governing through executive order

Governing through Executive Orders

Throughout President Barack Obama’s tenure, and especially in its waning years, conservatives lambasted his governing through executive orders.  They have a point: The Constitution specifically gives Congress the power to legislate, limiting the president to faithful execution of those duly enacted laws.  Over time, however, the growing power of the president — the imperial presidency — has seen these chief magistrates increasingly assume quasi legislative powers.  But this rightful critique of Obama falls way to praise for President Donald Trump when he acts unilaterally to enact sweeping policy decisions; Trump carries further Obama’s tendency to executive orders and has used this extra-constitutional power [more in 9 months than Obama did in 8 years].  Conservatives, to retain credibility, must also hold Trump accountable for his governing through executive orders.

Trump signed 42 executive orders in his first 200 days whereas Obama only signed 22.  Trump’s on pace to sign 67 executive orders this year, almost double Obama’s yearly average of 35.  That would be the highest yearly average since Jimmy Carter.

To be sure, not all executive orders show an overbearing president encroaching on Congress’s power to make and pass laws.  One Trump executive order established an infrastructural advisory council, clearly not a move that will change public policy.  But others have been far more sweeping: Both travel bans, ending DACA protection for minors here illegally, exempting states from certain Affordable Care Act guidelines and requirements, and ending cost-sharing subsidies (a move which will destabilize the healthcare markets and increase the price of healthcare for many) all either stress the limits of presidential power or alter existing legislation.

The travel bans represent a significant increase in proclaimed presidential power.  Whereas the 1965 Immigration and Naturalization Act precludes discrimination based on national origin and the commerce clause of the Constitution gives Congress the power to regulate foreign commerce (a category in which people naturally fall), Trump’s bans assume the president’s authority to transgress those bounds in the name of national security.  Multiple courts found the executive failed to provide an adequate basis for national security concerns, saying that the president cannot simply use that phrase without a legitimate basis.  Unfortunately, the Supreme Court, which always treads too carefully in these areas, allowed Trump’s sweeping orders.

Executive orders undermining duly enacted legislation shows both an assumption of legislative power and a willingness to bypass the legislature to accomplish policy goals.  Undermining and putting into doubt the future of existing legislation is obviously a legislative feat, especially considering the president is tasked with faithfully executing the laws, not picking some of which to let the legislative will slide.  It blurs the line between two separately empowered branches of government and leads to overlap of duty which the president, as head of state and government (and the only elected official representing all people), uses to declare supremacy and thus assume more power.  This becomes especially important in times of mixed legislative control or when a weak president fails to get his legislative program passed through Congress.  Trump, of course, failed in his healthcare repeal and replace attempts, so he’s deliberately undermining existing law to grease the skids for a future repeal attempt.  On top of hurting Americans, it’s a power grab paradoxically made possible by Trump’s very weakness as party leader.

Trump’s actions have a direct, and at times coercive, effect on the American people, a power wielded generally just by the legislature (and, even then, only with the pulling of many teeth).  He stretches the bounds of presidential authority by assuming legislative powers and failing to faithfully executive the laws (his oath of office).  Conservatives and Republicans rightly criticized Obama for reliance on executive orders; they must now do the same to Trump, whose reliance on such actions surpasses Obama’s.  Though actions may be favored, for sake of logical constituency and to avoid hypocrisy, conservatives must speak against Trump’s executive orders and actions.

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