The Number of Trump's Executive Orders Is Irrelevant

You would think Democrats have enough to fight President Trump on that they wouldn’t have to resort to stupid, easily dismissed talking points. But again and again, on cable news and social media, the refrain is repeated: Trump is “ruling by executive order” and Republicans are hypocrites for cheering him on when they condemned Obama for – purportedly – doing the same thing.

It is thus necessary to repeat an elementary point that we’ve made over the years: The number of executive orders issued by the president is irrelevant; the issue is the substance of executive orders – specifically, whether they stray beyond the president’s authority.

Since the Left is not big on logical consistency, I will give the Dems this much: The specious argument they are making now is the same one they made during the Obama years. Then, the contention was that Obama could not have been overstepping his constitutional authority – as conservatives and a few honest progressives contended he was – because he had issued fewer executive orders than some of his predecessors. It’s a nonsequitur: The number of EOs has nothing to do with their constitutional validity.

EOs are patently necessary and theoretically unremarkable. The president is the head of the vast executive branch. He must give directions to his subordinates in order for the executive branch to carry out its work. A proper executive order is simply that: the president ordering subordinate executive officials to carry out lawful policies and actions – lawful because they are consistent with the Constitution and statutory law.

Let’s take the president out of the equation for a moment. In the military, a commanding officer may give a hundred orders a day to his subordinates. These are “executive orders” in the sense that the armed forces are part of the executive branch. But as long as they are within the bounds of the law, the fact that there are thousands of such orders causes us no concern. Similarly, when the attorney general gives instructions to Justice Department lawyers, or the secretary of state directs our diplomats, these are “executive orders” and standard fare.

The problem occurs when, as during the Obama administration, EOs are used by the president as the vehicle for ordering that which he has no legal authority to order and which usurps the powers and rights of other branches of the federal government, the states, or the people.

Let’s say the president issued only one executive order, which pronounced: “Henceforth, all aliens in the United States, regardless of their status and the legality of their presence, are authorized to work.” That would be an outrageous abuse of power. The fact that it was only one executive order would not matter. The problems, obviously, would be that it is for Congress to legislate the privileges of aliens, and that by issuing a directive that flouts congressional statutes the president would be derelict in his constitutional duty to execute the laws faithfully.

This is not a difficult principle. In fact, we see it all the time in other contexts.

For example, there is in theory nothing wrong with a statute; but if Congress enacts a statute that violates the constitutional limitations on its power, the federal courts invalidate it. The problem is not that Congress has enacted a statute, or ten statutes, or a hundred; the problem is that the substance of what it has enacted is unconstitutional. Just the same, when a lower court misapplies the law, a superior court will reverse the decision. It is not that there is anything wrong with the form of a judicial ruling; it is that the substance of a particular ruling violates some law or precedent and thus must be vacated.

In a National Review column yesterday on the manufactured controversy over Trump’s potential policy on detention and interrogation of enemy combatants, I noted that Trump’s EOs (and the purported draft EO that is the subject of the controversy) have carefully stipulated that presidential directives are operative only to the extent permissible by law. This is as it should be. The president of the United States has awesome powers, but they are restricted by law. As long as he respects those restrictions, it doesn’t matter how many EOs he issues. Indeed, the more lawful EOs he produces, the more clarity there is about his administration’s policies, and the more accountable the president will be in terms of whether his administration is performing in a manner consistent with his directions.

The taunts about the flurry of Trump EOs, and the suggestion that the new president’s EOs must mean the last president wasn’t really lawless, are frivolous. Democrats are going to have a long four years if this is their idea of effective opposition.