Executive Order 13166

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I didn't intend an orgy of posts on English First, but one of the commenters on my previous post followed the link I gave to the English First site and in their issues section came upon H.R. 768, a bill "To provide that Executive Order 13166 shall have no force or effect, and to prohibit the use of funds for certain purposes", sponsored by no less than 55 Congresscritters. According to English First, "E.O. 13166 created an unlimited entitlement to services provided in a language other than English from all recipients of federal funds." This is simply not true.

You can read the Executive Order yourself here, and read an overview by the Department of Justice, an FAQ, and various other information, here. It is actually pretty dull other than the fact that it was signed aboard Air Force One. The gist of it is that "we" (as personified by Bill Clinton) are serious about ensuring that people who are entitled to US government services are not denied access due to limited proficiency in English. To this end, it requires reviews of programs according to certain standards. As to whether it creates "an unlimited entitlement", the definitive answer is contained in the last paragraph:

This order is intended only to improve the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers or employees, or any person.

Is that clear enough for you? It means "NO".


  1. Aaron Davies said,

    August 6, 2008 @ 10:14 am

    That's legal boilerplate that shows up in almost all executive orders. Whether or not it creates something that a court would recognize as an "entitlement", if that term even has any legal meaning, it clearly obliges federal agencies to undertake work that they may not have previously been required to perform.

  2. Jon Weinberg said,

    August 6, 2008 @ 12:15 pm

    Yes, AD, the term *does* have legal meaning (I've been preparing the syllabus for my Administrative Law class this fall, so I feel confident in saying that). What the language means in this context is this: The order directs federal agencies to do certain things. An agency may do a good or a bad job complying with those requirements. But there is no mechanism by which a private person can enforce the order. A private person can't go to court seeking a judicial ruling that an agency isn't complying.

    If an executive agency simply ignores the order, and the President doesn't mind, there will be no consequences. If an executive agency simply ignores the order, and the President feels strongly about the importance of providing services to those with limited English proficiency, then the President has the power to fire the agency head — but that power doesn't flow from the order. The President *always* has the power to fire the heads of executive agencies, for any reason.

    All this means that there's plainly no "entitlement" here in the legal sense; whether the meaning of "entitlement" in the common-language sense is different is something I'll leave to others.

  3. Bill Poser said,

    August 6, 2008 @ 5:21 pm

    As Jon Weinberg said. This contrasts with legislation such as the Voting Rights Act, which actually did create new entitlements in the legal sense. It not only obligated governments to undertake actions that they had not previously undertaken, such as providing information and assistance in languages other than English, but it created a private cause of action, allowing affected individuals to go to court to enforce the provisions of the Act.

  4. Robert Dougan said,

    August 14, 2008 @ 9:18 am

    I have a friend who is an ENT doc who just finished paying an interpretor $65 to translate Swahili to collect a $12 Medicaid office payment in compliance with this "Executive Order." If he hadn't, I'm sure there would have been a Clinton-esque / ACLU group all over him with the threat of a private suite at Gitmo and at the minimum fines, penalties, censure before the State Board, etc.
    I'm no attorney (I still have a soul), but can tell you that in the real world, this doesn't work, especially with Medicaid reimbursing at18% of "usual and customary" charges. Keep talking the double talk; if you can't dazzle 'em with your brilliance, baffle 'em with your bullshit.

  5. Jerry Caplin said,

    November 18, 2008 @ 3:45 pm

    Boll Poser's narrow legalistic reading of the Executive Order 13166 last paragraph's boilerplate overlooks the subsequent Department of Justice's enforcement guidlines for the Order. The overzealous overreaching of these guidelines has resulted in expenditures for compliance approaching $50 billion (yes, that's billion) a year. That's some price to pay if, as Poser claims, "It means "NO.""

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