Governing by Executive Order: As Obama goes, so goes Trump

This was the week of  the Trump executive order presidency.  Frustrated with his own inability to

govern and work with his Republican Congress, Trump used executive orders to dismantle the Affordable Care Act (Obamacare) regarding contraception, minimum coverage for health plans, and subsidies for the poor.  If the Obama presidency is precedent, it is not clear that Trump has the authority to do all this.  Instead, one legacy of Obama may be passing on to Trump a weaker presidency when it comes to the use of executive orders.

As candidate, Donald Trump criticized Barack Obama for governing by executive order, bypassing Congress and instead leading by fiat. Now that Trump is president executive orders look good to him. Democrats lauded Obama’s efforts to do an end run around Congress, which Republicans condemned. Now the reverse is the case.

Consider first who has used more executive orders.  According to CNN, by October 11, into his first year in office, Obama signed 26 executive orders–the fewest of any president going back to Eisenhower.  Trump has already signed 49–the most since Lyndon Johnson and on pace to be more than any president since Franklin Roosevelt.  Trump has become the executive order president.  For his supporters this is no doubt good–it is a sign of taking charge and being a leader.  But the criticisms that applied to Obama apply to Trump–it is side stepping the Constitution or at the least,  it is illegal or demonstrates contempt for the concepts of checks and balances and separation of powers.

At least this is what many Republican attorney generals thought when Obama was president.  Presidents have no inherent powers.  Their authority derives from either Article II or the Constitution or what Congress has delegated to them via the Administrative Procedures Act and other laws.  Executive orders in many cases carry the force of law and once issued, especially if they go through  a rule making process,  cannot easily be repealed without going though a series of procedures.  When Obama issued executive orders regarding immigration and rules for power plants, Republicans successfully challenged them in court with decisions that limited presidents going forward.  Among the principles these lawsuits established  is that presidents may not use executive orders to sidestep laws made by Congress.

This may exactly be what is happening now with Trump. Unable to get Congress to do his bidding when it comes to repealing Obamacare, he is governing by edict.  In some cases the orders seek to alter Obama executive orders, in others they go against congressionally-authorized law.  But in both cases, Trump  needs to do more than issue an order.  No president, including Trump, can say  “Make it so” like captain Picard from Star Trek, and make it happen.  Already Democratic attorney generals are using the same tactics against Trump their Republican counterparts used against Obama.  Time will tell if the legal results will be the same.