DC Deciphered

“But can he do that?!”  That’s the question I’ve been hearing a lot this past week in conversations with friends and family, as we’ve all watched Donald Trump careen his way through his first week as President, eager to show  his fans that he’s “getting stuff done.”  Trump has taken a lot of actions that might leave one wondering if these are things a President is actually permitted to do.  What’s probably stood out the most in week one, as far as policy making (ignoring Trump’s personal battles), is his use of the executive order.

There was a flurry of activity during Trump’s first week in office, and almost all of it – including the most controversial of all, Trump’s “Muslim ban” which caused so much chaos at airports over the weekend – seemed to consist of Trump signing “executive orders.”  So what exactly are executive orders and what can Trump do with them?

What Is An Executive Order?

An “executive order” is actually just one of several different types of formal instructions or directives that the President can issue in order to give guidance to federal agencies or employees or department heads on how to interpret or implement federal laws.  The three main types of directives the President can use are (1) the aforementioned executive order, (2) the memorandum and (3) the proclamation.  As a catch-call, you might hear any or all of these three being described as the President taking “executive action” (even though the term “executive action” is technically a much broader term that describes any activity that comes from the executive branch of the government). For purposes of simplicity, I will use “executive action” in this post to refer to all three types of directives.

Of the three types of executive action “executive orders” get the most focus, but all three have the force of law (though proclamations are generally only used for kind of fluffy stuff, like declaring holidays). Executive orders get more notice than memorandum because all executive orders must be numbered consecutively and recorded in the Federal Register. Memoranda do not have this recording requirement and are therefore easier to slip under the radar, if the President so desires. Also memoranda can be used for handling minor, mundane housekeeping details of the administration.  So hundreds of memoranda might be issued per term that aren’t newsworthy at all.  But memoranda can also be used for making significant changes.

So as far as their purposes, the distinction between executive orders versus memoranda can be slippery, and both can be used for making laws of major significance.  All three types of directives are effectuated by the President on his own, without the need to get approval from Congress.  However, the President is somewhat limited in the scope of what he may cover with these directives.  A significant thing to know about this method of law making is that any of these actions can be easily overturned by a successor President who simply signs a new executive order or memorandum undoing the old one.

The authority for the President to take these actions comes from Article 2 of the Constitution, which grants the President executive powers and directs him to “take Care that the Laws be faithfully executed.”  There is no specific mention in the Constitution of the term “executive order” or “memorandum,” so this section just broadly grants the President power. The Constitution also limits what the President may do, however, because it explicitly grants many core powers to Congress.  So the President cannot use executive actions to infringe on the role of Congress. And that – along with the general constraints of the Constitution, e.g. the First Amendment, equal protection, due process – provides the main limit on what the President may do with these directives.  The determination of what exactly is within the scope of the President’s power is somewhat vague, and therefore, it’s not unusual for some of the more controversial presidential directives to end up in court.

Something of a guideline for judging executive actions was developed in the Supreme Court case that came to be known as Youngstown Steel.  That case gave us a 3-part test for determining when a President is acting within his permitted powers. Essentially what the case said was that (1) the President can make use of executive actions in areas where Congress has given him authority to act (either express or implied).  In those instances the President has wide latitude. (2) The President can also act where Congress has left something up in the air by neither granting nor denying authority, though the President might not be given as much latitude in these instances.  And finally, (3) the President cannot use the directives to act against the will of Congress (whether express or implied).

So executive actions can’t be used to overturn a law passed by Congress, and in cases where Congress has considered acting but decided not to, the President may not then act through executive action, because Congress has already made clear that it would go against their will. Some specific ways Congress can limit the President’s power: Congress can limit funding for certain programs, which essentially takes away a President’s authority in that area, or after a President signs an executive order or memorandum, Congress can make a law that overrides it (though a President can veto any such law, unless Congress passes it with a veto-proof majority).

What Exactly Has Trump Done With Them So Far?

So now that we know what these various executive actions are, what exactly did Trump do this past week?  All those times you turned on the news and saw a clip of him sitting at his desk with a pen, proudly holding up some document he just signed, he was using the tools I just described above.  Five of them were executive orders.  The other 10 were all memoranda.  The most controversial – the one Trump calls “extreme vetting” but his opponents are calling the “Muslim ban” – signed on Friday, was an executive order.  But another very controversial item was done by memorandum: Trump reorganized the National Security Council to remove the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff from the principals meetings and replace them with his political aides Steve Bannon and Reince Preibus, who have no foreign policy or intelligence experience (Bannon was a naval officer more than 30 years ago).  Other memorandum Trump signed include instructions for building the Keystone XL Pipeline & the Dakota Access Pipeline, reinstating & expanding the global gag rule on funding for any groups that provide abortion counseling or referrals, and withdrawal from the Trans-Pacific Partnership trade agreement.

Some of the other high profile things Trump did by executive order (as opposed to memorandum) were:  instructing the Department of Homeland Security (DHS) to begin construction of the border wall with Mexico;  giving instructions to DHS on prioritization for immigration enforcement & calling for a crackdown on sanctuary cities; and directing Health and Human Services & other relevant agencies to begin unraveling the Affordable Care Act (though only so much of it can be undone by order, much of it will require legislation to be reversed).

The White House is keeping a list of all the presidential directives Trump has signed so far here. For a list kept by a party outside the White House, PBS is doing a good job of keeping this list up to date, but their descriptions of the items are very limited (and just a note, they list all the directives together, whether executive order or memorandum). This CBS list gives more detailed descriptions of the different directives, but is missing a few items.

How’s That Working Out So Far?

While a President does not need approval from Congress when putting one of these directives into effect, he typically consults with both legal counsel and the agencies affected before announcing any orders.  This is done in order to make sure the instructions will pass legal muster and to be sure that they are written in a way that makes implementation practical – or at least possible – for the agencies involved.  It is also typical to consult with key members of Congress who have knowledge on the matter involved and whose support the President might need in defending or selling the actions to the public.

It appears that in the case of the executive actions Trump took this past week, he did none of the above.  NPR reports that when asked if it had reviewed Trump’s executive actions, the Office of Legal Counsel at the Department of Justice had “no comment.”**(see update below) And Politico has stories of numerous agency heads who were not consulted about orders that affect their departments and were completely “blindsided” when the orders were announced.  According to the same Politico article, members of Congress were caught completely off guard as well.

In fact, the New York Times was out Sunday with an amazing story about Trump signing the Muslim ban. Reportedly, the Secretary of the Department of Homeland Security, who would be the top man in charge of implementing this policy, was only just being briefed about the policy changes at the very moment that Trump was announcing the signing.

Halfway into the briefing, someone on the call looked up at a television in his office. “The president is signing the executive order that we’re discussing,” the official said, stunned.

And NBC News reported that the National Security Council, the Department of Defense and all other relevant agencies were also prevented from having heir lawyers review the travel ban in advance.

All of this is important because it all plays a role in how effective Trump can be with these directives.  Most significant will be whether they will hold up legally.   If Trump truly didn’t submit them for legal review, and he also didn’t get assistance from the agencies involved, there’s a much higher chance there will be problems with the orders that will make them susceptible to legal challenge. We saw that this weekend with the Muslim ban. (So far those were only temporary rulings to deal with the immediate situation happening with the incoming flights, but you should expect challenges to the overall law as well). Benjamin Wittes of Lawfare Blog points out that Presidents are generally given very wide latitude by courts when it comes to immigration issues*, but thanks to Trump’s incredible  incompetence (and, Wittes adds in his opinion, malevolence) in putting this order together, the new law is a great target for lawsuits.  And we can almost certainly expect that Democrats and/or civil rights and other activist groups will have more challenges to other executive actions coming as well.

Additionally, even for the executive actions that are not challenged legally, the fact that Trump didn’t consult with the agencies involved will likely cause problems with implementation.  We saw that with the Muslim ban as well.  There was mass confusion over the weekend as none of the people who were supposed to be in charge was sure exactly how to apply the new law. When questioned about this problem in interviews over the weekend, Trump’s representatives weren’t all on the same page with their answers, and Reince Priebus even gave different answers within one interview.  When a law is poorly implemented it can cause a big hit to the law’s popularity, so it will be a real drag on Trump’s agenda if we see the same kind of disarray with his other executive actions.

Trump isn’t likely to have quite as much trouble with the other directives he’s signed so far, as the Muslim ban was particularly ripe for chaos, with people arriving on international flights just hours after it was announced. The results played out in the public locations of airports and many involved came with particularly sympathetic stories.

With the other executive actions signed this week, the relevant agencies will have more time to figure out how to implement them, despite not being consulted in advance, and the consequences of the new policies might not be quite so dramatic and compelling, at least not immediately.  But we still might see some fireworks coming, and as for legal challenges, there are bound to be more even if we don’t yet know where.  Especially since I expect Trump still has many more executive actions planned for us, and those around Trump are likely to learn from their mistakes even if Trump doesn’t.

Do As I Say Not As I Do?

One last thing I can’t resist noting about executive orders is the conspicuous silence of the GOP on the topic right now.  During Obama’s eight years in office, Republicans used to howl over his use of executive orders.  Sen Jeff Sessions, the current nominee for Attorney General called him an emperor. House Speaker Paul Ryan described him as “lawless.” Governor Chris Christie called Obama both a king and a dictator. Even Donald Trump himself had something to say on the topic:

Yet now that Donald Trump is using them, and has actually broken Obama’s record for use in the first week, it’s crickets from the GOP.  (A decent number of Republican’s have  spoken out to say Trump’s “Muslim ban” goes too far, in terms of substance, but they haven’t criticized him for doing it by executive order, and none have spoken out in general on his use of executive orders. And unfortunately, none of the GOP party leaders are on the list of those even speaking out against the ban).

*****

*Ironically though, the most controversial of Obama’s executive actions was a memorandum relating to immigration enforcement. It would have deferred deportation for millions of undocumented immigrants who met certain requirements.  The action was challenged by Texas and 25 other states with Republican Governors.  An injunction was ordered until the suit could be settled, and that case is currently still tied up in court, but after having won reviews at several levels, it looks very favorable for the Republican Plaintiffs to win a ruling that President Obama did indeed exceed his authority.

**Update 2/2: The Office of Legal Council (OLC) at the Department of Justice has produced a memo in response to a Freedom of Information Act request indicating that it did indeed review & approve this executive order before it was released to the public.  The OLC review is basically just a narrow review looking at whether the order is legal on its face, judged only by the text of the order.  That review does not necessarily mean that the executive order will survive legal challenge before the courts.

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