Trump hit the links for the ninth time since taking office seven weeks ago. Already Trump has set an aggressive time-off schedule that has many Democrats perturbed at the vacationing Executive.
Republicans were outraged by Obama’s trips to Hawaii, just as Democrats now highlight the hypocrisy by Trump’s $3 million a pop trips to Florida. Republicans were wrong to criticize Obama back then just as Democrats are wrong to be frustrated by Trump’s trips now.
Every moment the President is vacationing is a minute not governing. And we have had too much governing from the White House.
Donald Trump is on pace to match the number of executive orders signed into law by President Obama in his first term. By mid-March of the first year of his first term, Obama had signed 18; Trump has signed 16. The party on the outside of the White House has always demonized the President for acting like a monarch, while the party in power often praises the expediency of particular policy goals. This year is no different.
Many on the right praise President Trump’s executive orders on police and immigration.
Many on the left have had their prior conception of Mr. Trump reinforced – that he’s a totalitarian promoting the agenda of Rust Belt racists and xenophobes.
Without analyzing any of his executive orders on their merits, the role of Executive Orders in American society needs to be addressed – for its myths, to battle the hysteria, and to re-position justifiable concern over its potential.
As they stand to date, Executives Orders are not dangerous, but have the potential to be lethal to democracy.
For argument’s sake and because constitutional scholars, even, are torn about their bedrock in the actual Constitution, it is helpful to see from where this Presidential power came. There is no constitutional basis in Article II of the Constitution from where Executive Orders originally derived. They have been an executive amalgam on the back of constitutional tradition. The executive order arose naturally as a way to govern in crisis as a sort of stopgap for when Congress was unable to speak on the issue. Both President Washington and President Lincoln signed executive orders when Congress was out of session to further what they perceived was in the country’s best interest.
Some presidents have been very active with executive orders. FDR signed a whopping 3,522 executive orders during his presidency. By comparison, from Nixon to Obama, American presidents have signed an average of over 270 executive orders.
The substance of these orders varies from formal proclamations to pseudo-lawmaking powers not traditionally cabined in the executive. The vast majority are important, yet harmless impositions by the president, from creating task forces to presidential focus groups ranging from equality issues to drunk driving.
Some have been more consequential. In 1861, by executive order, President Lincoln suspended the writ of habeas corpus during the Civil War. During World War II, President Roosevelt handed down Executive Order 9066, which created Japanese internment camps in the U.S. In 2002, President Bush authorized advanced NSA capabilities allowing the intelligence agency to eavesdrop on citizen’s phone calls.
More recently, in the face of a Republican Congress, President Obama took to executive orders to further his political agenda signing into law alterations to climate change policy, a federal minimum wage increase, authorizing Iran sanctions, and several immigration changes.
Throughout American history, either Congress or the judiciary, with the backdrop of a more intangible policing mechanism of general public opinion, has checked executive action. Congress acted to override Bush’s surveillance policies. The judiciary found against President Truman in the Youngstown Sheet & Tube Co. v. Sawyer holding that his executive order to seize and operate many steel mills during the Korean War was beyond the scope of his power because Congress had not given the president this power. The system worked how it was made to work.
More deeply, however, is danger in the system when public opinion through the mechanisms of government drives the presidency into despotism.
In his concurring opinion, Justice Jackson laid out a framework for analyzing executive orders from where the president possesses the most to least authority. When a president acts with the express or implied will of Congress, power is at its maximum. When a president acts where Congress has not spoken, power is at an intermediary threshold. When the president’s order is incompatible with the express or implied will of Congress, power is tenuous, but permissible until otherwise usurped by Congress or the judiciary.
The lower circumstances of power don’t warrant examination because they serve the purpose of a democratic republic with appropriate checks and service to balanced government. However, at the maxim, presidential power has the ability to go far beyond what many now perceive as the role of the American Presidency.
For example, in the case of President Trump, a dramatic public opinion and a judicial stay tempered executive action. Throughout history, Congress on multiple occasions has spoken to endorse, upend, or augment presidential executive orders. The system works because it was checked by adverse interest and when a president recognizes the limits of office. However, when presidents break tradition or when there is a unity of interest in the branches of government, executive orders can be devastating to democracy.
Articles appearing in USA Today, among others, focus on the hypocritical treatment of executive orders by other parties: what was executive overreach under Trump was acceptable under Obama and vice versa. But they miss the larger point.
Imagine if a president or political ideology were ever to control the triumvirate: the Presidency, the judiciary, and Congress. Executive orders could be leveled to streamline ideology that the majority coalesces to or even endorses. Might makes right, as they say.
Congress could expressly or impliedly endorse particular presidential action. The judiciary would find difficulty in overruling this endorsement and a dictatorship would naturally have arose out of democracy, as Plato once quipped.
It shouldn’t surprise anyone how we got here either. We have seen the nation become more divided, at least rhetorically. One doesn’t have to look far to see evidence of post-truth politics and the funny way that ideas now have of denouncing, sometimes violently, other ideas in the public square. At times, it seems as though both sides of the aisle are content with the executive using the stroke of a pen to create law of the land because we are so desperate for particular policy outcomes. Only when we don’t control the presidency do we cry foul, but are happy to rest on the largesse of its power when we perceive ourselves in control.
In this impatience, executive orders toe the fragile line between total anarchy and complete autocracy. At their lowest rung, they provide a tool to save government from chaos when Congress can’t speak, but at their maxim, a mere stepping-stone to despotism. Endorsement from the roaring masses only fuels its ability and consequences.
The need for a well-checked presidency is not a partisan one – it’s an American one. It’s calling for a humble president who knows and respects the boundaries of the Oval. It’s demanding Congress speak on issues first (if at all) and the presidency only fill gaps in emergencies or to Article II limits. It’s asking for an impartial judiciary, one removed from partisanship that interprets the legal framework to curb the power of the president or ideological majority. It’s allowing our system of government to advocate on your behalf rather than being content with unilateral lawmaking. It’s being patient in the face of a frustratingly slow democratic process while unfairness and injustice still exist.
American Presidents sit vested with the power of an autocrat, but only become tyrants when we let our political desires run roughshod over our willingness to wait.
If President Trump’s trips to Florida have an estimated cost of $3 million, we each foot about $0.02 in taxes to pay for the trip. I’m happy to pay my $10 or so in taxes for the next four years of trips for this President and future Presidents to vacation more and govern less.