Trump’s executive orders have had more bark than bite so far
President Donald Trump began his presidency with a series of executive orders and memoranda taking aim at Obamacare, trade deals, federal workers, and abortion. And on Monday, the White House indicated that many more executive orders were coming this week and beyond.
Over the past several decades, the issuing of executive orders has become the standard opening act of a presidency; by bypassing the typically slow-moving checks and balances of congressional approval, an incoming chief executive can affect policy and appear decisive with the stroke of a pen.
On Monday, for instance, Trump signed an executive order reinstating a policy prohibiting any U.S. nongovernmental organization (NGO) that performs or provides information about abortions abroad from receiving federal funding (a stance known as the Mexico City Policy). He signed another that freezes hiring among the federal workforce excluding the military, a move meant to spur gradual but meaningful change in the makeup of the federal bureaucracy. That action echoed the hiring freeze Ronald Reagan instituted on his inauguration day in 1981.
Executive orders, however, can also amount to nothing more than symbolic pageantry.
“A president can just call people and tell them to do something and it often means the same thing as an executive order,” explained Eric Posner, constitutional law professor of the University of Chicago. Since the goal of some executive orders is good publicity, they “can be complete fluff,” he added.
Such fluff includes the creation of presidential commissions and forums that produce little-read reports, and orders that seek to accomplish things beyond the power of the president to actually accomplish. President Barack Obama issued an executive order during his first days as president that sought to close the detention camp at Guantanamo Bay within a year. Eight years later, the infamous prison is still open in part because Obama did not have the power to close it without the approval of Congress.
These kinds of limitations will also apply to Trump’s recent slate of orders. His first, issued on Inauguration Day, focused on Obamacare but repeatedly included the caveat “to the maximum extent permitted by law.” The order may have been an important signal of the administration’s determination to repeal the law, but the immediate policy impact is minimal; a change of regulations must go through an internal review process, and a change of the law requires new legislation from Congress.
On Monday Trump signed a formal withdrawal from the Trans-Pacific Partnership, an order that was unnecessary since the United States had never formally joined the TPP anyway. That order was more symbol than policy tool; White House Press Secretary Sean Spicer announced Monday that it represented “a new era of trade policy” that went beyond the TPP.
Executive orders give Trump, like previous presidents, extraordinary abilities related to war and immigration. Franklin Roosevelt used an executive order to intern Japanese-Americans during World War II, and Abraham Lincoln relied on similar powers to issue the Emancipation Proclamation. More recently, Obama took executive actions to allow some undocumented immigrants to stay in the country while prioritizing the deportation of others.
Political opponents do have recourse against executive orders in the courts. Conservatives challenged Obama’s immigration orders, and last summer the Supreme Court upheld a lower court ruling that Obama had exceeded his executive authority.
Democrats have already shown a willingness to challenge Trump in court on conflict of interest questions and will likely relish any opportunity to challenge his substantive executive orders. Thus far, however, Trump’s orders have been more symbolic than transformative.