The GOP reaction to these executive orders has been somewhat muted. But a few Republicans have stepped forward to praise them. The problem is that many of them attacked Obama’s executive actions in much the same way as Trump: characterizing them as a failure of leadership and an end-run around Congress.
Conservative radio host Mark Levin tweeted that Trump “had no choice but to issue the Executive Orders.”
“The president, and the American people, are sick and tired of [Nancy] Pelosi, [Charles] Schumer, and the media playing games with their lives and their families, and they are sick and tired of legislative blackmail by a wildly radical House speaker from San Francisco,” Levin said, adding: “Kudos to the President, the only person in Washington who actually wants to get things done on behalf of the people.”
This is the gist of many defenses of Trump’s executive action: He had to do it because Congress wouldn’t. But there was also a time in which Levin said Congress’s inaction was no justification.
“When [Obama] gets up there and starts saying, if Congress doesn’t do this, I’m going to do this unilaterally, it violates separation of power a lot of the time,” Levin said in 2013.
White House trade adviser Peter Navarro made waves this weekend by claiming, “The Lord and the Founding Fathers created executive orders because of partisan bickering and divided government.” In a separate interview with Jeanine Pirro on Fox News, Pirro cued up a question to Navarro by saying that Trump “saw the pain that Americans are going through right now and that he didn’t want to tolerate what’s going on with Schumer and Pelosi. He signed four executive orders and actually will deliver for the American people.”
But in 2014, Pirro called Obama’s immigration executive action a “thuggish, illegal move.” And like Levin, she said such orders weren’t a substitute for dealing with lawmakers.
“How about you get both houses of Congress to agree?” she said, adding: “You’re so arrogant that instead of giving the new Congress a chance to pass a fair immigration law, you just do your own thing.”
It bears noting that, by that point, Congress had spent years and years failing to overhaul the immigration system.
That long-running failure wasn’t a good enough reason for then-House Ways and Means Committee Chairman Kevin Brady (R-Tex.), either. He said around the same time that, “the immigration system is broken; the Constitution is not. By circumventing its checks and balances and contorting the law, President Obama is defying the will of the American people.”
On Saturday though, Brady hailed Trump for acting in the absence of a coronavirus deal.
“American families shouldn’t suffer because Nancy Pelosi and Charles E. Schumer demand a crazy $3 trillion special interest wish list instead of helping workers and Main Street businesses,” Brady said.
Trump adviser Stephen Moore was among the most vocal supporters of Trump’s executive orders this weekend. In fact, Moore urged such measures in a Wall Street Journal op-ed last week titled “How Trump Can Deliver Tax Relief Without Congress.”
“It’s a political stroke of genius by the president as the November presidential election approaches,” Moore added in a Fox Business op-ed after Trump made the move.
But in 2015, Moore wrote another op-ed in which he called Obama’s executive actions “illegitimate power grabs” and also said such actions shouldn’t replace congressional authority.
“His executive orders on immigration, energy drilling, the IRS and so on indicate that his reaction to a Republican-controlled Congress is to transform the executive branch into a lawmaking entity — whatever it takes,” Moore wrote in Investor’s Business Daily. The situation today is much the same, with the opposition party (the Democrats) controlling the House and Trump abandoning the legislative process.
As legal commentator Elie Honig has noted, comparing the use of executive orders between presidents is a difficult task. The issue isn’t necessarily the quantity of them but what they contain. Executive orders, by law, shouldn’t create new law but should act within the framework of legislation passed by Congress. In the end, the courts will decide — though perhaps not before the 2020 election.
Democrats, like Republicans, haven’t been entirely consistent on this. While criticizing Trump for overreach today, many of them praised Obama’s immigration and other executive actions, and parts of some of them were later struck down by the courts. Republicans today have defended Trump by saying he’s merely following Obama’s lead.
The difference today is that many of the most vocal conservative supporters of Trump’s actions have in the past raised a very specific objection to the executive orders: that they shouldn’t just be used when Congress fails to act. It’s one thing to pitch the moves as unconstitutional; it’s another to cast them as a failure of leadership.
It remains to be seen whether Trump’s actions will pass legal muster, but legal experts are doubtful. And even some Republicans are speaking out against them.
Sen. Ben Sasse (R-Neb.) called it “lawmaking by executive order” and “constitutional slop.” He said flatly, “President Trump does not have the power to unilaterally rewrite the payroll tax law.” Former senator Rick Santorum (R-Pa.) said Monday morning on CNN that Trump’s action on unemployment is effectively “creating a new unemployment system, if you will, and is something that is under the purview of Congress to do and is not for the president to be able to do.” Republican Sens. Lamar Alexander (Tenn.) and Lindsey O. Graham (S.C.) have offered more muted comments, saying that Trump’s heart is in the right place but that Congress should be handling such issues.
As is often the case, these internal GOP criticisms are the exception rather than the rule, and they’re mostly couched so as to avoid rocking the boat too much. But the fact that they exist is a testament to how this runs counter to the GOP’s — and Trump’s own — self-proclaimed principles.
Trump, after all, said in 2016 that “I want to do away with executive orders for the most part” and said Obama was using them “because he couldn’t get anybody to agree with him.”