28th, 2017.  It has 5 sections.

Section 1

This section outlines the rationale why this EO was written.

Section 2

This section establishes a White House Initiative on Historically Black Colleges and Universities (HBCU's).  This initiative will be led by the Department of Education.  This initiative's goals are to strengthen the HBCU's and also ensure that they are fully able to take advantage of all of the Federal government's support to educational institutions.  Those agencies that regularly interact with HBCU's will need to provide a plan on how their customer service can be improved.  Further there is an interagency working group that is established to coordinate the work.

Section 3

This section establishes a Board of Advisors and defines the mission and functions of that board.  It directs the Department of Education to provide the necessary funding to the board and mandates that the board reports annually to the President.

Section 4

This section revokes EO 13532 which was the Obama era EO that had established a similar advisory committee.

Section 5

This section includes a definition for "historically black colleges and universities".  Subsection (b) directs chosen departments to provide "timely" reports on the work they have done to support the advisory committee.  Finally, it includes the usual legal fine print necessary to assure the constitutionality of the EO.

My Commentary

For the perspective of the time that has passed, this EO was clearly lip service.  The EO moved the structure around somewhat as opposed to doing anything new.  It seems like it had been done simply for a photo op.  Even at the time, there were many that expressed cynicism.

Executive Order 13812: Labor-management forums

What the Executive Order Says

Executive Order (EO) 13812 is entitled "Revocation of Executive Order Creating Labor-Management Forums" and was published September 29th, 2017.  It has 3 sections.

Section 1

In this section, the justification that these Labor-Management forums have not been effective is provided for revoking the EO that established them.

Section 2

This section revokes EO 13522 and also directs the Director of the Office of Personnel Management to rescind any orders, rules, regulations, etc. that were implemented for compliance to the original EO.

Section 3

This section includes the necessary legal fine print to assure the constitutionality of this EO.

My Commentary

This was interesting in my review of the EO 13811 which was a continuation of the committees which were previously addressed in EO 13708.  I did not catch that there were advisory committees that did not get renewed.  In review of EO 13522, it does create large structures to be able to sit down and discuss issues.  While I can see how these forums do not fit with the general principles of the Republican party, I believe there is a grain of salt in the justification given.  I am certain that there are some people who care about this, but few of those will be outside Washington, DC.

Executive Order 13811: Advisory committees

What the Executive Order Says

Executive Order (EO) 13811 is entitled "Continuance of Certain Federal Advisory Committees" and was published on September 29th, 2017.  It has 3 sections and while it is very much administrative, it provides an interesting list of advisory committees.

Section 1

This section lists all of the advisory committees that currently exist and extends them for 2 years.

(a) Committee for the Preservation of the White House; Executive Order 11145, as amended (Department of the Interior).  I tried to look this up and could not find that the committee had a web page or anything.  I am a bit surprised that the First Lady is made an honorary member in that it seems a bit sexist.

(b) President's Commission on White House Fellowships; Executive Order 11183, as amended (Office of Personnel Management).

(c) President's Committee on the National Medal of Science; Executive Order 11287, as amended (National Science Foundation).

(d) President's Export Council; Executive Order 12131, as amended (Department of Commerce).

(e) President's Committee on the International Labor Organization; Executive Order 12216, as amended (Department of Labor).  This committee has not met since 2010.  I don't really understand why someone didn't delete it off the list...

(f) President's National Security Telecommunications Advisory Committee; Executive Order 12382, as amended (Department of Homeland Security).

(g) National Industrial Security Program Policy Advisory Committee; Executive Order 12829, as amended (National Archives and Records Administration).  This committee apparently deals with classified information.

(h) Trade and Environment Policy Advisory Committee; Executive Order 12905 (Office of the United States Trade Representative).

(i) Governmental Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 (Environmental Protection Agency).

(j) National Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 (Environmental Protection Agency).  See (i) above.  This just seems weird that they created two committees.

(k) Good Neighbor Environmental Board; Executive Order 12916, as amended (Environmental Protection Agency).

(l) Presidential Advisory Council on HIV/AIDS; Executive Order 12963, as amended (Department of Health and Human Services).

(m) President's Committee for People with Intellectual Disabilities; Executive Order 12994, as amended (Department of Health and Human Services).

(n) Invasive Species Advisory Committee; Executive Order 13112, as amended (Department of the Interior).  I think that some good UFO jokes could be made about this committee.

(o) Marine Protected Areas Federal Advisory Committee; Executive Order 13158 (Department of Commerce).

(p) Advisory Board on Radiation and Worker Health; Executive Order 13179 (Department of Health and Human Services).

(q) National Infrastructure Advisory Council; Executive Order 13231, as amended (Department of Homeland Security).       

(r) President's Council on Fitness, Sports, and Nutrition; Executive Order 13265, as amended (Department of Health and Human Services).

(s) President's Advisory Commission on Asian Americans and Pacific Islanders; Executive Order 13515, as amended (Department of Education).

(t) President's Council of Advisors on Science and Technology; Executive Order 13539, as amended (Department of Energy).

(u) Interagency Task Force on Veterans Small Business Development; Executive Order 13540 (Small Business Administration).

(v) State, Local, Tribal, and Private Sector (SLTPS) Policy Advisory Committee; Executive Order 13549 (National Archives and Records Administration).

(w) President's Advisory Commission on Educational Excellence for Hispanics; Executive Order 13555 (Department of Education).

(x) President's Advisory Commission on Educational Excellence for African Americans; Executive Order 13621 (Department of Education).

(y) President's Advisory Council on Doing Business in Africa; Executive Order 13675, as amended (Department of Commerce).

(z) Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria; Executive Order 13676 (Department of Health and Human Services).

(aa) Commerce Spectrum Management Advisory Committee; initially established pursuant to Presidential Memorandum on Improving Spectrum Management for the 21st Century (November 30, 2004) (Department of Commerce).

(bb) National Space-Based Positioning, Navigation, and Timing Advisory Board; National Security Presidential Directive-39, “U.S. National Space-Based Position, Navigation, and Timing Policy” (December 8, 2004) (National Aeronautics and Space Administration).

(cc) San Juan Islands National Monument Advisory Committee; Proclamation 8947 of March 25, 2013 (Department of the Interior).

(dd) Bears Ears National Monument Advisory Committee; Proclamation 9558 of December 28, 2016 (Department of the Interior).

(ee) Gold Butte National Monument Advisory Committee; Proclamation 9559 of December 28, 2016 (Department of the Interior).

(ff) President's Board of Advisors on Historically Black Colleges and Universities; Executive Order 13779 (Department of Education).

Section 2

This section redelegates the duties of the President to the head of various agencies.

Section 3

This section does two things.  First it states that this EO takes the place of EO 13708 which is an administrative necessity.  The second is that it revokes EO 13805 which then effectively disbands the Presidential Advisory Council on Infrastructure.

Section 4

This section states that the EO is effective September 30th, 2017.

My commentary

Really? Wow.