Since Donald Trump’s term as US President began in January his use of Executive Orders has been high profile and highly controversial. In this post Nigel Bowles explains what these are. He writes that the constraints upon their use are contestable, contested, and contingent, but that to be effective they must at a minimum be competently and intelligently drafted. Trump’s ‘immigration ban’ order fell short of this standard.
Whatever else President Trump might yet contribute to academic and popular understanding of the power of the United States presidency and the rule of law, he has already reminded the world that the occupant of his office has the institutional means to disrupt settled orders of public policy, to scorn norms established by predecessors, and to breach customary standards of presidential behavior. At the second and third of these three activities, President Trump excels. But his talents in these arts will not help him craft a productive presidency in a system of coordinate governing institutions. For that, he will need a sense of purpose, a feel for power, and a recognition that he is as obliged as any other citizen to comply with legal and regulatory requirements. Unless the President quickly comes to appreciate those qualities’ importance, the cost to his professional reputation within Washington and beyond is likely to be high. The first month and more of his noisy administration indicate that his standard mode of organisational leadership is caprice. That is no basis for government in any system, especially one such as that of the United States which sets high institutional barriers against those who show disdain for the customary rules of political coalition-building.
Despite his advantage in having Republican majorities in both the House and the Senate, the President has chosen not to engage on legislation with those majorities but instead to rely upon unilateral moves. He has spent precious capital on quotidian and querulous hectoring via his Twitter account, including using that platform to denounce public institutions and those committed to pursuing the public good for being the people’s ‘enemies’. Such behaviour might in the short-run please his political base, but is unlikely to advance his broader purposes (whatever they might prove to be).
A more established unilateral option is that of the issuing of Executive Orders, instruments of presidential authority with considerable potential effect. In issuing such orders, presidents have the opportunity to alter both policy content and the politics of that policy. Here, presidents can and may exploit the advantage of their office’s singularity. They can by their decisions do what individual senators, representatives, and federal judges cannot. They may, as Kenneth Mayer has written (pp. 4–5), change policy’s content and its administration, reorder executive branch agencies, and set out what they will and will not understand by those provisions that Congress writes into law.
In the course of his two terms in office, President Obama issued fewer Executive Orders than either of his two immediate predecessors. But a significant proportion of Obama’s orders concerned questions of high political salience rather than merely administrative matters (which have comprised the majority of Executive Orders). Accordingly, Obama’s orders are now a vulnerable part of his legacy because they are in principle simply reversible in ways that statutes usually are not.
As expressions of presidential authority, Executive Orders are subject to limit. Unmentioned in the Constitution, the constraints upon their issue are defined by the extent of the President’s authority as granted by the Constitution or by statute. That was Justice Black’s view in the crucial case of Youngstown Sheet & Tube Co. v. Sawyer, in 1952. However, what those limitations actually are is contestable, contested, and contingent. Finding those limits is a matter for presidents in interaction with other participants in a constitutional dance without definitive resolution. Youngstown’s rebuff to President Truman notwithstanding, federal courts have in practice rarely restrained presidents’ uses of Executive Orders. That has been so even when the orders in question have plainly violated constitutional protections. For example, President Roosevelt issued numerous Executive Orders that nationalised companies in clear breach of the Fifth Amendment’s ‘taking’ clause: by Executive Order 9412, Roosevelt decreed that ‘Possession and control of all common carriers by railroad, express companies, terminal companies and associations, sleeping, parlor, and railroad-owned or controlled private car companies (all hereinafter referred to as carriers) located in the continental United States, together with any and all appurtenances and facilities used in connection therewith, are hereby taken and assumed, through the Secretary of War, as of seven o’clock P.M., on the twenty-seventh day of December, 1943.’ Context here is nearly all: the Second World War removed virtually all restraints upon presidential power as expressed in the scope of Executive Orders – and much else. The President’s audacity in the taking of property went unchallenged by federal courts, as did ‘Executive Order 9066 – Authorizing the Secretary of War to Prescribe Military Areas’ of February 19, 1942 by which more than 110,000 Japanese-Americans were interned. In Korematsu v. United States, the Supreme Court upheld by six to three the constitutionality of the President’s unjustified and unjustifiable Order.
Nevertheless, the effectiveness of Executive Orders requires at a minimum that they be competently and intelligently drafted, and in part upon the President appreciating that they neither are nor can be self-executing. Both points are illustrated by President Trump’s issuing of Executive Order (EO) 13769, Protecting the Nation from Foreign Terrorist Entry into the United States. EO 13769 was halted by Federal District Court Judge James L. Robart who granted a Temporary Restraining Order (TRO) to the plaintiffs in the case. The Ninth Circuit Court in San Francisco upheld the District Court’s judgment.
Proper process matters. And it mattered for EO 13769 in ways that resulted in embarrassing (if temporary) defeat for the President himself. Had the President’s staff submitted the proposed Executive Order for review by both the Office of Management and Budget (which would have sought comments from affected Departments) and the Attorney General, the final version would have been at least competently and intelligently composed, whatever might be said about its illiberal purposes. Accordingly, its vulnerabilities to judicial review would have been much reduced. But whether because they were ignorant of procedure’s importance or because they did not care, President Trump’s staff did not comply with federal regulations governing the issue of such orders. Those well-known requirements are published in Executive Order 11030 signed by President Kennedy on June 19th, 1962, section 2 of which requires that ‘A proposed Executive order or proclamation shall first be submitted, with seven copies thereof, to the Director of the Office of Management and Budget, together with a letter, signed by the head or other properly authorized officer of the originating Federal agency, explaining the nature, purpose, background, and effect of the proposed Executive Order or proclamation and its relationship, if any, to pertinent laws and other Executive Orders or proclamations.’ Rather than complying with the established process governing the Order’s issue, staff of the White House’s Domestic Policy Council sent the draft Order direct to the Office of Legal Counsel in the Department of Justice which, on 27 January 2017, approved it ‘with respect to form and legality’ before returning it to the President himself. Remarkably, White House staff also sought input from certain trusted Capitol Hill staff – not elected Republican officials – who were then required to sign nondisclosure orders. There is no precedent for such behavior.
In thumbing their noses at procedural norms, the President’s staff served the President poorly, and showed poor judgement. Richard Neustadt’s proposition (p. 152) that ‘… the presidency is not a place for amateurs’ is true not just of the elected President but of the staff who serve him, the office, and the American people. Executive Orders are no substitute for political acuity and respect for the law. To be effective, they must express both.
About the author
Dr Nigel Bowles is a Senior Research Fellow at Corpus Christi College, Oxford. He was formerly Director of the Rothermere American Institute at the University of Oxford.