Last week there was a blizzard of “executive orders,” mostly hatched by White House political director Stephen K. Bannon’s team and the White House policy adviser, Stephen Miller, aimed at disorienting the “enemy” — the mainstream media — and fulfilling campaign promises, or at least creating the appearance of fulfilling campaign promises, designed for consumption by the conservative media entertainment complex.
As the Washington Post’s conservative blogger Jennifer Rubin notes, Trump’s base-pleasing antics create firestorm:
This was a campaign stunt turned into a cruel and destructive [Muslim travel ban] policy with no forethought or planning. (“Coming in the late hours of Friday, and with little apparent consultation with other agencies and groups prior to its publication, the order created havoc and confusion among those tasked with overseeing entry into the country.”) The ban goes so far as to include green card holders. [The Trump administration is now trying to walk this back.]
The sheer recklessness and lack of planning should be deeply disturbing. Those closest to Trump seem oblivious to the fact that they are no longer just putting out white papers to please anti-immigrant fringe groups as they did in the campaign.
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We see here a perfect demonstration of what happens when demagogues, with no experience in the White House and no input from serious professionals, take a dubious campaign promise and instantly turn it into policy. (Rex Tillerson, if he had a hand in this, should not be confirmed as secretary of state; if he was excluded, he might rethink his participation in the administration.) Anti-immigrant zealots close to Trump (Stephen K. Bannon, Stephen Miller) have zero understanding of the international ramifications of their irrational and unnecessary schemes (both regarding the wall and on immigration). If Trump is to avoid becoming a failed president and doing immense harm to the country even before he gives his first State of the Union address, he should banish the ignoramuses and find some qualified help.
More importantly, Trump’s “executive orders” are not quite as the media has portrayed them. One of the most preceptive reports on this actually comes from Trevor Noah of The Daily Show. President Trump Takes (Executive) Action. Comedian Bill Maher observed that Trump keeps holding up what he signs to show to the cameras (see graphic above): “Look Mommy, I finished my coloring. Maybe we can put it on the refrigerator.” Maher adds, “No one knows how these things are going to work. No one knows where’s the money going to come from. They’re just signed tweets.”
These “executive order” signing ceremonies are designed to suck up all the oxygen in media coverage and to play to Trump’s right-wing base, while taking the mainstream media along for the ride because they have to cover the president. The media are being played by Trump.
Andrew Rudalevige explains that Most of Trump’s executive orders aren’t actually executive orders. Here’s why that matters.
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 [TPP] 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. [This clearly did not happen.]
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.
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.
But in the alternate reality of Trump world, it’s all good because In conservative media, Trump executive orders are a home run:
[I]n the conservative media that has been most supportive of Trump — and where his chief political adviser Stephen K. Bannon hails from — the executive orders have been received as tough and necessary, and a source of irritation for all of the right people. At Breitbart News, which Bannon ran until joining Trump’s campaign, multiple stories pinned the negative response to the executive orders on the billionaire and liberal donor George Soros. Legal actions undertaken by immigrant rights groups were quickly tied to Soros’s money.
“The ACLU is massively funded by Soros’s Open Society Foundations, including with a $50 million grant in 2014,” wrote Breitbart News’s Aaron Klein. “The National Immigration Law Center has received numerous Open Society grants earmarked for general support. The Urban Justice Center is also the recipient of an Open Society grant.”
A similar story, by Breitbart News’s Lee Stranahan, spotlighted the role of the Council on American-Islamic Relations in promoting the airport protests — doing so “as Trump protects [the] nation.”
At every turn in the story, Breitbart noticed a reason to be skeptical of the political backlash. Judge Ann Donnelly, who sided with the American Civil Liberties Union against the executive orders, was described as an “Obama-Appointed, Schumer-Allied Judge.” A story about the teary news conference at which Senate Minority Leader Charles E. Schumer (N.Y.) announced Democratic plans to oppose the orders was headlined “Trump Week One: Schumer Weeps.”
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The coverage was just as positive on Fox News Channel, the network that the president said, in a midweek tweet, was covering him fairly. On Saturday, two of the network’s shows covered the new policy as a clear story of media overreach. On “Watters’ World,” Ed Henry, Fox News’s chief national correspondent and a former White House Correspondents Association president, described the policy as a political success.
“It hasn’t been a Muslim ban for months,” he said. “This may be part of the brilliant Trump negotiating style. Throw something that’s radical, that’s out there. Have all the critics focus on that. Then you start moving to the middle on something that’s really not that radical. Hey, let’s enforce our immigration laws. Let’s make sure there’s real vetting so that terrorists don’t come into the country. That’s not so crazy.”
On “Justice With Judge Jeanine Pirro,” the policy’s reasonableness was to take for granted that former New York mayor Rudolph W. Giuliani, a Trump supporter from the start of the 2016 campaign, concisely explained how the “Muslim ban” Trump had campaigned on became Friday’s executive orders.
“When he first announced it, he said Muslim ban,” Giuliani said. “He called me and asked me: Put a commission together, show me how to do it legally. … We focused, instead of on religion, danger.”
On Sunday’s episode “Media Buzz,” the press-watch show hosted by former Washington Post reporter Howard Kurtz, the subject shifted entirely to whether the media were getting the story wrong. At one point, Kurtz looked dismissively at the studio’s window, saying that “out at the Capitol, behind our guests, about 200 protesters are gathering to protest this.” That was several hours before tens of thousands of protesters marched from the White House to Congress.
“Isn’t this almost exactly what he said he would do during the campaign?” Kurtz asked a panel of reporters. “The entire media establishment said, ‘This is suicidal.’… Maybe they are missing those in the country now who think this is a good idea?”
The weekend that unfolded across conservative media looked almost nothing like the one unfolding across newspaper front pages or most television news. And Trump only listens to conservative media that praises our Dear Leader, while rejecting reality-based objective news coverage as “fake news.”
This country is so screwed.