President Trump's Executive Order for Reorganizing the Executive Branch

On March 13, 2017, President Donald Trump issued Executive Order 13781, titled “Comprehensive Plan for Reorganizing the Executive Branch” [82 FR 13959]. Although this Executive Order does not deal with immigration policy specifically, its directives may affect executive branch agencies charged with administering the immigration laws. In this post, I will examine the Executive Order in brief and note how it may affect executive branch agencies involved in immigration policy and enforcement.

Examining the Executive Order

In section 1 of the Executive Order, President Trump directs the Director of the Office of Management and Budget (Director of OMB) to propose a plan to reorganize governmental functions and eliminate unnecessary agencies, components of agencies, and agency programs. “Agency” is defined in 5 U.S.C. 551(1) [PDF version]. The purpose of this directive is to “improve the efficiency, effectiveness, and accountability of the executive branch…”

In section 2(a) of the Executive Order, President Trump directs the head of each agency to submit to the Director of OMB a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of the agency. These reports must be submitted within 180 days of the effective date of the Executive Order.

Section 2(b) directs the Director of OMB to publish a notice in the Federal Register inviting suggestions from the public regarding the organization and functioning of the executive branch. In section 2(c), President Trump directs the Director of OBM to, within 180 days of the closing date for the submission of suggestions under section 2(b), submit to him a proposed plan to reorganize the executive branch in order to improve the efficiency, effectiveness, and accountability of agencies. Where appropriate, the plan shall include recommendations to eliminate unnecessary agencies, components of agencies, and agency programs, as well as recommendations to merge the functions of agencies. Finally, the proposed plan will include recommendations for legislation or administrative measures that may be necessary to achieve the proposed reorganization.

In section 2(d) of the Executive Order, the President directs the Director of OMB to consider the following, in addition to any other relevant factors, in making his proposal to reorganize the executive branch as required in section 2(c) (paraphrased):

(i) Whether some or all functions of an agency, a component, or program are appropriate for the Federal Government, or whether they would be better left to State or local governments or to the private sector.
(ii) Whether some or all functions of an agency, a component, or a program are redundant.
(iii) Whether certain administrative capabilities necessary for operating an agency, a component, or a program are redundant with those of another agency, component, or program.
(iv) Whether the costs of continuing to operate an agency, a component, or a program are justified by the public benefits provided by the agency, component, or program.
(v) The costs of shutting down or merging agencies, components, or programs. This includes the costs of addressing the equities of affected agency staff.

Finally, in section 2(e) of the Executive Order, President Trump directs the Director of OMB to meet with the head of each agency (and, consistent with applicable law, with persons outside the Federal Government with relevant expertise) in developing his proposed plan under section 2(c).

Section (3)(a) makes clear that the Executive Order does not impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof, or the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

Conclusion

This Executive Order reflects a desire of the Trump Administration to closely scrutinize the costs and functions of departments and agencies within the purview of the executive branch. Under the Executive Order, the Director of OMB, Mick Mulvaney, will examine agencies involved in the enforcement of the immigration laws along with all other executive branch agencies. Accordingly, Director Mulvaney's report issued under section 2(c) of the Executive Order will likely contain recommendations affecting agencies involved with the immigration laws. However, until we see the report, it is unclear what these proposed changes will be. In light of President Trump's January 25, 2017 Executive Orders on border security and interior enforcement, and the memoranda of Secretary of Homeland Security John Kelly on their implementation, it would seem unlikely that agencies relating to the processing of immigration cases and immigration enforcement will be adversely affected as a result of Director Mulvaney's recommendations [see article].

Director Mulvaney is known for being a small government conservative and a budget hawk, so it would not be at all surprising to see him issue a report calling for significant action within the confines of existing law. Broadly, I look forward to seeing the recommendations that he issues after conducting the thorough review of the executive branch called for in President Trump's welcome Executive Order.