Executive orders serve up more pingpong
When President Barack Obama announced in last week’s State of the Union address that he would use executive orders to achieve his policy goals, he didn’t make any Republican friends.
“We continue to erode the whole notion of the rule of law,” Sen. Tim Scott, R-S.C., said. “To the extent that he continues to move unilaterally without the consent of Congress, I think it doesn’t sit well with a message of unity.”
Of course, Obama is hardly the first president to use unilateral action to accomplish his goals. And as he goes it alone, he will face the same consequences that previous administrations did. Some of his executive orders will endure, but with others, the president will find that the next chief executive is as ready to change policy as he is.
Particularly in the years since Ronald Reagan, presidents have come to the White House ready to sweep aside previous administrations’ policies and go around Congress, moving to enact their own policies without waiting for legislation or executive branch agencies. Indeed, moves to reverse one’s predecessor can look like presidential pingpong.
Reagan, for example, issued the highly controversial Mexico City Policy directive, blocking U.S. aid to organizations providing abortion counseling. That policy was immediately reversed by Bill Clinton, only to be just as quickly reinstated by George W. Bush and rejected again by Obama. The same thing happened with security classification — Jimmy Carter limited what government information could be restricted as classified before Reagan required more security controls. Then, Reagan was overruled by Clinton, who was overruled by Bush, who was overruled by Obama.
Some presidential directives are mundane — orders managing civil-service employees or military personnel, for example — but many others, such as the stack of orders and memoranda issued by Bush in the months after the attacks of Sept. 11, 2001, have had broad and lasting effects. They can be used to create or reorganize executive branch offices or agencies, such as John F. Kennedy’s order creating the Peace Corps and Bush’s creation of the Office of Homeland Security. And, of course, the Bush administration used executive orders to establish its Guantanamo detention policies.
Such orders also direct U.S. relationships abroad. Forty-four executive orders on foreign policy — 33 from Bush, 11 from Obama — were issued between 2001 and 2011. Some were obvious choices, such as freezing Iraqi assets during the Iraq War. But obvious choices can have surprising consequences of which the public is unaware.
Bush’s order, for example, targeted those who “have committed, or … pose a significant risk of committing, an act or acts of violence that have the purpose or effect of: (A) threatening the peace or stability of Iraq or the Government of Iraq; or (B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people.” This broad, vague order gave the secretary of the treasury authority to establish lists of people with whom Americans could not have financial interactions. Obama kept this order in force, and the list is now 589 triple-column pages in length.
Executive orders can be used to do end-runs around Congress. They are quick and easy ways to take action. They can convey a sense of purpose, rally supporters and address dire problems, and they are not easy to challenge — at least while the president who signed them is in office. Commissions created by executive order investigated Iran-Contra in the Reagan years and the Deepwater Horizon oil spill in 2010, and coordinated Hurricane Katrina response during the Bush administration. Presidents who want to get things done without waiting, but face a Congress opposed to their policies, may find executive orders as attractive as the other side of the aisle finds them frustrating.
At the same time, executive orders can exacerbate tensions with other branches, within the executive branch, or with state and local governments. They can also be overturned in court, as was Clinton’s order preventing the government from hiring contractors that replace striking workers. Worst of all, executive orders can raise questions about the rule of law and doubts about the legitimacy of presidents’ actions.
But the key to understanding these tools is to see the whole playbook, not just a particular play. Presidents use different kinds of direct-action tools — memoranda such as Obama’s myRA policy, signing statements such as Bush’s circumvention of a law outlawing mistreatment of detainees, and proclamations and national security directives — in different ways. We must watch how a president uses such powers before passing judgment. And fans of one president have to know that the subsequent ones will use them as they see fit.
In presidential pingpong, the next player can always change the game.
Phillip J. Cooper is a professor in the Hatfield School of Government at Portland State University. This column first appeared in The Washington Post.