How much do executive orders cost? No one knows

Gregory Korte | USA TODAY

WASHINGTON — When President Obama issued an executive order granting civilian federal employees a 1% pay raise last December, the White House did not tell Congress how much those raises would cost.

Instead, White House Office of Management and Budget Director Shaun Donovan said in a report that the order "is not anticipated to increase discretionary obligations and outlays overall."

To Rep. Ander Crenshaw, R-Fla., that statement is "ludicrous."

As Congress and the White House battle over whether Obama has the executive authority to halt deportation, delay implementation of the Affordable Care Act or negotiate a nuclear deal with Iran, another skirmish has opened up over the question of how much Obama's executive orders cost.

The answer: No one knows.

Crenshaw, the chairman of a House appropriations subcommittee that controls the White House budget, is trying to fix that. He inserted a provision into the spending bill passed by Congress last year, requiring OMB to issue a statement on the budgetary impact of each executive order.

But 10 executive orders later, Congress has no more insight into their cost. OMB has declared six to have a "de minimus," or trivial, effect on costs or revenues, and four are expected to increase spending by an unknown amount.

For example, an executive order signed Thursday, requiring agencies to cut their greenhouse gas emissions by 40%, contains the same boilerplate language as the pay raise. "This executive order is not anticipated to increase discretionary obligations and outlays overall." But it also suggests long-term cost savings through decreased energy and water use.

OMB would not publicly discuss the process behind the budgetary impact statements. "The executive order budgetary impact statements issued by OMB comply with the requirements in the recent funding bill," said OMB spokeswoman Emily Cain.

Apparently that's not good enough for Crenshaw.

"There's no federal government agency that ought to be immune from having to explain the potential financial impact of an action they've taken or intend to take," Crenshaw said. "We deserve the specifics."

Specifics are hard to come by. Many executive orders have impacts across the federal government — requiring, for example, that federal contractors pay a minimum wage of $10.10 an hour. Those costs are built into the bids of federal contractors, but aren't broken out.

Still, it's clear that presidential directives influence how the executive branch spends money. A USA TODAY examination of budget justifications that agencies send to Congress finds at least hundreds of millions in costs to implement executive orders. For example:

• The Environmental Protection Agency mentions executive orders 110 times in its 2016 congressional budget request. Few of them have an exact price tag, and in many cases the executive order is just one of many factors driving up costs. But one line item was directly attributed to a 2013 executive order on chemical safety: a $27.8 million budget for state grants to prevent chemical spills.

• The State Department is asking Congress for $4.1 million to enhance the "insider threat monitoring" of its classified computer networks in response to a 2011 executive order on protecting classified information.

• In 2010, Obama signed an executive order creating the President's Council on Fitness, Sports and Nutrition. The council has a budget of nearly $1.2 million, which Obama has asked Congress to increase to $2.1 million.

• The Fish and Wildlife Service wants $4 million to hire 25 agents to crack down on poaching in response to a 2013 executive order on wildlife trafficking.

In all of those cases, the administration is asking Congress to codify the executive order by appropriating money to implement them. But Congress could do the opposite, blocking the executive order by refusing to appropriate money for it.

That's what the battle over Homeland Security funding was about. Republicans threatened to hold up funding for the department in an effort to block President Obama's executive actions on immigration.

The cost of those actions are also unclear — and the administration wouldn't have to report to Congress on their cost anyway. That's because they came through presidential memoranda and not executive orders. Memos have the same legal effect, but the Crenshaw provision applies only to executive orders.

"You have this distinction between an executive order and then an executive memorandum," Crenshaw said. "Whatever you call it, we think the administration ought to live up to the same spirit of the law that requires public information."

Ultimately, experts said, the effort to find out the budgetary impact of executive orders is doomed to fail because, by law, there technically isn't any. Congress sets the budget, and the president can't spend any money that Congress hasn't already authorized. So at best, the president can only move around resources within existing line-items approved by Congress.

"The short answer is the president can't use an executive order to affect overall spending levels," said Kenneth Mayer, a political science professor at the University of Wisconsin-Madison and author of With the Stroke of a Pen: Executive Orders and Presidential Power. "But there's always discretion for the president to administer the law and wind up spending some money."

So the 1% raise Obama enacted by executive order — under a law specifically allowing him to unilaterally grant raises in cases of "national emergency or serious economic conditions" — will come out of every agency's existing budget.

With federal civilian employee salaries totaling about $250 billion, that amounts to $2.5 billion across the government.

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