The Law: Presidential Memoranda and Executive Orders: Of Patchwork Quilts, Trump Cards, and Shell Games



    1. Gund Professor of Liberal Arts in the Department of Political Science at the University of Vermont. He is the author of the forthcoming By Order of the President, as well as Public Law and Public Administration, Battles on the Bench, and numerous other books and articles on public administration, policy, and law.
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When President Clinton took office, he moved rapidly on a batch of controversial policy initiatives using executive orders and also presidential memoranda, a device known and understood by few and virtually ignored in the literature. This article explores the use of presidential memoranda and executive orders as policy tools, focusing on the case of the Clinton administration environmental justice initiative. While the ends may be laudable, the means can be problematic. The analysis concludes that presidential memoranda are devices that have come to be increasingly important, but they can present significant political and legal problems, particularly if they confuse legal authority for presidential action and appear to hide the true nature and purpose of administration policy, in which memoranda are used in place of executive orders or even more exotic techniques are used to craft policy that is in truth in the nature of an executive order.