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I sat down this week for an exclusive interview with my seven-year old niece on the topic of presidential powers. When I asked what she would do if she were president, she responded first with some remarkably substantive ideas about education, equality, and voting – and then threw in, “and everyone can eat ice cream for meals.” Watch out for this kid in 2052.
My niece’s conception of the powers of the presidency is, I think, typical of how young children view the job. Essentially, the president gets to tell anyone to do anything, anytime, for any reason – after all, we’re talking about the president. If the president wants to authorize ice cream lunches, who’s going to stop him?
Sadly, however, our actual President seems to share this simplistic, almost childlike view of his own legal authority. And Donald Trump’s weapon of choice throughout his tenure in the White House has been the executive order.
And why wouldn’t it be? An executive order seems so easy. Just write down what you want to happen, sign your name with a flourish, hold it up for the cameras, done and done. Heck, the very term “executive order” feels decisive, strong, tough — everything Trump thirsts to be seen as. It’s what executives do – they issue orders. “Executive Order” sounds like a Harrison Ford movie from the 1990s. (Wait, was it? Googling… no, guess not, but “Executive Decision” starring Kurt Russell is darn close.) I readily admit, if I were president, I’d be firing those suckers off left and right.
Trump did not invent the executive order. His predecessor, President Barack Obama, was so aggressive in his use of the unilateral presidential decrees that he inspired a Saturday Night Live sketch poking fun at his habit of making policy without involving Congress. (“I’m an executive order, and I pretty much just happen,” a cigarette-smoking Bobby Moynihan rasps, after Obama has shoved a well-intentioned piece of Schoolhouse Rock-esque legislation down the Capitol steps.)
But Trump’s use – or threatened use – of executive orders stands apart because he legitimately seems not to understand, or to care, about how they do and do not work.
So let’s get a few things straight about the legal powers of an executive order. First, as the name implies, an executive order only binds the Executive Branch – the White House and our federal agencies. There’s an awful lot of power in that, but an executive order has zero impact on Congress or the courts. Executive orders do not, or are not supposed to, upset our constitutional balance of powers.
Second, executive orders apply only to the federal government. They are not binding on state or city governments, or private companies or individuals. If a governor receives an executive order from the White House, he is free to treat it much as Trump treats a cCongressional subpoena – have a chuckle, fold it into a paper airplane, and launch it towards the trash can. (The difference being that Trump’s categorical defiance of cCongressional oversight power is unconstitutional.)
Throughout his tenure, and increasingly over the past few months, Trump has turned to the executive order (or the threat of one) during his most petulant temper tantrums. It’s the same awkward dance, on repeat. Something upsets Trump personally; he declares, “executive order!”; and then either some poor staff attorney has to cobble together a face-saving half-measure, or, sometimes, nobody does anything at all.
Here are some recent examples:
Twitter. Just days after Twitter slapped a red-fonted fact-check warning on a paranoid Trump tweet pushing unfounded conspiracy theories about mail-in ballot fraud, Trump promised “big action” in retaliation. Instead, he offered up a milquetoast, confusing Executive Order featuring as its lead provision a declaration that the Communications Decency Act of 1996 should be “reinterpreted.” “Big action,” indeed! I can practically feel Jack Dorsey trembling. The rest is more window dressing and petty score-settling. In one passage surely never to be featured on display in the National Archives, Trump moans that Twitter picks on him when it really ought to be meaner to Rep. Adam Schiff and the “Russian Collusion Hoax” instead. Yes, this was done on official White House letterhead.
TikTok. Credit where due: this time, Trump vowed to use executive action to ban TikTok, and that’s more or less what he did. While it’s not precisely correct to say Trump “banned” TikTok — it’s not as if he has the magical power to make the app disappear or to prevent teens from wasting their lives on it — he did issue an executive order that invokes emergency legal powers to prohibit Americans from doing business with TikTok’s parent company ByteDance. That, in turn, creates pressure on the parent to sell TikTok and get out of the American market.
The problems here go deeper. First, it seems not coincidental — and consistent with his vindictive action against Twitter — that Trump moved against Tik Tok shortly after its users sabotaged his dud of a rally in Tulsa. (And I must note that the brilliant Sarah Cooper has hilariously exposed Trump on TikTok simply by mouthing Trump’s own words.)
Second, given all that is happening in the United States in 2020 — a pandemic that has claimed over 160,000 lives and tanked the economy, to start — it seems misguided (to put it charitably) that Trump has focused laserlike on the twin existential scourges Twitter and TikTok. Don’t get me wrong. It’s a close call which has claimed more wasted life-hours between Twitter (for me) and TikTok (for my daughter), and we’d both be better off without the social media distractions. But, if you listed our nation’s top 50 most pressing problems, neither of these apps rates a mention.
Mail-in ballots. In his ongoing campaign to proactively undermine 2020 election results by spouting unhinged and baseless claims about fraud in mail-in balloting, Trump threatened to deploy an executive order to regulate voting processes. “I have a right to do it,” he said. Here’s the good news: no, he doesn’t. Under our Constitution, Congress and the states hold the power to determine time and manner of voting. The President has essentially no direct legal authority over how we vote. Trump thus far has not followed through on his threat to issue an executive order on voting. And if he does, the order will be worthless and dead on arrival.
Coronavirus relief. Republican Senator Ben Sasse aptly called the series of executive orders issued by Trump to purportedly deliver Coronavirus-related relief “unconstitutional slop.” Cold, but the truth hurts. Indeed, these measures seem well-intentioned but they’re mostly for show. Sasse is correct that some provisions, including a payroll tax deferral, are constitutionally unkosher; Congress, not the president, holds taxation power under the Constitution. Other measures are far less than advertised. For example, the order purporting to postpone evictions really only instructs that certain Cabinet secretaries “shall consider” whether certain measures are appropriate, without allocating any specific funding.
Trump’s ignorance about executive powers is important, first, because it reminds us that he simply does not understand or respect the limits of his own power. Children think the president can do whatever he wants because he’s president. But adults — especially presidents — should know better.
The greater concern is that Trump does have at least some understanding of the limits of his powers, but just doesn’t care. He holds little regard for laws or norms, he has no interest in negotiation or compromise, and he refuses to work within our time-tested (though imperfect) system of checks and balances. Trump is drunk with power — and all indications are that he will deploy every means at his disposal to avoid losing it.
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