Executive Orders in the Trump presidency: a short introduction

nigel-bowles

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.

Continue reading

Monitor 65: Testing constitutional times

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has included the High Court and Supreme Court rulings in the Article 50 case, the unveiling of Theresa May’s Brexit plan and the election of Donald Trump as President of the United States, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

monitor-65-coverPolitics remains fast-moving. Its unexpected turns have raised fundamental questions about the constitutional order, in the UK and beyond – including the rightful place of voters, elected legislators, governments and judges in political decision-making – as well as the media’s role in questioning those decisions.

Here, Brexit remains the dominant preoccupation. The previous issue of Monitor reported how ‘ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position’. A lot has changed since then.

Following rulings by the High Court on 3 November, and Supreme Court on 24 January, ministers had to accept that they require parliamentary approval to trigger Article 50; at the time of writing, the European Union (Notification of Withdrawal) Bill has now passed through the Commons and awaits scrutiny in the Lords (see page 3). Even before the bill’s introduction, the government had conceded (in December) that its Brexit plan would be published prior to triggering Article 50, and (in January) that this would include a white paper – commitments necessary in order to see off potential Commons defeats. With help from the courts, parliament has rediscovered some of its teeth.

Continue reading

The US presidential transition will occupy the Trump administration for months to come

Donald Trump will be inaugurated as the 45th US President next week, but the vast task of assembling the new administration will continue for months to come. In this post Donald F. Kettl explains what America’s unique transition process involves and outlines what progress Trump has made so far.

There is nothing in the world quite like the American presidential transition. In the foreground is the mega-debate about how the new president will shape policy (see our previous blog posts, here and here). But in the critical background, there is the incredible job of actually putting the new administration together, a challenge unlike that facing any other major democracy in the world.

It is an unusually long stretch between the election and the start of the new administration –10 weeks, compared with the virtually instantaneous transition in the United Kingdom.

In the US, the transition involves far more people – nearly 700 top officials, who head government agencies, nearly all of whom require confirmation by the Senate. There are another 4,000 appointees across the government, including policy assistants and political staffers, that the president appoints and who do not require Senate confirmation.

In the US, many of the appointees come into government with relatively little preparation. Despite constant warnings from experts about the need to plan months before the election for the complexity of the transition, the search for cabinet ministers often doesn’t begin in earnest until after the election. British transitions are much easier, with shadow ministers in the opposition bird-dogging the government, with fewer positions to fill, and with no separate legislative confirmation process.

For better or worse, there are reasons why the American system has evolved in this way. The transition period is actually shorter than it used to be – until 1937, the inauguration was in March, because it often took months in an agrarian society for newly elected officials to put aside their work and make their way to Washington. Having so many political appointments has long been thought to be a good thing, at least by some people, because it provides a way for new presidents to put their stamp on the workings of government. Senate confirmation has provided a reinforcement of the checks-and-balances system on which the US Constitution builds.

Continue reading

The Trump administration is likely to run into major obstacles in policy implementation

colin_provost

In a recent post on this blog Nigel Bowles argued that Donald Trump will largely be able to carry out his policy agenda when he becomes US president in January. In this post Colin Provost joins the debate, concluding that in the areas of trade, health care, financial regulation and climate change Trump is likely to run into major obstacles. This is because many of Trump’s campaign pledges involve large, complex governing systems and he will have limited control over these systems in their entirety.

Nigel Bowles recently wrote on this blog that President-Elect Trump will be able to push through key parts of his policy agenda in the coming four years, because of the powers afforded to him by the US Constitution and because collective action problems within Congress will prevent meaningful attempts to block his agenda. Many of Dr Bowles’ points are correct and some scholars may argue he does not go far enough in articulating the strengths of the administrative presidency. However, President-Elect Trump has made numerous grandiose promises which potentially affect large policy making networks. The more groups he touches, the more resistance he possibly engenders, thereby making policy making a grinding and tortuous battle. In this post I look at Trump’s proposals for trade, health care, financial regulation and climate change and conclude that his administration is likely to run into major obstacles in each of these areas.

As Dr Bowles has articulated, Donald Trump benefits from collective action problems in Congress and a broad range of constitutional, as well as unilateral, powers. Since the Nixon administration, every president has presided over what Richard Nathan referred to as the ‘administrative presidency’. The president ideologically steers dozens of federal agencies through appointments, s/he can also impose new substantive and procedural requirements on agencies through the use of executive orders, and s/he can employ ‘signing statements’ which enable the president to specify which parts of the law by which s/he would abide. Perhaps most importantly, Terry Moe and William Howell have argued that the Constitution’s language that the president ‘shall take care that the laws be faithfully executed’ builds ambiguities and discretion into the formal power structure that the president can shrewdly exploit.

Moreover, Trump will have Republican majorities in Congress, as well as a conservative Supreme Court after Trump likely pushes aside Merrick Garland in favour of a more conservative nominee. However, many scholars have noted in recent decades how we no longer study ‘government’, but ‘governance’. Implicit in this concept is the idea that governing is performed by a very large coalition of actors involved not only in a national government, but in subnational governments, in foreign governments, in markets, in non-governmental organisations, in the media, in think tanks and so on. These actors do not all represent veto players of equal power, but taken together, creative means of resisting policies can often be formulated and applied. When we look at some of the President-Elect’s proposals closely, we can envision how his proposals may not be implemented to the extent he would prefer.

Continue reading

Will Congress be able to hold President Trump in check?

nigel-bowlesDonald Trump will become the 45th President of the United States in January, but will he actually be able to carry out his agenda? Nigel Bowles writes that he will largely be able to. In the areas of trade, security, taxation and judicial appointments Congress will struggle to constrain him under current law and politics. Changing immigration law and reforming the Affordable Care Act are likely to prove more challenging. Nonetheless, during the first year of the Trump presidency American politics is likely to give the appearance of being what it only rarely is: a presidential system. For better or for worse, President Trump really will be in charge.

The United States constitution is Madisonian in design and spirit. Separation of powers and federalism in combination are the structure against which, through which, and by which American politics plays out. Much else matters: party, ideology, public opinion, crises external and internal, leadership’s quality of imagination and purpose, especially. But the system’s architecture is Madisonian. It is not (not usually, at least) a presidential system. Instead, federal government comprises separate but coordinate institutions sharing in authority and in power. Article I of the US Constitution places Congress first in this separated Madisonian order. The symbolism of first place reflects Congress’s abundant richness in authority.

Yet Congress’s authority is limited by recurrent and systematic collective action problems. Those problems spring from Congress’s bicameralism, from its four-party organisation across the two chambers, and from its committee structure. They arise, too from electoral bases of legitimacy: from Senators’ identifications with state interests and cultures, from Representatives’ dependence upon their districts’ majority party voters and party activists for biennial re-election. The collective action problems are exacerbated in the early twenty-first century by ideologically distinct, and typically hostile, Congressional parties; and they are complicated by clashing personal ambitions of legislators. These constraints upon Congress’s authority in turn limit its political effectiveness and, accordingly, its collective capacity to bring about intended effects – in other words, its political power.

Continue reading

The US voter registration system is flawed but election officials are working to address the issues

john-lindback-80x108mary-stegmaier-80x108

Amid allegations of widespread voter fraud from Donald Trump’s presidential campaign, the American public has turned its gaze to the maintenance of voter registration lists. John Lindback and Mary Stegmaier provide an overview of the challenges posed by the US’s decentralized voter registration system, and discuss reforms that are already underway to improve the accuracy of voter rolls.

Officials who administer elections in the United States find themselves playing defence this year. In recent months, Republican presidential nominee Donald Trump has frequently charged that the American elections system is rigged against him. While Trump has offered no concrete evidence of systemic fraud, his repeated claims have created a perception problem. US elections officials have responded by emphasizing that studies do not support his allegations, and by citing the decentralised elections system among the 50 states and the multiple safeguards against hacking voting machines.  But, elections officials will acknowledge that one part of the system – voter registration – is flawed.

The American elections system differs from many other democracies in ways that make maintaining accurate voter registration lists a challenge. The US lacks a tool that most other countries use to determine voter eligibility – a centralised, national registry of citizens. Many countries use their national registries as the basis for voter lists at each voting precinct, which means that citizens are automatically registered to vote. When voters show up at their precinct polling station, they present their national ID card, and if this matches, they are issued the ballot. In contrast, the US has no national registry of American citizens nor is there a universally issued national identification card. Instead, to be eligible to vote, Americans must first take the initiative to register with their state and provide the basic identifying information necessary to determine where they are entitled to cast a ballot. Each state and the District of Columbia maintain its own voter registration rolls – a decentralised system that contrasts with the centralised system used in other countries.  Further, because election law in the US is largely made at the state level, the states vary in their voter ID requirements and registration deadlines. For this election, 10 states and the District of Columbia will allow people to register to vote on Election Day; the rest maintain deadlines that range from a few days to a full month in advance of the election.

Continue reading