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The Executive Order on Travel: Case Study on the Concurrence Process

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By John Pearson
March 14, 2017

The Executive Order (EO) on travel restrictions, issued by the White House on January 27, 2017, immediately caused confusion at airports worldwide and a significant backlash. The order suspended travel for 90 days for most persons from seven designated countries, suspended refugee admissions for 120 days,  indefinitely banned Syrian refugees and made other immigration policy changes.  Initial court challenges to the EO were successful and implementation of the order was completely suspended pending a revised EO and possibly further court challenges. As of this writing (March 5, 2016), the White House had not issued a revised EO.

General Kelly, Secretary of the Department of Homeland Security, testified before Congress on February 7, 2017, that his thinking was to get the EO out quickly to minimize any time terrorists would have to take advantage of more relaxed standards. In retrospect, he states he should have delayed the EO “just a bit” to brief Members of Congress. See minute 36 of his testimony to Congress.

Kelly doesn’t suggest he or the White House should have obtained additional concurrences within the executive branch prior to release of the EO. He concedes they made three adjustments to the original order within the first two days. Also, the White House Counsel to the President issued guidance on February 1, 2017, that made clear the EO did not apply to “lawful permanent residents of the United States.” Many commentators have suggested the EO should have had more executive branch concurrences before being released.

I would submit that concurrences and delegations of authority are critical ongoing issues for all government organizations at all levels. Failure to consider all choicesviewpoints is a common criticism of government decisionmaking. On the other hand, slowness of decisionmaking is also a common criticism. For each decision, there is an optimal number of concurrences, from one signature to many, based on the value added by each concurrence. It’s hard to know what the optimal level is, but I believe decision makers do attempt to move in an optimal direction. From my observation, organizations are continually adjusting the concurrences for various decisions—sometimes adding more concurrences and sometimes subtracting concurrences—trying to achieve optimality.

Concurrence from the legal staff is critical if a decision is subject to court challenge as in this case. Dealing with the lawyers can be painful. Their advice is usually to be cautious. They want to frame the policy so it will not be challenged successfully in the courts. The program staff, on the other hand, may wish to “push the envelope” and see how far they can go.

Concurrence from relevant program experts is critical. In this case, major policy issues were apparently ignored in the initial EO. Why did the EO suspend travel from Iraq, an ally whom the U.S. is helping militarily? Why are workers and students who have been approved to be in the U.S. for years suddenly having their travel challenged? Why did 97 hi-tech companies feel it necessary to challenge the EO on the grounds it would inflict substantial harm on them?

Uber CEO Travis Kalanick was quoted as saying:

“The executive order is hurting many people in communities all across America… Families are being separated, people are stranded overseas and there’s a growing fear the U.S. is no longer a place that welcomes immigrants.”

The knowledge and ability of individual decision makers partly determines the level of concurrence needed. A well-informed decision maker may be able to make decisions without a huge about of consultation and concurrence. A poorly informed decision maker is well advised to seek out subordinate comments and concurrences. A decision maker isn’t necessarily the best judge of how many concurrences he or she should seek.

It is critical for decision makers to have the best judgment of their staff members or even other agencies, as appropriate. The concurrence process can bring painful differences of opinion to light. All parties need to be on their best behavior — stating their views honestly but avoiding personal attacks on people who disagree with them. If management suppresses dissent in the concurrence process to make the decision appear to have unanimous support, the resulting decision may not be optimal.

It may be unsettling for a decision maker to realize the facts surrounding a decision are uncertain and that the decision affects multiple conflicting values — but welcome to public administration! It’s better for decision makers to have a fuller understanding of the issues than to have a paper trail reflecting everyone agrees with the decision when that is not the case.

A document like the travel EO is really many separate decisions. Most of the paragraphs within this document are actually separate immigration policy decisions, each with its own factual and value issues.

Having a good concurrence process doesn’t guarantee satisfactory results. The individuals in the concurrence process simply may not understand all aspects of the problem or they may be overwhelmed with the number of decisions to make. Whatever decisions are chosen may cause a significant backlash from people who perceive they are harmed.

Administrators should look to optimize their concurrence process as best they can.

Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. His email is [email protected].

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