Every President is attracted by the idea of making public policy by unilaterally issuing an executive order – sounds easy and attractive. Get someone to draft it, add your signature, and out it goes. No need to spend time negotiating with lawmakers. The record, however, is not that reassuring, even when Presidents claim that national security requires prompt action.
Recall what happened in 1952 when President Harry Truman issued an executive order to seize steel mills to prosecute the war in Korea. He was promptly rebuked by a district court judge and the Supreme Court.
For some contemporary examples, think of President Barack Obama on his second full day in office issuing an executive order to close Guantánamo within a year. In that manner he hoped to fulfill a campaign pledge. Neither Obama or his legal advisers faced a simple fact: detainees could not be moved to facilities in the United States unless the administration received funds for that purpose. Public policy needed action by both branches. The money never came. Although the population of detainees declined substantially, the facility remained open when Obama left office eight years later.
In his public statements, Obama often claimed authority to act alone. Speaking at the University of Colorado in Denver on 26 October, 2011, he announced: “Last month, when I addressed a joint session of Congress about our jobs crisis, I said I intend to do everything in my power right now to act on behalf of the American people, with or without Congress. We can’t wait for Congress to do its job. So where they won’t act, I will.” This type of rhetoric might have pleased audiences but had nothing to do with the need for legislation.
In his State of the Union address on 28 January, 2014, Obama pledged that in the coming weeks he would issue “an Executive order requiring Federal contractors to pay their federally funded employees a fair wage of at least 10 dollars and 10 cents an hour. Because if you cook our troops’ meals or wash their dishes, you should not have to live in poverty.” In testimony before the Senate Judiciary Committee shortly after Obama’s address, Attorney General Eric Holder agreed that Obama possessed constitutional authority to act alone. Could Obama by his own powers raise the minimum wage of federal contractors? Holder told the committee: “I think that there’s a constitutional basis for it. And given what the president’s responsibility is in running the executive branch, I think that there is an inherent power there for him to act in the way that he has.”
Both Obama and Holder ignored the fact that Congress had passed legislation providing Presidents some authority over federal contractors. Obama would therefore be acting in part on the basis of statutory authority. That reality became clear a month later, on 12 February, when Obama issued the executive order. The first paragraph identified authority under the Federal Property and Administrative Services Act, codified at Title 40, Section 101. Section 1 of the order raised the hourly minimum paid by federal contractors to $10.10. Where would the money come from? There was no great mystery. Funds had to come from Congress. Section 7 of the order conceded that point: “This order shall be implemented consistent with applicable law and subject to the availability of appropriations.”
It is true that an executive order issued by one President can be repealed or altered by a successor. Consider the executive order issued by President Obama on 22 January, 2009, prohibiting the coercive interrogations authorized by the Bush II administration, including waterboarding. Obama’s executive order sought to “ensure compliance with the treaty obligations of the United States, including the Geneva Conventions.” In so acting, Obama revoked an executive order issued by President Bush on 20 July, 2007. Under Obama’s order, detainees “shall not be subjected to any interrogation technique” that is not authorized by and listed in the Army Field Manual.”
During his presidential campaign, Trump promised to revive waterboarding and other coercive methods of interrogation. If he issued an executive order revoking the one issued by Obama and authorized waterboarding and other terms of torture, he would collide with his selections of Mike Pompeo as CIA Director and James Mattis as Secretary of Defense, who publicly announced their determination to comply with existing law, including specifications in the Army Field Manual.
Trump would also provoke direct confrontations with many US allies who have specifically denounced the interrogation methods used by the Bush administration. Trump’s desire to act unilaterally would invite many serious and costly downsides. His executive order for a travel ban imposed on seven Muslim-majority countries was criticized for a drafting process that excluded key officials, resulting in various changes and explanations after its release. A number of federal courts have placed limits on the administration’s policy.
Featured image credit: Fountain Pen by Andrys. CC0 Public Domain by Pixabay.