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Most of Trump’s executive orders aren’t actually executive orders. Here’s why that matters.

- January 30, 2017

The flood of executive directives flowing from the White House — or from other photogenic signing spots — was a notable part of President Donald Trump’s first week in office.

There will be plenty to analyze as the administration continues — many more such directives have been promised, and rumored. But a preliminary primer seems in order.

Some of the actions taken would have been tempting to any president — for instance, the freeze on the prior administration’s regulatory agenda. Others have been partisan constants — such as the renewal of the so-called Mexico City Policy, called by its opponents the “global gag rule.”

Most, though, have checked off President Trump’s most salient campaign promises — complete with press release-friendly “purpose” sections making extravagant claims not usually found in executive orders. “Sanctuary jurisdictions,” for example, are said to “have caused immeasurable harm to the American people and to the very fabric of our Republic.” The order cracking down on refugees starts with three long paragraphs seeking to blame the 9/11 attacks on the visa process. And crafting an emergency budget amendment for military readiness does not require a formal signing ceremony — a phone call to the Office of Management and Budget would do the trick.

Do these executive actions actually do everything that Trump claims they do?

Thus one role of these directives is to permit Trump to take a public, symbolic stand: For instance, signaling that refugees and oppressive environmental regulations and the Affordable Care Act are bad, while new factories and American-made steel pipelines and big border walls are good.

But another goal, of course, is to spur substantive change. What might these executive actions achieve, in the agencies and (literally) in and on the ground?

The answer varies by the kind of authority each directive assumes. Withdrawing from a trade pact that was not in effect is easy enough. But anything needing new appropriations will in turn need legislative action. There is probably some money in the Homeland Security budget that can be reprogrammed toward construction of a few feet of wall between the United States and Mexico, for instance. But to build more than that — or to hire the 5,000 new Border Patrol agents or 10,000 immigration enforcement officers also “ordered” by the president — Congress will have to approve funding.

Other orders also rely on other actors. However eager Trump may be to fast-track the Keystone XL oil pipeline, for instance, that project still faces state-level hurdles. Efforts to use federal money to browbeat states and localities probably will run up against Supreme Court decisions protecting federalism — law professor Ilya Somin, for example, recently argued that the “sanctuary city” order is likely to be found unconstitutional. Friday’s order on visas, immigrants and refugees has already been challenged in court, and part of it temporarily suspended.

Still other of Trump’s directives create a new process, rather than a new outcome. For instance, the order “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects” puts the chair of the White House’s Council on Environmental Quality (CEQ) in charge of identifying such projects and working with departments to speed up permitting. It’s safe to say CEQ does not have a reputation as a bureaucratic powerhouse, and there’s no guarantee that its chair — who hasn’t yet been named in any case — will have the clout needed to browbeat Cabinet secretaries.

More generally, several of the memos ask departments to review existing laws and regulations and to produce new plans. These sorts of assigned tasks can easily sink to the bottom of a new secretary’s long to-do list without sustained White House attention.

Issuing orders without consultation may undermine implementation

The fact that many of the directives issued seem to have been drafted without input from the departments they affect will probably not help with their implementation. Normally executive orders go through a central clearance process managed by OMB. This is both to produce buy-in from the wider bureaucracy, and to protect the president against unintended policy consequences (and/or from the effects of sloppy or misleading language.)

Orders are also supposed to be reviewed by the Justice Department for “form and legality,” ensuring that they are consistent with existing law and presidential authority.

Still, presidential direction matters

As a result, some observers have dismissed the directives as “memos to his advisers.”  Yet any presidential signal to the bureaucracy needs to be taken seriously. This is especially true where presidents use such tools to inform those advisers how vagueness in statutory language should be interpreted.

For example, President Barack Obama used the discretion he read in the Immigration and Nationality Act to try to shield specific groups from deportation. Trump now seeks to use the same principle to broaden deportation priorities, expanding the definition of criminality and giving immigration officials wider latitude in assessing who counts as “a risk to public safety or national security.”  The wall order goes back to a 2006 law authorizing border security measures (although not everyone sees building a wall as legally “necessary and appropriate” under that statute.)

It is less clear what specific actions department heads will or will not be able to take under the order urging them to undermine the Affordable Care Act. Even so, the order makes clear the direction of action the president expects.

They’re not all executive orders. They’re mostly presidential memoranda.

One last point — on vocabulary. Though nearly every headline (and White House staffer for that matter) has trumpeted a spate of “executive orders,” so far these directives are mostly not executive orders but “presidential memoranda.”

Does this matter? Yes. Executive orders (EOs) and presidential memoranda (PMs) have slightly different purposes, though they blend together at the margins and have equivalent legal effect.

Orders do just that: they order people in the executive branch to act a certain way, normally by changing structure or process. They might delegate presidential power, or set up an interagency committee, or a process by which the costs and benefits of regulatory proposals should be evaluated, or conditions with which federal contractors must comply.

Memoranda tend to prompt action rather than to direct it. A president might use one to “suggest” to an agency with its own statutory power over a given area how that power should be used — that the agency should issue certain guidance about how a law should be implemented, or that it should come up with an action plan to review extant regulations and come up with new ones.

Executive orders, which are numbered and published in the Federal Register, are easy to count. As a result, they often are used as a proxy for assessing the scale of presidential unilateralism overall. But if that’s how the batting average is calculated, presidents have an incentive to pad their stats.

When accused of executive overreach, for example, Obama and his allies responded by pointing to the small number of EOs he had issued relative to his predecessors. Their count was accurate enough — but their implication was misleading. Obama was a frequent user of other tools, like PMs, that provided new policy guidance, prompted new regulation, and generated new interpretations of old statutes in ways that matched presidential preferences. On Friday the Trump administration invented the Presidential National Security Memorandum — again, something that won’t be in the count of executive orders.

So taking a full inventory of the toolbox of directives available to presidents helps us better understand the scope of executive authority more generally. And judging by Trump’s first week as president, that will be something we want to understand.