As he campaigned for the presidency, Donald Trump argued that Barack Obama’s frequent use of unilateral administrative tools made Obama a weak leader. “We have a president that can’t get anything done,” Trump told an interviewer in January 2016, “so he just keeps signing executive orders all over the place.”
That spring he added,
I want to not use too many executive orders, folks. … Obama, because he couldn’t get anybody to agree with him, he starts signing them like they’re butter. So I want to do away with executive orders for the most part.
Fast forward to a White House news release marking President Trump’s first 100 days in office. It claimed that Trump had “accomplished more in his first 100 days than any other President since Franklin Roosevelt.” The proof? He had signed more executive orders in that period than any of Roosevelt’s other successors.
And while Republicans fiercely criticized Obama for pledging to use his “pen and his phone” to get around legislative gridlock, this week — using his phone — Trump touted his pen. The president tweeted:
Since Congress can’t get its act together on HealthCare, I will be using the power of the pen to give great HealthCare to many people – FAST
— Donald J. Trump (@realDonaldTrump) October 10, 2017
Indeed, last week gave us many examples of President Trump’s wallow in the buttery goodness known as “the administrative presidency.” Atop the executive order promising great health care came a directive to cease cost-sharing reduction (CSR) payments to insurance companies as well as new rules allowing more entities to opt out of providing contraception coverage for their employees; these followed numerous prior HHS efforts to undercut Affordable Care Act markets. And the week’s directives went far beyond the ACA, ranging from the treatment of transgender people to environmental regulations to the international agreement aimed at reining in Iran’s nuclear program.
In light of Trump’s past pronouncements, it is tempting to simply shout “Hypocrisy!” and move on. It is certainly telling that Trump’s turn to unilateralism, unlike his predecessors’, comes when both chambers of Congress are run by his own party. Using executive orders as a substitute for legislation is far more common in divided government.
Yes, all presidents
But in fact presidents of all parties, policy preferences and personality types have strong institutional incentives to embrace administrative tactics. As Richard Nathan wrote nearly 35 years ago, “in a complex, technologically complex society in which the role of government is pervasive, much of what we would define as policy-making is done through the execution of laws in the management process.” So presidents have developed a wide range of tools to execute those laws, well beyond executive orders themselves. Further, partisan polarization and divided government makes new legislation harder to obtain.
Thus, presidents have both opportunity and motive to seek unilateral solutions to policy problems. As George W. Bush put it in 2004,
I got a little frustrated in Washington because I couldn’t get the bill passed out of the Congress. They were arguing process. … Congress wouldn’t act, so I signed an executive order — that means I did it on my own.
Doing it “on my own” — and doing it fast, even “FAST” — is very tempting to presidents of all stripes.
But some executive action can evaporate with the next executive — or be challenged in the courts
But even as Trump’s directives shape policy implementation, they also show the potential fragility of administrative action. As Peter Baker recently noted, Trump’s use of executive power has often been directed at undoing President Obama’s.
The ease of that undoing varies by the kind of action. Regulations can only be rescinded when an agency can make a strong substantive case for doing so, meaning that while announcing the end of Obama’s Clean Power Plan is easy, actually repealing or replacing it will take time and sustained effort.
By contrast, executive orders can be reversed by subsequent executive orders — for instance, in shifting the rules for government contracting. And where statutes have been interpreted to yield certain policy results, they can be reinterpreted to yield others. The latest Trump executive order on the Affordable Care Act, encouraging federal agencies to expand insurance options not subject to ACA requirements, may run up against statutory language limiting their ability to do as much as promised. Any resulting rules changes will almost certainly wind up in court.
Indeed, Trump claimed illegality as the reason he reversed both the Deferred Action on Childhood Arrivals (DACA) program and halted CSR payments. His September statement on DACA emphasized its threat to “the core tenets that sustain our Republic,” claiming that “virtually all other top legal experts have advised that the program is unlawful and unconstitutional.” And the Justice Department delivered a legal opinion stating that CSR payments could not be made because they had not been appropriated by Congress.
The Trump administration’s reading of the law might well be correct in these cases; the CSR opinion, notably, is buttressed by a 2016 federal district court decision. It’s worth noting, though, that no small number of “top legal experts” have in fact taken opposite positions on both matters. The district court’s CSR ruling was under appeal — and in other cases President Trump has certainly not treated the rulings of individual judges as sacrosanct. Nor has he renounced aggressive interpretations of statute in other arenas. As usual, what counts as “faithful” execution of the law is at least in part a function of competing policy preferences.
Can Congress find the strength to act?
And that means it’s not just presidents who like the use of executive power. Others gladly encourage it, so long as it serves their own policy goals. As the DACA and CSR debates indicate, for instance, many in Congress are happy with the substance of such policies — and also happy to avoid accountability for supporting them.
The upshot is that Trump’s new love of executive action has managed mostly to put legislators on the spot. This is ironic, but not inappropriate: It is indeed Congress’s responsibility to resolve statutory ambiguity and define the boundaries of executive discretion. This is a job legislators have long shirked — but as they do so, they might find their institutional prerogatives melting away. Like butter.