I was reading an article yesterday that said the White House staff had to pack up their things and get out by 9pm Friday night. It got me to think, once the president signs off on anything that doesn’t require congress (pardons, for example), what process actually makes that document active?
To explain what I mean, I’ll give an example from where I work. I draw up some new widget, then my boss signs it off but that doesn’t actually make anything happen. I have to create a new entry for the widget in the database, send the CAD file to the print room clerk and give the signed off drawing to the administrator. The administrator confirms the signatures and flips a couple flags in the database then gives the paper copy to the print room clerk. The print room clerk archives the electronic file and the paper copy, then flips another flag in the database making the widget an active part. The departments affected are notified by a database activity report run each morning (namely purchasing) and they will take the appropriate action (purchase it against a sales/eng order). These steps are dictated by a document named in our company’s procedural document. If any steps are missed, the widget never exists (and people get fired for being idiots :)).
Once the president signs an order, what are the next steps that have to be taken, and who performs those steps?
The final step is publication of the act in the Federal Register.
… unless it’s a classified (secret) document.
Well, here’s how it works for me at the FCC:
- Someone recommends to the Commissioners (or the Commissioners order someone to investigate) an item that ends up as an order.
- The Commissioners publicly sign off on the order.
- The order gets published in the Federal Register up to 45 days after the order.
- The order almost always includes language as to when everything must be in compliance or when it goes into effect - i.e. 60 days after publication, 90 days, whatever.
- There is usually some kind of financial incentive to comply, such as preventing payments from some fund, or penalties for non-compliance. That gets everyone jumping to follow the order on time.
- The order gives specifics as to what needs to be done that can’t be said in a 30-second sound bite.
- In many cases, after publication, the public is allowed to comment on the order, or even ask to be waived from the requirements, so they don’t have to comply on the date of requirement.
- Very rarely is it that an order requires compliance immediately, or no penalty for non-compliance.
This seems like the place to bring up Marbury v. Madison. On the last day of his term John Adams made a number of court appointments (to guarantee, I suppose, that there would be a strong Federalist hand on the tiller, when the Democratic-Republican Jefferson took over). He signed the appointments, but it was up to Secretary of State to deliver them. The outgoing Secretary didn’t or couldn’t and it was left up to Jefferson’s Secretary, Madison. Madison refused and one of the appointees, Marbury, sued asking that a writ of mandamus be issued, which would have obligated Madison (under the pain of contempt of court) to deliver the appointments. Well, the court decided that the act of Congress authorizing such writs was unconstitutional, since it violated separation of powers. With this judgment, the court slightly weakened the powers of the judiciary but arrogated to itself the right, not given explicitly in the Constitution, to declare laws unconstitutional.
There had been a lot of discussion of whether the court had this power. Some thought that that was the purpose of the presidential veto, although that seems implausible. But it is surely arguable that it was implicit in the supremacy clause that says (this is from memory) that “This constitution and laws and treaties passed pursuant thereto are the supreme law of the land.” [Italics added] Dick Cheney notwithstanding who thought that treaties were pious hopes.