Home > News > As a candidate, Trump criticized Obama’s use of executive power. So guess what powers President Trump has been leaning on?
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As a candidate, Trump criticized Obama’s use of executive power. So guess what powers President Trump has been leaning on?

- January 20, 2018
President Trump waves as he walks back to the Oval Office after speaking to the March for Life participants during an event Friday in the Rose Garden. (Jabin Botsford/The Washington Post)

At year’s end, President Trump repeatedly boasted of his “legislative approvals,” claiming to have broken “a record long held” by Harry Truman: “And we beat him on legislative approvals, for which I get no credit.” That might have been because just 97 laws were enacted in 2017. All recent presidents, in their first year of office, signed more bills into law than did Trump, with George H.W. Bush at 240; Bill Clinton, 210; George W. Bush, 108; Barack Obama, 125.

As for Truman? The 80th Congress, which Truman would excoriate as “do nothing,” passed 395 bills into law in 1947 alone.

Picking up the executive powers where Obama left off

Obviously raw numbers matter less than substantive significance. The new Tax Cuts and Jobs Act — though not “the biggest tax cut, the biggest reform of all time” — is clearly consequential. But on the whole, the major policy changes Trump achieved in his first year came mostly from the use of administrative power, not via Congress.

Is that unusual? Under the circumstances, perhaps.

Before becoming president, Trump had railed against using executive orders as substitutes for lawmaking, arguing Obama did so “because he couldn’t get anybody to agree with him.” But Obama turned to his “pen and phone” after Democrats lost their legislative majorities, while Trump’s Republican “anybodies” preside over unified party control of government. Perhaps it is odd, too, for a presidency pledging the “deconstruction of the administrative state” to embrace what Elena Kagan once termed “presidential administration.”

But in terms of presidential history, Trump’s use of the executive toolbox is very much consonant with past practice. And it has achieved quite a bit.

This is not because of Trump’s use of executive orders, though he did issue 55 of them in 2017, the highest figure by a single president in a single year since Bill Clinton’s 57 in 1993. (Clinton and Bush combined for 63 in 2001.) Here too, though, we must look past the numbers to the substance, which varied widely. Consider Executive Order 13186, issued Dec. 8, which approved a new seal for the National Credit Union Administration. Some seem to have been issued as executive orders rather than memos or news releases simply to boost the total count. Others were quite important: for instance, those dealing with regulatory matters. Trump used one early executive order to require that two regulations be rescinded for every new one issued and to impose a regulatory budget on the government aiming at zero net costs.

But executive orders are just one tool in the president’s box. According to my update of figures provided by USA Today’s Gregory Korte, Trump also signed 59 presidential memorandums and issued more than 100 proclamations. Again, these vary in their importance; some are purely symbolic (though I hope you vigorously celebrated “Wright Brothers Day” back on Dec. 17.) Some simply extend deadlines. But others put bureaucratic wheels in progress, especially in prompting — you’ll see a theme here — the reconsideration of regulation. The third version of the “travel ban” was enacted by proclamation. So were Trump’s controversial decisions to relocate the U.S. embassy in Israel to Jerusalem and to scale back the size of two national monuments in Utah.

A statute says whatever the president says it says, right?

That last action highlights another frequent use of executive authority: reading new meaning into old laws, or statutory interpretation. The text of the 1906 Antiquities Act does not specifically include the power to shrink national monuments once they are created. The Trump administration argues that this is inherent in the power to create such designations. Maybe so; like many such claims before it, this will wind up in court. The Obama Justice Department said immigration statutes allowed the president to create the Delayed Action for Childhood Arrivals (DACA) program; the Trump Justice Department says they do not. And herein lies an odd result in relying on executive authority to steer government: It can lead to head-swivelling reversals, as we’ve seen in everything from the rights of transgender students to, most recently, the religious rights of health-care providers.

That’s true not just in regulation, but in courtrooms. Trump lawyers backed away from a number of suits concerning voting rights that the Obama administration had enthusiastically pursued, and they told an appeals panel that the administration would withdraw and replace the pending Clean Power Plan drafted by the Environmental Protection Agency under Obama. But there are also important continuities in the legal claims presidents make: Somehow ignoring my own highly persuasive writing about this subject, both administrations concluded, for example, that the 2001 Authorization for the Use of Military Force extends well beyond its textual reference to those who attacked the United States on Sept. 11, 2001.

In courts — and before ever getting to court — presidents often assert prosecutorial discretion, making choices about how to use limited resources to execute the laws. The Obama administration chose to avoid bringing charges that would set off mandatory minimum sentencing laws, for example, and chose to de-emphasize federal laws banning the use of marijuana in states that had legalized its recreational use. The Trump administration has reversed both decisions. Often such shifts are made by agencies in relatively low-salience ways, as with the Interior Department’s new encouragement of oil exploration and fracking on public lands.

Goodbye to all that regulation

As all this suggests, a consistent theme in an administration not know for consistency has been its dedicated use of the administrative machinery to roll back regulation. Numerous pending agency rules were frozen in January and seem unlikely to be thawed, while Susan Dudley notes that the pace of new regulation has slowed dramatically too. Canceling existing regulations takes much longer, generally — it requires the same level of justification as it took to promulgate the rule in the first place — but the process was jump-started when Congress used the 1996 Congressional Review Act to overturn 15 Obama-era rules.

Will these changes stick? As Adam White recently noted, “If … the Trump administration has declared ‘war’ on the regulatory state, then year two will be the time for the administration to show that it planned not just for the invasion but also for the long-term occupation.” Some of these shifts will be overturned in court. Others will be hampered by the unprecedented plethora of vacancies in the executive agencies — sub-cabinet appointees are among presidents’ chief means of influencing bureaucratic behavior. Others can be revoked at the ballot box: As Trump himself has demonstrated, what one administration puts in place, another may tear asunder.

But it’s worth remembering that the midterm ballot might be just as important. Congress has the power to constrain how various administrations execute the law — by writing clear law. As John Kelly said when he was homeland security secretary, before moving to the White House, “if lawmakers do not like the laws they’ve passed and we are charged to enforce, then they should have the courage and skill to change the laws.” He had a point.

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