Some Executive Orders More Powerful Than Others

Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...

By Cheryl Bolen

President Donald Trump has, like all modern presidents, issued a flurry of executive orders in his first days in office, some of which can be surprisingly effective even without congressional involvement, a governance scholar told Bloomberg BNA.

“When this issue arose a few years ago, as President [Barack] Obama wrapped up his use of executive orders [on immigration], I underestimated the extent to which they could be effective in the absence of legislation,” said William Galston, chairman of the Brookings Institution’s Governance Studies Program.

Since Trump’s inauguration on Jan. 20, he has issued four executive orders and postponed a signing scheduled for Jan. 26. By comparison, former President Barack Obama issued five executive orders in his first calendar week in office.

It is unclear whether one of Trump’s more controversial orders—to build a wall along the U.S.-Mexico border—will be successful because Congress must act to approve appropriations. But another order on immigration takes effect immediately.

Memorandums Enforceable

In addition to executive orders, Trump has issued eight presidential memorandums to date, which are different from executive orders mostly in style, rather than substance.

The Constitution does not define executive orders or proclamations, nor does it explicitly vest the president with the authority to issue them, according to the Congressional Research Service.

“Nonetheless, such orders are accepted as an inherent aspect of presidential power, and, if based on appropriate authority, they have the force and effect of law,” the CRS said.

In addition, presidents often issue presidential memorandums and all three instruments can be used to direct and govern the actions of federal officials and agencies, the CRS said. If issued under a valid claim of authority and published, all three may have the force and effect of law, it said.

Executive orders must be published in the Federal Register; memorandums are published only when the president determines they have general applicability and legal effect, CRS said.

Some More Powerful Than Others

When it comes to efficacy, some executive orders are more powerful than others, Galston said.

The executive branch has the power to interpret existing legislation, and that interpretation can have a substantial bearing on how the law is enforced, Galston said. Further, under the prevailing Chevron legal doctrine, executive branch interpretations of existing law must be given considerable deference by the courts, he said.

“If there’s a statute on the books and its effect on the ground depends on its interpretation in Washington, and that interpretation changes, then you don’t need Congress,” Galston said. “And in the area of immigration, [Obama’s executive order] had a major impact.”

On the other hand, executive orders that require the redeployment of new resources or new government authority clearly need Congress, Galston said.

“Can President Trump simply say, ‘Let there be a wall?’ No he can’t,” Galston said. Because if there is anything fundamental to the structure of the Constitution, it’s that Congress is responsible for appropriations, he said.

Pen and Phone Strategy

Obama, frustrated by congressional inaction and obstruction, was frequently excoriated by congressional Republicans for his use of executive orders, which they called an irresponsible “bypass” of their constitutional role as lawmakers.

"[W]herever I can act on my own, without Congress, by using my pen to take executive actions, or picking up the phone and rallying folks around a common cause, that’s what I’m going to do,” Obama said in February 2014.

Still, by the conclusion of his presidency, Obama had averaged fewer executive orders per year in office than any U.S. president in 120 years, according to the Pew Research Center.

Obama issued 277 executive orders during his eight years in office, or 35 per year, which is the lowest average since President Grover Cleveland, according to a post by the center.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Try Environment & Energy Report