2016 GOP Donald Trump

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Can a limited government conservative be happy with the results of Trump’s executive actions after questioning and criticizing President Obama’s use of the pen for eight years? That is the central question that seems to be being asked on social media over the whirlwind first three full days of the Trump presidency. The answer is like all things complicated. In order to arrive at an answer, however, some facts are needed.

Some of the questions conservatives should be asking include: Are all executive actions similar? What is the difference between a presidential memorandum and an “executive order?” Where does Trump’s use of executive orders stand historically? What sorts of executive orders should be troubling?

First, not all executive actions are similar. There are three types of presidential actions: executive orders, presidential memoranda, and proclamations. Each of these accomplishes a different thing.

According to a Congressional Research Service report, “executive orders and proclamations are directives of actions by the President. When they are founded on the authority of the President derived from Constitution or statute, they may have the force and effect of law.” It is important to note that executive orders should not create law. Instead, orders are often used to direct how government agencies are to run under a particular president, and must be published in the Federal Register.

The other major avenue for presidential action is the presidential memorandum. In the general sense, these memoranda direct government agencies on their operations to ensure that certain objectives of the president are carried out. Think of it as the memo your boss sends you outlining your quarterly objectives. These memoranda do not get published in the Federal Register, although most administrations have published them on WhiteHouse.gov since the advent of the internet.  

As the CRS report states, it is sometimes semantics whether an action is released as presidential memoranda or executive order. Some past presidential memoranda basically carried the weight of an order, including Bill Clinton’s memorandum to “remove the moratorium on federal funding of research involving the transplantation of fetal tissue from induced abortions.” As CRS states, most news agencies reported the memorandum as an executive order. The media is similarly using “executive order” as meaning both “memoranda” and “orders” during Trump’s first week in office.

The test for conservatives should be whether an executive order restoring or acting within the letter and spirit of the law.

By his first Wednesday in office, Trump had issued twelve presidential actions. Four of these were executive orders, and eight of them were presidential memorandums. The two immigration actions — building the wall, and interior enforcement — were executive orders, as was his expediting of environmental reviews for infrastructure projects and his Obamacare economic burden action. Everything else Trump had done was through a memorandum. The hiring freeze, pipeline actions, Mexico City policy, among others, were memorandum.

Not all executive orders are equal. This is an important distinction to make for conservatives. Orders which expand a statute in an area not explicitly authorized, or fundamentally transform law, are troublesome. The Obama executive order that comes immediately to mind is DAPA, which was struck down by a lower court and not taken up for review by the Supreme Court. This order, in effect, told the Department of Homeland Security to not follow the law. Trump’s executive orders on immigration, however, have ordered the Department of Homeland Security to switch gears and enforce the law. He created no new law in either immigration action.

The test for conservatives should be whether an executive order restoring or acting within the letter and spirit of the law. If that is the case, concern should be minimal.(Obviously conservatives can still object to the contents of the action, but as a matter of procedure these orders shouldn’t be an issue.)

Conservative social media has been filled with some variation of the following thought lately, “I appreciate the results of Trump’s executive orders, but shouldn’t we not be hypocritical? He’s put a lot of them out in his first week.” Well there are two ways to look at this. The first is what have been orders and what have been memoranda as discussed above. The second is to look at the historical record.

The bullet points below detail the total number of executive orders of the last five presidents as well as the number of orders they promulgated in total in their first year, first 30 days, and first seven days.

  • Barack Obama - 249 total orders, 39 in the first year, 16 in the first 30 days, and five in the first seven days.
  • George W. Bush - 291 total orders, 54 in the first year, seven in the first 30 days, and none in the first week.
  • Bill Clinton - 364 total orders, 57 in the first year, six in the first 30 days, and two in the first day.
  • George H.W. Bush - 166 total orders, 31 in the first year, two in the first 30 days, and one in the first week.
  • Ronald Reagan - 381 total orders, 50 in the first year, five in the first 30 days, and none in the first week.

So far Trump has issued more executive orders in his first week in office than recent presidents. If he keeps up the pace, which should abate, he would have more orders in his first year than any president since Franklin Delano Roosevelt. This, of course, would be troubling.

So far Trump has not issued orders at a pace in his first week that is particularly troubling.

The Roosevelts bookend the golden age of executive orders. Starting with progressive Teddy Roosevelt, executive orders ramped up. According to the CRS report referenced earlier, the only president at that point in American history who had issued more than 200 executive orders over the course of a presidency was Grant (217 orders over eight years). In fact, most presidencies were well below 100 orders. Teddy Roosevelt had 1081 in his 7.25 years in office.

That pace remained over the course of the next six presidencies, with FDR having the highest total executive orders at 3522. When one examines the average number of annual orders, conservative stalwart Calvin Coolidge has the fourth highest average number of orders at 222.77 per year. After FDR’s pseudo monarchical reign, the use of executive orders waned.

So far Trump has not issued orders at a pace in his first week that is particularly troubling. If he keeps up the current pace, it will become an issue and could signal a return to the period of time between the Roosevelt presidencies. It is incumbent upon conservatives to hold his feet to the fire if he begins to use executive orders to rewrite law, not merely instruct government agencies to enforce existing law.

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