Laws put limits on executive orders
Restrictions test White House’s ability to set policy
President Trump’s executive orders sometimes contain far more than meets the eye — and quite often, far less.
After swearing in Jeff Sessions as his new attorney general Thursday, Trump signed three executive orders he said would usher in “a new era of justice.” When the executive orders were released two hours later, they ushered in little more than two new task forces and a slew of reviews, studies and reports.
A handful of Trump’s 26 executive actions — especially on immigration — have had immediate and far-reaching impacts and have generated a barrage of headlines and lawsuits. Most have been rather mundane as Trump’s policy ambitions have run headlong into laws that limit the president’s power to make unilateral policy.
The result are executive orders that don’t do much of anything but set broad goals and ask for recommendations for further action.
“Trump’s executive orders,
many of them, don’t go very far substantively,” said Mark Rozell, the dean of the government school at George Mason University. “But the way they’re being presented showcases that he’s doing something very dramatic, very significant. And that ramps up the partisan rancor over what he’s doing.”
The White House said the orders are a deliberate attempt to color inside the lines. “I think the difference with what President Obama did was stretch the executive order to take actions that had largely been within the realm of Congress and to do things that didn’t allow for prior input,” White House spokesman Sean Spicer said Thursday. “There is a big difference in the context in which those two administrations operated.”
Another difference is that Trump’s executive actions are, by his own admission, often designed to communicate a political message to his supporters. “These executive actions continue to deliver on my campaign promises,” Trump said Thursday before signing orders on crime reduction, drug cartels and protecting police officers.
In Oval Office signing ceremonies, the president has often trumpeted his executive orders as “big.”
Trump said his order on rebuilding the military was “a big statement.” His directive ordering a travel ban was “big stuff.” An executive order on regulations was the “biggest such act that our country has ever seen.”
When he signed an order last Friday outlining a new financial regulatory policy, he said, “Doesn’t get much bigger than that, right?”
In fact, most orders have been presidential small ball, with largely bureaucratic effects couched in legal terms such as “to the maximum extent permitted by law.”
That order on financial regulations, for example, expressed a series of seven non-controversial policy goals such as “prevent (ing) taxpayer-funded bailouts.”
“There’s very little objection- able in these executive orders, because when you’re talking about policy at 35,000 feet, everybody agrees. But laws and rules don’t operate at 35,000 feet,” said Dennis Kelleher of Better Markets, a group that argues for consumer-friendly financial regulation.
Instead, Trump’s orders are often best read between the lines. “These executive orders are political and meant to kind of be a dog whistle to Wall Street’s lobbyists that we’re going to deregulate Wall Street,” Kelleher said. “But the order itself does absolutely nothing but request a study in six months from his as-yet-unconfirmed Treasury secretary.”
A second order on financial regulation was touted as an at- tempt to delay the implementation of the Fiduciary Duty Rule, which requires financial advisers to look out for their clients’ best interests and not just sell financial products with the highest commissions. Because that rule was finalized by the Obama administration, the most immediate thing Trump could do was to order his secretary of Labor to “determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice.”
If so, the administration will have to go through a lengthy process, including fact-finding and public comment, before beginning the process of repealing the rule.
Other executive actions turned out to be more significant than advertised.
In reinstating a policy on Mexico City, Trump did not just reinstate the Reagan-Bush policy of prohibiting global family planning programs from going to groups that promote abortion.
He vastly expanded the policy, which opponents call the “global gag rule,” by applying it to all global health aid by any federal agency.
An order requiring two regulations to be repealed for every new one adopted created annual agency regulatory quotas.
“Trump’s executive orders, many of them, don’t go very far substantively.” Mark Rozell, George Mason University