Say what you will about Donald Trump — and there’s plenty to say — he may be the first president in memory to actively limit his own branch’s power. Though far from perfect, on immigration, on funding issues, on international agreements, and on the regulatory state, the Trump administration has relinquished executive power.
So while civility, competence, and rhetoric matter, and none of those issues should be ignored, neither should the administration’s numerous actions that have helped reestablish some appropriate checks and balances.
When President Barack Obama was governing through executive fiat for more than six years, there was precious little anxiety from our elite publications regarding precedents of abuse or the constitutional overreach. Not so today. Take today’s post from Monkey Cage at The Washington Post: “Candidate Trump attacked Obama’s executive orders. President Trump loves executive orders.”
Trump might love them, but the content of these executive orders is more important than the number. Whenever people criticized Obama’s overreach, the reaction was to demand that we contrast the number of executive orders signed by the president’s Republican predecessors (in those heady days “whataboutism” was not only tolerated but favored). This is an exceptionally silly, or perhaps just an unusually dishonest, way to compare presidential records. Bean-counting, the total of executive orders, tells us nothing useful about the effects of those laws; one action could be more consequential than 15 or 50. Most of Trump’s executive orders to this point have been either statement of intent, administrative moves, or reviews of Obama-era mandates.
There’s nothing improper about executive orders or actions meant to implement a law or derived from the Constitution. (Trump’s order promoting free speech and religious freedom, for example, didn’t go nearly far enough.) But there’s plenty wrong with executive orders and actions meant to circumvent those things. Not only did the last administration habitually craft what was in essence sweeping legislation from the ether, it often framed these abuses as good governance. “Congress won’t act; we have to do something” was the central argument of Obama’s second term. Every issue was a moral imperative worthy of the president’s pen.
Re-litigating the past is often a waste of time. Fixing it, less so. There might be wide-ranging support for Deferred Action for Child Arrivals, but it was an obvious way to bypass process. Even President Obama, perhaps fearing legal challenges, called DACA“a temporary stopgap” when he first announced the policy. Trump’s intentions matter, and maybe they are nothing more than a means of leverage. He may even step back from rescinding DACA. But relinquishing power and tasking Congress with the job of substantively changing immigration policy comports with norms of American governance. Unilaterally doing so does not.
You might also be a fan of the Paris Accord, but presidents have no business entering into faux treaties of great substance without Senate approval. I have been told many times that the Paris agreement is the most crucial international deal the world has ever known. Somehow it wasn’t necessary enough to be subjected to the traditional checks and balances of American governance, either. Global warming, explained Obama in 2013, “does not pause for partisan gridlock.” He might have well have said, “my preferred partisan policy positions should not have to pause for the Constitution.”
When Democrats couldn’t pass their cap-and-trade plan, the Obama administration instituted a power plan that outstripped the legal authority Congress afforded the Environmental Protection Agency. This is how they planned on establishing the Paris Accord, as well. If Trump is successful in rescinding these onerous regulations, he will be reinstituting boundaries on the regulatory state. If your goal is inhibiting energy production, then elect members of Congress to pass legislation doing so.
The same arguments can be made for the Trump administration ending Obamacare’s concocted subsidies. Obama’s Treasury Secretary Jack Lew had ordered the government to begin making these payments without ever publicly explaining the legal justification for why. The political arguments, on the other hand, are quite clear — it’s a way to hide the costs of Obamacare while keeping the fabricated marketplaces in business. It’s difficult to comprehend how anyone honestly believes these payments are constitutional. If American voters think “cost-sharing reduction” subsidies are essential, Congress should pass a law appropriating taxpayers’ money for insurance companies. If they don’t pass such funding, then voters can elect people who will. That’s how we have been financing programs in this country for a couple of centuries. Trump could have fought to keep the power of funding from the White House, but he relinquished it.
For those who argue that all of this is nothing more than a malevolent effort to sabotage the Obama administration’s accomplishments, perhaps there is a lesson to be learned: Your legacy is going to be a rickety mess if you build it using imperious diktats rather than consensus.
Perhaps in an increasingly divided nation, this kind of regulatory and executive teeter-tottering is what we can expect. With organic divisions comes gridlock and with gridlock comes an enticement to act outside the process. So one hopes that Trump’s nomination of Neil Gorsuch (and judges elsewhere) who take both separation of power and the dangers of the administrative state seriously will help mitigate some of this future abuse. Who knows — perhaps many of these changes will be even more critical than Trump’s ugly tweets.