President Donald Trump’s liberal use of executive orders that combine imperial theater with real-world White House clout are spurring mixed emotions among conservative scholars and veterans of past GOP administrations.
The half dozen or so formal executive orders Trump’s issued in his first week in the Oval Office surpass the total number that President Thomas Jefferson issued over eight years. Many more are on the way, some consequential, some symbolic and some that are sure to end up in court.
“Some of it is designed to show he’s moving on his agenda,” said Gary Schmitt, resident scholar at American Enterprise Institute, a conservative think tank. “Some of these are designed to signal changes.”
Trump’s executive orders through Friday have touched on the Affordable Care Act, border control, immigration enforcement and environmental reviews of infrastructure projects. Draft orders, of uncertain provenance, have been leaked on policies such as CIA interrogations. Trump is expected to issue additional orders soon, but whether the leaked documents reflect what will actually be signed is unclear.
“The imperial presidency is alive and well,” Saikrishna Prakash, a professor at the University of Virginia School of Law, said Friday at an American Enterprise Institute panel discussion, adding that Trump “is unlikely to adopt constrained views of his constitutional authority.”
Appearing at a fast-and-furious pace, it’s not clear how much vetting the orders receive before they’re blasted out. Trump’s 2,300-word border security and immigration enforcement order, for instance, was signed without an attorney general or his deputy in place and only five days after Homeland Security Secretary John F. Kelly was sworn in.
Trump has yet to name anyone to head the crucial Office of Legal Counsel, which advises the White House on executive orders. He lacks his own solicitor general, who will defend the orders against likely lawsuits.
Former President Barack Obama’s executive orders on immigration, gun control, transgender bathroom access and the minimum wage all faced legal challenges.
“There will certainly be litigation, where litigation is possible,” Todd Gaziano, executive director of the conservative Pacific Legal Foundation’s D.C. Center, said Friday. “The question is, will you win?”
In part, Trump has deployed executive orders to dramatize his differences with Obama. This is standard political theater, a way to showcase executive command while giving a symbolic shout-out to key constituencies or campaign pledges.
Obama’s first post-inauguration executive orders signed in January 2009, for instance, effectively challenged former President George W. Bush’s interrogation and Guantanamo Bay detention programs. By the end of his two terms, Obama had issued 276 executive orders.
Bush, elected with the broad support of fellow Christian conservatives, used his first several executive orders to underscore his support for faith-based programs. Bush issued 291 executive orders during his two terms, averaging 36 a year, according to a database compiled at the University of California, Santa Barbara.
Using executive orders, President Jimmy Carter initiated a program designed to end racial discrimination at colleges, President Ronald Reagan overturned price controls on domestic oil production, President George H.W. Bush stopped imports of some semi-automatic firearms and President Bill Clinton set aside large swaths of public land as national monuments.
“Every president in the last four decades has exceeded the unilateral executive authority of his predecessor,” Gaziano said. “That should be of concern to all.”
At the same time, Gaziano added it was “entirely appropriate” for Trump to use executive orders to reverse Obama’s policies.
President Obama used his pen and phone to exceed his powers, in our perspective. Everything Obama did by executive order, this president can undo.
House Speaker Paul Ryan, R-Wis.
John Yoo, who wrote the legal opinions during President George W. Bush’s term that supported an expansion of presidential power after the 2001 terrorist attacks, including harsh interrogation methods that some called torture, said Trump’s actions reminded him of Reagan, who issued several similar orders to freeze regulation and look into costs of government spending.
“It’s not unusual for presidents in the first week or two to start issuing executive orders,” Yoo said, adding that “a lot of these orders can’t move forward until Cabinet secretaries are confirmed.”
Executive orders are not the White House’s only dramatic prop. Trump has also issued a series of presidential memorandums.
A Trump memorandum on Monday, for instance, made a splash about the United States withdrawing from the proposed Trans-Pacific Partnership trade deal. While including potent phrases like “by the authority vested in me as president,” the memorandum essentially resembled a news release dramatizing the fulfillment of a Trump campaign promise.
Neither executive orders nor presidential memorandums are spelled out in the Constitution. They do, however, have the force of law if they are based on the president’s legally recognized authorities.
Schmitt said his concern was not that Trump was using them, but that the president was being vague in what he was doing.
“He ought to be clear about the legal basis,” Schmitt said. “It would be helpful if the new administration was much more clear on the legal basis they are acting on.”
Schmitt said there were three reasons Trump was not being clear: The White House is understaffed, it’s the president’s style and Trump has no real sense of constitutional issues.
“I don’t think this president is interested in legal questions,” Prakash said.
Still, Trump’s executive orders do enumerate specific laws upon which they are based, and Gaziano characterized the top two White House lawyers as “very able.”
Inevitably, lawmakers can view all of this president’s muscle-flexing through partisan filters.
Republican Sen. Charles Grassley of Iowa, for instance, denounced in 2014 “President Obama’s pattern of unconstitutional executive action,” especially in the area of immigration. On Wednesday, though, Grassley praised Trump’s two immigration-related executive orders as “an important step toward securing the border, restoring the rule of law and strengthening public safety.”
Last year, as well, House Republicans established the Task Force on Executive Overreach, though they insisted it wasn’t partisan.
“In recent decades . . . presidents of both parties have aggrandized their power and usurped Congress to legislate from the Oval Office,” Rep. Bob Goodlatte, the Virginia Republican who chairs the House Judiciary Committee, said at the time.
The task force authorization has since expired, according to the committee.