As he campaigned for the presidency, Donald Trump argued that Barack Obamaâs frequent use of unilateral administrative tools made Obama a weak leader. âWe have a president that canât get anything done,â Trump told an interviewer in January 2016, âso he just keeps signing executive orders all over the place.â
That spring he added,
I want to not use too many executive orders, folks. â¦ Obama, because he couldnât get anybody to agree with him, he starts signing them like theyâre butter. So I want to do away with executive orders for the most part.
Fast forward to a White HouseÂ news release marking President Trumpâs first 100 days in office. It claimed that Trump had âaccomplished more in his first 100 days than any other President since Franklin Roosevelt.â The proof? He had signed more executive orders in that period than any of Rooseveltâs other successors.
And while RepublicansÂ fiercely criticizedÂ Obama for pledging to use his âpen and his phoneâ to get around legislative gridlock, this week â using his phone â 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 â FAST
â Donald J. Trump (@realDonaldTrump) October 10, 2017
Indeed, last week gave us many examples of President Trumpâs wallow in the buttery goodness known as âthe administrative presidency.â Atop the executive order promising great health care came a directive to cease cost-sharing reduction (CSR) payments to insurance companiesÂ as well asÂ 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 weekâs directives went far beyond the ACA, ranging from the treatment of transgender people to environmental regulations to the international agreement aimed at reining in Iranâs nuclear program.
In light of Trumpâs past pronouncements, it is tempting to simply shout âHypocrisy!â and move on. It is certainly telling that Trumpâs turn to unilateralism, unlike his predecessorsâ, 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. AsÂ Richard Nathan wrote nearlyÂ 35 years ago, âin 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.â So presidents have developed a wideÂ range of toolsÂ 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 itÂ in 2004,
I got a little frustrated in Washington because I couldnât get the bill passed out of the Congress. They were arguing process. â¦ Congress wouldnât act, so I signed an executive order â that means I did it on my own.
Doing it âon my ownâ â and doing it fast, even âFASTâ â is very tempting to presidents of all stripes.
But some executive action can evaporate with the next executive â or be challenged in the courts
But even as Trumpâs directives shape policy implementation, they also show the potential fragility of administrative action.Â As Peter Baker recently noted, Trumpâs use of executive power has often been directed at undoing President Obamaâs.
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 Obamaâs 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 â 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 TrumpÂ 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 certainlyÂ wind up in court.
Indeed, Trump claimed illegality as the reason he reversedÂ both the Deferred Action on Childhood Arrivals (DACA) program and halted CSR payments. HisÂ September statement on DACAÂ emphasized its threat to âthe core tenets that sustain our Republic,â claiming that âvirtually all other top legal experts have advised that the program is unlawful and unconstitutional.â And the Justice Department deliveredÂ a legal opinion stating that CSR payments could not be made because they had not been appropriated by Congress.
The Trump administrationâs reading of the law might well be correct in these cases; the CSR opinion, notably, is buttressed by a 2016 federal district court decision. Itâs worth noting, though, that no small number of âtop legal expertsâ have in fact taken opposite positions on both matters. The district courtâs CSR ruling was under appeal â and in other cases President Trump has certainly notÂ treatedÂ the rulings of individual judges as sacrosanct. Nor has he renounced aggressive interpretations of statute in other arenas. As usual, what counts as âfaithfulâ 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 itâs 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 â and also happy to avoid accountability for supporting them.
The upshot is that Trumpâs new love of executive action has managed mostly to put legislators on the spot. This is ironic, but not inappropriate: It is indeed Congressâs responsibility to resolve statutory ambiguity and define the boundaries of executive discretion. This is a job legislators have long shirked â but as they do so, they might find their institutional prerogatives melting away. Like butter.