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As President-elect, Donald Trump had “expressed a near-autocratic view
of executive authority, leading many to worry that he {would} play fast and loose with the laws
that protect Americans’ freedoms. After 9/11, our nation had a taste of this approach, as
President George W. Bush claimed he was not bound by statutes or treaties when acting to protect
the nation. President Barack Obama rejected that view, maintaining that the president, like
everyone else, must obey the law.
“But there is another side to this admirable aspect of Obama’s legacy.
With the notable exception of torture, in restoring the rule of law, he did not actually renounce
Bush’s extraordinarily broad vision of executive power. Instead, Obama sought to put it on firmer
legal footing—sometimes with help from Congress or the courts, sometimes simply by articulating
a legal justification for government actions.
“This choice may prove to have fateful consequences. By buttressing
with legal authority some of the most breathtaking powers asserted under Bush, Obama paradoxically
may have made it easier for Trump to abuse them. . . .
- - -
“. . . The Bush administration’s views of executive authority were
dangerous, not only because they purported to justify conduct that was plainly illegal, but
because they countenanced the exercise of enormous powers over the lives and freedoms of citizens.
In giving these powers legal sanction, the Obama administration, Congress, and the courts were
trusting that presidents would exercise them wisely. That was a risky gamble.
“Going forward, it is not enough to ask whether Trump is obeying
the law. We must also ask whether he is exercising the formidable authorities he {inherited}
in a manner that is consistent with our rights, liberties, and values. And we must begin a
long overdue examination of whether the far-reaching view of executive power that has triumphed
in the post-9/11 era will best serve our constitutional democracy under the Trump administration
and administrations to come.” (Ref. 1)
After assuming office in 2017, Donald Trump continued “the Obama
tradition of using a combination of presidential memorandums and executive orders to guide
the executive branch. Trump has used memorandums to withdraw from the Trans-Pacific Partnership
and reinstate the Mexico City policy banning the use of government funds to non-governmental
organizations that provide reproductive health services overseas. He also signed a series of
executive actions that would advance the Keystone XL and Dakota Access Pipelines.”
(Ref. 2)
“Every U.S. president from George Washington to George W. Bush has
issued presidential executive orders to implement policies without Congress. Several have
issued executive orders that revoked those of former presidents. According to the Congressional
Research Service, a pair of Bush executive orders changed an executive order by predecessor
Bill Clinton that further modified executive orders by Ronald Reagan which he issued to
replace those issued by Jimmy Carter. Obama was able to eliminate these all with a single
executive order.
“Republicans argued that Obama’s executive orders were too plentiful
and try to do too much without the input of the legislative branch. House Republicans even
authorized a six-month task force to study the impact of what they believed to be an unprecedented
use of executive powers in the Obama administration.
“ ‘This threat that the president’s going to run the government with
an ink pen and executive orders, we’ve never had a president with that level of audacity and
that level of contempt for his own oath of office,’ . . . the task force’s chairman, said
on CNN.
“At least numbers-wise— Obama wasn’t the worst offender when it
comes to executive orders . . .
“Using data from the American Presidency Project at the University
of California, Santa Barbara . . . all the U.S. presidents {were ranked} by the number of
executive orders they issued while in office.
“Who issued the most executive orders? At 277 executive orders,
Obama issued fewer executive orders than any two-term president since Grover Cleveland. It’s
important to note that this figure does not include presidential memorandums, which Obama
used to address everything from pay increases to federal employees to sanctions against
North Korea. Obama issued fewer EOs than George W. Bush (291) and Bill Clinton (364) {two
weeks prior to the end of his second term in office}.
- - -
“Of the 10 presidents who’ve issued the most executive orders, a
total of four—FDR, Woodrow Wilson, Harry S. Truman, and Dwight D. Eisenhower—were war-time
presidents. Hoover, who took office the year of the 1929 stock market crash, used executive
orders to put a halt to immigration, create the Veterans’ Administration and Federal Bureau
of Prisons, and give federal loans to struggling farms. One infamous Hoover executive order
dictated what size of paper executive orders should be printed on (8 inches by 12.5 inches).
- - -
“Many scholars said that the number of executive orders is a useless
metric for judging whether a president is abusing his executive powers.
“ ‘A president could issue 1,000 executive orders . . . As long as
they were all based on legitimate statutory or constitutional authority, [the executive orders]
would be fine. Another president could issue just one executive order like the one FDR relied
on to initiate the internment of Japanese Americans during World War II—which was later
supported by Congress but should have been recognized as unconstitutional—and be way out
of line.’
“The days where presidents such as FDR were able to issue 1,000-plus
executive orders and go unchallenged are over. . . . presidents can only issue executive
orders in areas where a current law or the Constitution gave them the nod to do so. Presidents
Truman and Clinton both issued executive orders that the Supreme Court later knocked down for
not fitting such conditions. . . .
- - -
“As it turns out, the limits of executive actions are many, especially
once a president leaves office and political ideas lose popularity. Several of George W. Bush’s
executive orders, including his 2002 secret executive order that authorized NSA warrantless
wiretapping, have been ruled illegal by courts.
“Donald Trump vowed on the campaign trail to undo Obama’s 'bad
executive orders' (i.e., those on guns and immigration) with his own series of executive
orders, and thus far, he appears intent on living up to that promise.
- - -
“. . . Obama’s executive actions on immigration and guns weren’t
actual executive orders. Instead, both were in the form of presidential memorandums. As the
Washington Post pointed out, there’s little legal difference between the two, but a presidential
memorandum tends to only affect one or two federal agencies and are often technical. Executive
orders tend to be larger in scope, addressing several agencies or the entire federal government,
and have a substantial effect on the public. Similar to executive orders, presidential
memorandums don’t expire when the subsequent president takes office.”
(Ref. 3)
In early July 2019, President Donald Trump announced he would take
executive action to include a citizenship question on the 2020 Census. Almost
immediately, he reversed himself and said the citizenship question would not be added to 2020
census questionnaire. He had previously said that he was “very seriously” considering an
executive order to add the question.
“But wait. Executive actions? Executive orders? What’s the difference?
Is there a difference?
“It’s easy to mistake the two as synonyms — after all, the words
themselves are nearly identical — but a hefty legal difference divides them.
- - -
“Executive orders are published in the Federal Register and are
legally binding. They give presidents the power to create unilateral directives, though they
can be overturned if a court rules they’re unconstitutional. Executive orders remain in place
until rescinded or modified by a president, reversed by a court or nullified by legislation.
“Executive actions, by contrast, bear little weight. They’re not
published in the Federal Register and aren’t subject to legal review. But these so-called
threats-to-orders often draw reactions as sharp as the responses to orders themselves.
- - -
“Executive orders — the powerful ones — date back to the first days of
George Washington’s presidency. The first executive orders the U.S. State Department officially
recorded were Abraham Lincoln’s. Notably, the Emancipation Proclamation was issued by executive
order.
“Executive actions don’t share that lengthy history. They didn't become
common until the 2000s, when they were political fodder for President Barack Obama, who issued
dozens of the statements during his administration.
“Obama’s critics say he issued a record number of executive orders when,
in reality, his executive order volume aligned with his predecessors. He signed 276 orders during
his eight years in office, according to the Federal Register . . . George W. Bush issued 291
during his two terms; Bill Clinton issued 254.
“During just his first year in office, Trump announced 55 executive
orders, according to the Federal Register. He has issued a total of 114 during his two and a half
years in the West Wing. . . .
“{If Trump takes} executive action on the census question, Trump will
mimic the not-quite-orders practice his predecessor popularized. And unless his executive action
grandstanding grows to an official order, it won't change much regarding the contested citizenship
question.” (Ref. 4)
Upon assuming office in early 2017, Donald Trump issued a long and list
“of executive orders, hoping to fulfill a number of his campaign promises.
“In his first three weeks alone, Trump signed a burst of orders to undo
many of President Barack Obama's policies. . . .” (Ref. 2)
The number of executive orders Trump issued during his first 100 days
exceeded that of any other recent president.
It is claimed that Donald Trump is warping national policy to serve his
own interests. He supposedly believes that his presidency is in jeopardy if he doesn’t fulfil his
signature promise of building a wall along the U.S. border with Mexico. To fulfil his election
campaign promise, he has threatened to invoke a state of emergency so he can direct the U.S.
military to build his wall.
It appears that Trump “admires autocrats who can just get the job done.
Rule by decree is the first stepping stone to transforming democracy into dictatorship. Declaring
a state of emergency would be Trump’s desperate attempt to hold on to and ultimately expand the
power that is slipping through his fingers in the aftermath of the midterm elections.
“Rule by decree has an undistinguished, undemocratic parentage. In the
Weimar Republic of the 1920s and 1930s, the German constitution contained the controversial
article 48, which granted the president the right to rule by decree in the case of a national
emergency. German leaders invoked this right several times between 1930 and 1933.
“But the most momentous decree came in the wake of the Reichstag fire,
six days before German elections in 1933. Hitler, already appointed chancellor at that point,
persuaded German President Paul von Hindenburg to pass the Reichstag Fire Decree. No doubt
inspired by Benito Mussolini and his use of emergency powers to establish fascism in Italy in
the 1920s, the Nazis then took full advantage the authority granted them by Hindenburg’s decree
to remake Germany into a dictatorship.
“Modern democracies retain a certain echo of this tradition of decrees.
In the United States, for instance, presidents can issue executive orders without having to
declare a state of emergency.
“Trump has already shown a marked preference for this style of governance.
During his first two years in office, he issued 91 executive orders – 55 in 2017 and 36 in 2018.
By contrast, Obama issued an average of 35 per year, George W. Bush 36. Many of Trump’s executive
orders – such as withdrawing from the Iran nuclear agreement, the Paris climate accord, and the
Trans-Pacific Partnership trade deal – place Trump in opposition to international and national
consensus.
“Trump has also used his executive privilege to take bold stands in
foreign policy that diverge, in some cases sharply, from the consensus of the policymaking
community. He defied the advice of his advisors to sit down one-on-one with North Korea’s
Kim Jong Un. Most recently, he announced U.S. military withdrawal from Syria, generating
considerable pushback from the foreign policy mandarin class. Like a stopped clock, an erratic
commander-in-chief can be right once in a while.
“These steps are authoritative but not authoritarian. Executive orders
aren’t out-and-out decrees – the courts can say no, as they’ve done several times in the Trump era.
Trump’s freewheeling foreign policy moves also face certain constraints. A deal with North Korea
would require congressional consent. His decision to remove troops from Syria has already been
modified by members of his own administration, with National Security Advisor John Bolton
stipulating certain conditions that will delay or even nullify withdrawal.
“But Trump’s threat to declare a state of emergency at the border
would up the ante considerably. True, presidents frequently declare states of emergency under
the National Emergencies Act. Both George W. Bush and Barack Obama declared a dozen or so each
(most of them still in effect). But these declarations pertained almost exclusively to war
or terrorism.
“Trump’s attempt to circumvent the congressional standoff over his wall
is a different matter altogether.
“. . . {The} president can’t use the military to execute his plan.
In the wake of the Katrina disaster, Congress created an exemption to the general rule prohibiting
the military from enforcing domestic laws. The Obama administration then rolled back that particular
exemption.
“{supposedly,} if Trump attempts to go forward with his plan anyway,
Congress would block him. . . .
“Moreover, Trump’s ‘wall’ doesn’t qualify as an urgent response to a
crisis. There is no state of emergency at the border. There have been a few protests, on each
side of the border, most recently around the closing of a shelter in Tijuana. But that hardly
qualifies as a clear and present danger. The number of illegal border crossings fell to a historic
low in 2017, according to the Department of Homeland Security. Nor did the situation change in
2018.
“The Trump administration has claimed that 4,000 known or suspected
terrorists were stopped at the border in 2018. Not true: The vast majority of those people on
the list of suspected terrorists were stopped at airports around the world. In the first half
of 2018, only six non-Americans on the list were stopped at the southern border.
- - -
“For those who believe that the American system of checks and balances
will prevent Trump from getting his way, think again. . . . the American system has its own
equivalent of Article 48 of the Weimar constitution:
“UNKNOWN TO MOST AMERICANS, A PARALLEL LEGAL REGIME ALLOWS THE PRESIDENT TO SIDESTEP MANY OF
THE CONSTRAINTS THAT NORMALLY APPLY. THE MOMENT THE PRESIDENT DECLARES A ‘NATIONAL EMERGENCY’
— A DECISION THAT IS ENTIRELY WITHIN HIS DISCRETION — MORE THAN 100 SPECIAL PROVISIONS BECOME
AVAILABLE TO HIM. WHILE MANY OF THESE TEE UP REASONABLE RESPONSES TO GENUINE EMERGENCIES,
SOME APPEAR DANGEROUSLY SUITED TO A LEADER BENT ON AMASSING OR RETAINING POWER. FOR INSTANCE,
THE PRESIDENT CAN, WITH THE FLICK OF HIS PEN, ACTIVATE LAWS ALLOWING HIM TO SHUT DOWN MANY
KINDS OF ELECTRONIC COMMUNICATIONS INSIDE THE UNITED STATES OR FREEZE AMERICANS’
BANK ACCOUNTS.
“. . . Trump could also use the Insurrection Act to deploy U.S.
troops on the streets of American cities. So, imagine that protests spring up around the
country against Trump’s declaration of a national emergency. That could in turn serve as
the justification for Trump sending in troops to suppress a ‘threat to the public order.’
“In this way, the United States could go from a state of emergency
at the border to martial law throughout the country.
“Trump’s public support remains low and his political influence is
on the decline. He’s surrounded almost exclusively now by advisors who favor his most
autocratic impulses. It’s not inconceivable that Trump will use his standoff with Congress
over the border wall as his Reichstag moment.
“Over a decade ago, in another political era altogether, the Los
Angeles Times charged in an editorial that ruling by decree was not democratic. This would
seem to be a no-brainer. But one prominent reader disagreed. He wrote, ‘This is not the mark
of dictatorial rule but rather a new way of envisioning popular participation and democracy.’
“The writer was the Venezuelan ambassador to the United States,
trying to defend his boss, Hugo Chavez, from the charge that he was governing like a dictator.
{Is this} the playbook that Trump is reading{?} {Is this} the company that Trump keeps{?}
{Is this} the clear and present danger that America now faces{?}” (Ref. 5)
“President Donald Trump has declared that he wants to end birthright
citizenship with an executive order. The first clause in the 14th amendment states that a person
born in the United States is a citizen.
“But the president says this should not apply to the children of
undocumented or illegal immigrants. . . . President Trump states that he has the power
to eradicate birthright citizenship and does not need Congress’ permission to do it.
“The American Civil Liberties Union argued that a president ‘can’t
erase the Constitution with an executive order’ and accused President Trump of trying to ‘fan
the flames of anti-immigrant hatred.’ House Speaker Paul Ryan was among the Republican lawmakers
who have stated that the president ‘cannot end birthright citizenship with an executive order.’
- - -
“. . . in general, executive orders are not necessarily set in stone.
There are steps Congress can take to overturn an order from the executive branch.
- - -
“The legislative branch has the ability to override an order from the
top executive, but it would be a lengthy and tricky process. As explained by the National
Constitution Center in Philadelphia, Congress can pass a bill to make the order obsolete.
Both the House and the Senate must vote to approve it.
“It’s safe to assume the bill would never make it past the president’s
desk. He has the authority to reject any bill Congress sends over for his signature. Congress
could then override the president’s veto.
“Here’s a caveat about overturning a presidential veto: it’s happened
very rarely since the founding of the United States. If Congress sends a bill to the president
for his signature, and he vetoes it, the legislative branch can override his decision with a
two-thirds majority vote in both the House and the Senate. The bill can then become a law without
the president’s approval.
- - -
“The Center for Legislative Archives looked at 1,484 regular vetoes
by presidents up to 2004. Out of those, Congress overturned just 106 of them. That’s a rate of
only 7 percent.
“Presidents have been issuing executive orders since the founding of
the United States. But interestingly, the Constitution does not explicitly grant this power.
According to the Congressional Research Service, ‘Executive orders,
presidential memoranda, and proclamations are used extensively by Presidents to achieve policy
goals, set uniform standards for managing the executive branch, or outline a policy view
intended to influence the behavior of private citizens. The U.S. Constitution does not define
these presidential instruments and does not explicitly vest the President with the authority
to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential
power.’
- - -
“Every president of the United States has had the power to sign
executive orders. President Franklin D. Roosevelt signed the largest number of them during
his time in office: 3,721. (However, it is worth pointing out that F.D.R. is the only president
in U.S. history to serve three full terms in the White House). President Wilson is second on
the list, with 1,803 executive orders.
“There is precedent for an executive order to be carried out even
when it has been deemed unconstitutional. In 1861, at the start of the Civil War, President
Lincoln suspended habeas corpus, which guarantees the right to a fair trial. He argued this
was in his right because Article 1, Section 9 of the Constitution stipulates as such: ‘The
privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion and invasion the public safety may require it.’
“The chief justice of the Supreme Court at the time, Roger Taney,
ruled that Lincoln’s executive order was unconstitutional. But the Union army ignored the
chief justice. And Congress did not challenge it either, so the order stood.
“Other controversial executive orders included President Roosevelt’s
decision to put Japanese-Americans into internment camps during World War II; President
Eisenhower’s call to enforce school desegregation in Little Rock by federalizing the Arkansas
National Guard; and Roosevelt’s establishment of the Works Progress Administration in
1935.” (Ref. 6)
A more recent example of the probable misuse of the practice of
executive orders came in 2018 when President Trump issued executive orders aimed at reversing
civil service laws and long-standing precedents regarding federal employees and their
unions.
President Donald Trump issued executive orders trashing the nation’s
two million federal workers. As a result, “Thirteen . . . unions went to court on
June 13 {2018} to sue to overturn them, and 21 House Republicans wrote to Trump to ask him
to dump his own edicts. [emphasis mine]
- - -
“Trump’s three orders . . . would let bosses judge workers
unsatisfactory and give them only 30 days to shape up or be fired, would order federal
worker union reps to meet with bosses and solve grievances or bargain contracts on their
own time and their own dime, and would ‘streamline’ those contracts by constricting what
the unions can bargain about.
“One {executive order would repeal} the civil service law that
orders government pay to federal union shop stewards for ‘official time’ spent handling
bargaining and grievances.
“The two largest federal worker unions, the Government Employees
(AFGE) and the Treasury Employees (NTEU), previously challenged two Trump orders in U.S.
District Court in D.C. The 13 others, including the Teamsters, the Seafarers, the Machinists
and the National Education Association, represent 322,000 workers combined. They want the
judges to declare all three orders illegal.
“ ‘Defendant Trump has no authority to issue these executive orders
either from the Constitution or from Congress,’ the unions’ latest lawsuit says.‘To the extent
the president has such authority, portions of the orders are plainly unlawful, as they conflict
with – or seek to impermissibly rewrite – portions of federal civil service law, without a
congressional OK.'
“ ‘This is a democracy, not a monarchy with a king who can
unilaterally eliminate the rights of Congress and federal works,’ said {the}
Secretary-Treasurer of the Professional and Technical Engineers, one of the 13 unions
in the new Federal Workers Alliance.
- - -
“. . . lawmakers said Trump’s orders would leave federal workers
open to discrimination, favoritism, unfair treatment and sexual harassment on the job.”
(Ref. 7)
As it has turned out, it didn’t take the courts very long to reject
Trump’s attempts to turn back the clock on long-standing laws and precedents concerning unions
and federal employees. “Federal labor organizations won a major battle against President Donald
Trump with a U.S. District Court ruling overturning major sections of executive orders that
substantially undermined government unions.” (Ref. 8)
As of this date, the final outcome in this fight has yet to be determined.
Trump’s attempt to add a citizenship question to the U.S. census in
2020 was rejected by the Supreme Court. Some consider Trump’s call for the citizenship question
as a ploy to rig future elections in favor of Republicans. Supposedly, a 2015 study concluded
that adding a citizenship question to the census would result in allowing Republicans to draft
gerrymandered maps unfavorable to Democrats.
In ruling against the inclusion of the citizen question of the 2020
census form, the Supreme Court decided that the administration was lying about its rationale
for including the citizenship question on the census.
But that didn’t matter to Trump. He immediately instructed his
Attorney General to come up with another rationale for the inclusion of the question. And
if that fails, Trump will try to bypass the Supreme Court — and the constitution — simply
by issuing an executive order.
It’s not the first time that Trump has ruled by decree. He has
issued more than 100 executive orders through the middle of May. Many are uncontroversial
or just ceremonial. Others, like his Muslim travel ban or the declaration of a state of
emergency at the border to get his border wall funded, have provoked fierce
opposition.[9]
“It’s one thing to try and bypass Congress. Other presidents have
done that. It’s another to try and bypass the Supreme Court in such a blatant manner. That
could very well throw the country into a constitutional crisis. Such a crisis would not be
an unintended consequence of Trump’s attempt to create a semi-permanent Republican majority.
It’s a deliberate effort to scupper the checks and balances of democracy.”
(Ref. 9)
Executive orders have their place in America’s form of government. They
can be necessary in times of extreme emergency. They can even be used when not constitutionally
allowed if the very existence of the country is threatened or when there is no time to proceed
along the constitutionally defined path. But, they should not used simply as
means to bypass our constitutional form of government so some spoiled politician can get his way
when no real emergency exists.
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References:
- The Dangerous Powers Obama Left in Trump’s Hands, Elizabeth Goitein,
Fortune,
18 January 2017.
- Here's the Full List of Donald Trump's Executive Orders, Avalon Zoppo,
Amanda Proença Santos, Jackson Hudgins, NBC News, 17 October 2017.
- The number of executive orders by every U.S. president, Amrita Khalid,
The Daily Dot,
7 March 2017.
- Executive action vs. executive order: What's the difference?, Alexis Shanes,
northjersey.com,
11 July 2019.
- Will Trump rule by decree?, John Feffer, Nation of Change,
8 January 2019.
- Can Congress Overturn an Executive Order by the President?,
heavy.com,
1 November 2018.
- Opposition to Trump anti-worker exec orders mounts, Mark Gruenberg,
People’s World,
15 June 2018.
- Questions remain after court rejects action by Trump against federal unions.
Will he obey?,
Joe Davidson, The Washington Post, 29 August 2018.
- Pyongyang on the Potomac, counterpunch.com,
John Feefer, 15 July 2019.
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