Trump's Executive Orders Are Scary, but Are They More Bark Than Bite?
The first week of the new administration was full of big announcements, but scholars say his actions might be more about PR than real results.
The past week's news cycle has been dominated by Donald Trump's wave of executive actions, many of which referenced major campaign promises to build the wall, cut the size of government, and make life miserable for undocumented immigrants. As other outlets have noted, modern presidential administrations often have a busy first few weeks. But the tenor of Trump's actions has been more bombastic and his pace has been exceptionally rapid—and though his orders and memoranda might not ultimately achieve their goals, they indicate that he's basically leveraging executive power for maximum spectacle.
To recap a frenetic week: As of Friday afternoon, Trump had signed one fairly inconsequential law, four executive orders, eight memoranda, and two proclamations. (The difference between memoranda and orders is fairly technical—obscure enough that even the president himself seems to think he's signing orders when actually they're memoranda.)
One memorandum froze new regulations, which Andrew Rudalevige, a scholar of executive powers, told me any president would enact in order to get a grasp on the executive branch. A few other actions—a call to streamline environmental and other regulatory reviews, a federal hiring freeze, a reinstatement of the anti-abortion the Mexico City policy—might have been done by many Republicans. Trump's withdrawal of the US from the Trans-Pacific Partnership was something Hillary Clinton said she would also do. And his decision to ask agencies to dismantle Obamacare as much as they could may have been a carbon copy of an action planned by 2012 GOP nominee Mitt Romney.
But his crackdown on illegal immigration, stated dedication to start work on a border wall, and plans to pull funding from "sanctuary cities" as punishment for those jurisdictions protecting undocumented immigrants were all pure Trump.
"Many of the president's early orders are fairly broad," presidential powers scholar Joshua Kennedy told me, "but this is not uncommon. Executive orders seem to be following a trend of getting broader as time goes on."
The most notable thing about Trump's actions so far might be their unusual language.
"They reflect a campaign rhetoric-slash-press-release approach to some of these issues," said Rudalevige. "Some of them have a lengthy purpose section, which is not necessarily common... [In the one on sanctuary cities] there's a line about, 'sanctuary jurisdictions have caused immeasurable harm to the American people and to the very fabric of our republic.' That's not very legal language. That is a belief—and I'm not sure one that's widely shared."
To Rudalevige, this suggests the president isn't clearing actions with the Office of Management and Budget, which tends to demand tightly legalistic language and warns against bombast. That gels with emerging reports that Trump's actions may be mostly over seen by chief strategist Steve Bannon and advisor Stephen Miller, with little to no input from lawyers, lawmakers, or the agencies that will be responsible for implementing them. If true, this is unprecedented in the modern presidency: Ronald Regan was fairly unilateral in creating his 1981 executive actions, but even he cleared his drafts with the OMB.
That system would account for Trump's aggressive pace. He's the first president to sign an executive order on day one since Bill Clinton and seems to be outpacing the last few presidents. His highly publicized daily signings of forcefully worded and sound-bite ready actions serve to energize his base, giving the impression of rapid, solid actions on key issues.
But this pace and tone is arguably not the most sustainable path for Trump to accomplish his agenda. Executive actions can interpret law and direct departments and agencies to a degree, but they are limited by the vagaries of law and the need for legislative and administrative buy-in. It's hard to absolutely invalidate them, but easy for them to at least partially run aground. Review processes and legalistic language, Rudalevige explained, exist to help get everyone onboard, let the president know what he can legally achieve, and protect him from the unintended consequences of imprecise language. Shirking that process increases the risk that these orders will fail; there've already been numerous reports about potential legislative and agency pushback or bottlenecks on some provisions in Trump's flashier orders and questions about the legality of others.
Many of Trump's actions are also peppered with variations on the phrase "to the extent permitted by law," which suggests a lack of clear plans for what should be done or knowledge of what could be done and boils most of his actions down to requests to other bodies to just do something. As Rudalevige put it, this "does make one wonder if the authors know what the law actually says."
For all the uncertainty that the bluster and rush of these actions entails, though, it is likely that some provisions in them will still have a rapid and real effect. Sanctuary cities may successfully fight Trump's effort to defund them in court or his wall may never actually get built—but his instructions to broaden the definition of criminality in deciding which undocumented immigrants to deport will lead to a serious crackdown on that community. The Mexico City policy will definitely negatively affect healthcare availability for women in developing countries. The Obamacare executive order, though vague in its intentions, could lead to imminent changes in the healthcare market that will have real effects on millions. And the hiring freeze may harm the understaffed National Parks Service in particular.
The orders' primary purpose may not be to drive policy, but instead to serve as as just one more PR move from a real estate mogul who built an empire on optics.
"Even if these orders don't affect policy outcomes, the Trump White House can use these orders as leverage against Congress to claim that he acted even if Congress wouldn't," said presidential scholar Brandon Rottinghaus. "This puts Congress in a tough spot politically."
It's impossible to tell whether the Trump and his administration are issuing forceful and perhaps unilateral actions because they believe it's good and effective to sidestep bureaucracy and Congress, or if they just want to be able to take credit for making big moves even if the orders end up being more bark than bite. But it's always been hard to distinguish bull-headedness from cunning when it comes to Trump.
Either way, this week has been important insomuch as it sets a precedent for rule by assertion and display, rather than detail or final results. These actions will look good to the president's supporters, but also terrify marginalized groups like immigrants and make Trump's political opposition nervous. What else should we have expected?
Follow Mark Hay on Twitter.