President Trump’s first 100 days have been spectacularly effective, according to the White House. Aides bragged this week that the president will have issued 32 executive orders by the 100-day mark — “more than any president in half a century!” as Kellyanne Conway gushed. “TAKING EXECUTIVE ACTION,” announced a White House news release on Tuesday: “In office, President Trump has accomplished more in his first 100 days than any other President since Franklin Roosevelt.”
Well, the math is mostly right. The news release shifted the count from 32 to 30 Trump executive orders (EOs). But either way it’s true that, by Saturday, Trump will have issued more EOs in his first 100 days in office than any president since Harry Truman issued more than 50, after taking the reins in 1945 after FDR’s death. (In Truman’s first 100 days after election in his own right, he issued 25.) The next highest count is Lyndon Johnson’s 26 orders from early 1965. By comparison, Barack Obama issued 19; George W. Bush, 11; Clinton, 13; George H.W. Bush, 11; and Reagan, 18.
Trump wins! The prize is … well, raw numbers like this are not very meaningful — and in the present case, they are more than a little ironic.
Which orders count for what?
Trump’s executive orders, like those across presidential history, vary wildly in their significance. A simple count doesn’t tell us much. The substantive content of any given directive matters greatly for whether a president has “accomplished more,” or anything at all, as discussed further below.
A simple count of executive orders also ignores other tools of administrative action. Other presidential directives — memorandums, administrative guidance letters and many others — can achieve the same results. It’s worth remembering that Obama bragged about how few orders he had issued. Fewer orders, he said, meant less presidential unilateralism. But that wasn’t quite right, either. In 2013, for instance, Obama issued just 20 executive orders all year — but 41 presidential memorandums. And many of his most controversial administrative initiatives were not pursued via executive order.
When ‘unconstitutional’ means ‘doing what my party dislikes’
Of course, Trump doesn’t have to worry about evading Republican charges of dictatorship, as Obama did. Sen. Roy Blunt (R-Mo.) argued that “the concern with Obama was the unbelievable volume of executive orders” — exactly what the White House is touting this week. Sen. Ted Cruz (R-Tex.) does not seem poised to dust off his 2014 op-ed attacking Obama’s “imperial presidency.”
This is not surprising, because “unconstitutional” has for some time been a bipartisan epithet meaning “policy the other party prefers” (rather than, say, a military attack on a sovereign nation without congressional authorization). Indeed, Sen. James M. Inhofe (R-Okla.) was asked by Roll Call in February whether Republicans would support Trump’s executive actions. He answered honestly. “ ‘Sure,’ he replied with a grin. … ‘We’ve got a different crowd in there now.’”
Trump himself criticized Obama’s use of orders many times, as Chris Ingraham points out. In January 2016, for instance, he complained, “We have a president that can’t get anything done, so he just keeps signing executive orders all over the place.”
Executive action as substitute for — not a supplement to — legislation
That complaint — that orders were a cheap substitute for legislation — leads to another irony. Normally, the number of executive orders issued rises under unified party government. This is partly because the president’s congressional co-partisans are unlikely to roll back those executive orders, as just noted — but also because many EOs are used to implement parts of new laws, and more laws are passed during unified government.
However, the statutes passed thus far in 2017, with unified party government, don’t require much in the way of executive explication. A large proportion are resolutions rolling back Obama-era regulations. These, like other new laws renaming federal facilities or exhorting more women to be astronauts, are pretty much self-executing.
And while it’s true that substantial legislation takes some time to become law, almost none of Trump’s program has even been sent to Congress. Thus executive action is underway not to supplement legislation but to substitute for it. That’s effectively the “we can’t wait” approach Obama took beginning in 2011 after Democrats lost the House: “Where they won’t act, I will.”
This approach is less common during periods of unified government. But Trump’s executive actions comprise at least eight of the 10 policy areas in which he pledged to send bills to Congress. These serve as placeholders on the complicated questions of infrastructure and energy, community safety, national security, immigration, ethics, tariffs, education and health care.
Some of these had an immediate impact but were relatively easy lifts — changing the government’s mind on a specific pipeline permit, for instance, or removing the United States from a Trans-Pacific Partnership that didn’t yet exist. But the vast majority await others’ action. That includes Congress (as with border wall funding), the courts (where the travel ban and the effort to punish “sanctuary cities” are blocked, for now) and, notably, the executive branch itself.
This is because many of the president’s directives tell departments to review laws and perhaps propose new ones; or to consider regulatory action; or to come up with plans, for policy or reorganization or national security. These 60- or 120- or 180-day deadlines will be coming due soon and throughout the year. As David Lewis noted here yesterday, without people in place to conduct and review all the studies put in motion, it is hard to know what will result, or when.
Presumably, the Pentagon had a “plan to defeat the Islamic State” handy on its bookshelf; but does a regulatory review officer exist in every agency as of this week? One order, in fact, awaits the president. It empowers the head of the Council on Environmental Quality to weigh in on infrastructure projects. But as yet no one has been named to fill that position.
Will task forces come up with useful ideas for fighting crime, or making rural America more prosperous? Will regulatory budgets tame big government?
Perhaps so. But in the meantime, many of these directions do not need to be issued as EOs. The president can ask a department head to review relevant legislation or regulation by letter or even phone call; an executive order is not needed to remind the government of existing “Buy American” laws.
In the past, the Office of Management and Budget tried to limit EOs to things that required its legal imprimatur. The Carter-era archival document above from the OMB general counsel declares (in all-caps, surely annoying even then):
THIS IS NOT AN EXECUTIVE ORDER IN TONE. THERE IS NO APPARENT LEGAL OR ADMINISTRATIVE REQUIREMENT THAT THIS BE AN EO.
It was issued instead as a presidential statement via the press office.
Overall, the Trump EOs succeed in setting a clear tone for the wider government. Some, like the order demanding more aggressive enforcement of immigration law, have had a real impact already. Some — on regulatory relief or government reorganization, among others — still might. But the orders show very incomplete results.