On October 14, President Obama signed Presidential Policy Directive 43 on the normalization of relations between the United States and Cuba.
Aside from the substance of the directive on the future of US-Cuba relations, PPD-43 has several incidental features of interest.
First, it is a public document.
“The policy directive was notable because it was public instead of classified,” the New York Times said in an October 15 story.
That’s not exactly wrong, but it misses the larger point that even unclassified presidential directives are often withheld from public release. The White House web site has sections devoted to executive orders and presidential memoranda, but not to presidential directives. (Some unclassified directives are linked from the presidential memoranda section, while others are not available on the White House site at all.)
Second, it is striking that near the end of his second term, President Obama has issued only 43 presidential directives. By comparison, President George W. Bush issued 66 National Security Presidential Directives and 25 Homeland Security Presidential Directives, President Clinton issued 75 Presidential Decision Directives and President Reagan issued 325 National Security Decision Directives.
What, if anything, these differences mean requires further investigation. They could reflect differences in governing style, in organization of the policymaking process, or in the use of directives as an instrument of executive authority.
It is possible that some presidentially-initiated actions are being directed and executed using means other than formal directives.
For example, on September 21, 2016 President Obama ordered agencies to take certain actions concerning Climate Change and National Security. But instead of being issued as a Presidential Policy Directive, his Climate Change guidance was framed as a Presidential Memorandum.
Why?
The answer is unclear. An administration official said that Presidential Memoranda “can be used to direct agencies on the manner in which they do something they are otherwise (by law, executive order or presidential directive) authorized to do.” So maybe — the official couldn’t say for certain — the Climate Change memorandum directed the manner of execution but did not authorize any new activity. Had it done so, that would presumably have required a presidential “directive.”
The release of Presidential Policy Directive 43, following the release of PPD 41 last July, also indicates that there must be a PPD 42, the contents of which are currently unknown.
And on October 13, President Obama issued Executive Order 13744 on Coordinating Efforts to Prepare the Nation for Space Weather Events. The Order refers to a previously unidentified Presidential Policy Directive 40 on National Continuity Policy that was signed on July 15, 2016. That directive has not been released.
The reference to PPD-40 was noted in “Obama expands his executive power beyond Earth” by Gregory Korte, USA Today, October 13.
The problem of secret law, which includes those presidential directives that define national policy and allocate government resources without public knowledge, was examined in a report entitled ”The New Era of Secret Law” by Elizabeth Goitein of the Brennan Center for Justice.
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