Like perhaps no president before him, President Trump has made Oval Office signings into a public ceremony of achievement.
It’s already a sort of ritual: Reporters crowd in to witness Mr. Trump scrawl his name at the end of a two-page official document. Then he holds up the papers for a closer camera shot. Sometimes he smiles. Sometimes he just narrows his eyes, mouth set, as if to say, “Mission accomplished. Next?”
And some of these directives set real things into motion. Last Friday’s executive order on immigration is a case in point. It temporarily banned refugees and citizens of seven predominantly Muslim countries from entering the country. That produced mass confusion at US airports and consternation in capitals around the world.
But many of these ceremonies are not as definitive as they appear. They order up things that Congress has yet to pay for, or that existing laws limit, or that federal courts might reject.
US voters typically see their government as centered on a powerful president around whom all else revolves. That’s a role longtime TV star Trump is happy to play. In Washington’s reality show, however, Congress is pretty influential, and the Supreme Court has the final say. Presidents can’t always order. Sometimes, all they can do is urge.
“There is a certain theatrical element here,” says Andrew Rudalevige, a professor of government at Bowdoin College in Brunswick, Maine. “The signings are one way of showing that the administration is jumping into action.”
Through its first week the Trump administration took 15 “Presidential Actions to begin fulfilling [the president’s] promises to Make America Great Again,” according to a White House press release. These ranged from the refugee and immigration order, to Trump’s executive order intended to begin repeal of the Affordable Care Act, to various presidential memorandums on freezing federal hiring, starting oil-pipeline construction, and rebuilding the US armed forces.
Executive orders, memorandums, and various offshoots aren’t mentioned by name in the Constitution. No law directly established them. But from George Washington on down, US presidents have historically utilized written instruments to direct the executive branch and implement policy, notes a Congressional Research Service (CRS) 2014 report (.pdf) on the practice.
Often they’re used for mundane acts such as the establishment of commissions or the ordering of agency priorities. Sometimes they are more controversial. Franklin Delano Roosevelt issued an executive order to create internment camps for Japanese-Americans during World War II. Abraham Lincoln used one to suspend the writ of habeas corpus during the Civil War.
Their authority derives from the president’s authority to run the executive branch’s departments and agencies, and the constitutional provision that the president faithfully executes the nation’s laws. But the flexibility and power of executive orders is tempting; sometimes, chief executives run into trouble when they issue orders that “constitute unilateral executive lawmaking that impacts the interests of private citizens and encroaches upon congressional power,” notes CRS.
The classic example of this was President Truman’s executive order that nationalized US steel mills during a worker strike to ensure continued production during the Korean War. The Supreme Court struck this down, in part because Congress a few years previously had expressly rejected seizures as a means to settle labor disputes.
Trump’s immigration order itself may be in legal trouble, according to some critics. While chief executives have extensive powers to control border entry, federal justices might see the order as an unconstitutional violation of religious rights.
Other Trump executive orders just don’t quite live up to their billing. The Obamacare order, for example, just chips at the health law’s edges. Repealing and replacing the Affordable Care Act will largely be a congressional responsibility.
Trump’s order to begin construction of a southern border wall still needs money. Absent an advance payment from Mexico – unlikely in the extreme – Congress must appropriate the funds. It’s likely to do so, but as yet it has not.
Last Friday, Trump signed a presidential memorandum titled “Rebuilding the US Armed Forces.” It contains provisions calling for a review of America’s nuclear posture and the possibility of building more robust missile defenses. But again, the paper by itself isn’t a promissory note. As noted in Section 4 (b), “This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.”
Or take last Friday’s executive order on regulations, which said that for each new US government regulation, two prior regulations must be identified for elimination.
Existing congressional statutes mandate many regulations, says Bowdoin’s Professor Rudalevige, a specialist in the study of presidential management of the executive branch. Establishing them requires a process of drafts, notification, and comments that can take years. That probably can’t be undone with a stroke of a presidential pen.
“It’s unclear how this will work,” he says.
'Order' vs. 'guidance'
For the most part, the language of Trump’s actions recognizes that their course might not be smooth. Almost all contain a phrase along the lines of “as consistent with existing law” or “as permitted by statute.” In other words, “we’ll do this if possible. If not.…”
But there’s another Trump word choice that may be just as indicative. When President Obama issued his controversial immigration orders, such as his establishment of the program to defer prosecution of young immigrants brought illegally to the US by their parents as children, he framed them as “guidance” for the Justice Department and other parts of the executive branch.
Trump’s immigration action, by contrast, was an “executive order.” In legal terms there’s not really any difference. In semantic terms, perhaps there is. Mr. Obama was trying to make his moves look less radical. Trump is making his look as powerful as possible.
“They’re looking at the same law … in opposite directions,” says Rudalevige.