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Flurry and fury of executive orders raise concerns

February 4, 2017

Washington Correspondent The Philadelphia Tribune

During much of the second half of the Barack Obama’s presidency, there was a considerable degree of conservative angst over “executive overreach.”

Republican lawmakers constantly poked the Obama White House for either being too evasive or discarding federal checks and balances. GOP governors and state legislatures, along with grass-roots groups, screamed of an Obama conspiracy to destroy state’s rights on every issue from gun rights to schools.

Tea party activists made their mark on the political map by vilifying the Affordable Care Act (aka “Obamacare”) as a destructive form of federal encroachment. In addition, a growing number of armed movement of militias, rogue ranchers and “patriot” groups were girding for a clash with a president and his federal troops.

An alt-right, conservative talk-show stereotype of President Obama as “King Obama,” supplemented by ugly internet memes of a monarch dressed in royal garb, had all the makings of a political rebellion that helped plant the seeds of Donald Trump’s ascension to the White House.

“He sees no limit to his power and behaves as though constitutional limits on the executive branch do not apply to him,” scolded American Thinker contributor Deane Waldman as recently as last spring.

Heritage Foundation researcher James Wallner suddenly found urgency last summer in the “dangers posed by unilateral executive action” as conservatives prepped for the election year prospect of one liberty-killing Democratic administration passing off power to another.”

Yet, the newly installed Republican president has already signed six executive orders in just the first week of his four-year term. That’s one order more than Obama issued in his first week in office.

Two more were, publicly, issued last week, along with rumors of others to address controversial issues such as the rights of federal LGBTQ workers, “religious freedom” and alleged voter fraud.

The top of Trump’s Week Two in the Oval Office also one of the most unsettling executive actions we’ve seen in recent memory: ambitiously demanding the elimination of two regulations for every one Trump-era regulation.

This doesn’t include an additional 10 presidential memoranda thus far.

To many observers, these appear as fairly absolutist fist-pounding commands with chaotic effect: whether it’s immediate repeal of the Affordable Care Act or immediate construction of the Keystone XL pipeline or immediate travel bans to the U.S. for certain Muslim populations.

“I won’t refuse it. I’m going to do a lot of things,” Trump did promise as a candidate last January on “Meet the Press” when asked about executive orders. “But I’m going to use them much better and they’re going to serve a much better purpose than [Obama has] done.”

“This is very dangerous territory we’re entering,” said Chris Edelson, a professor of government at American University and author of a recent book on executive actions titled “Power Without Constraint: The Post-9/11 Presidency and National Security.”

Edelson’s examination of executive authority only looked closely into George W. Bush and Barack Obama use of it during their terms from early 2001 to early 2017, but he’s much more alarmed by what he’s currently seeing in the Trump administration.

“There’s a pattern of a president who doesn’t recognize the law or doesn’t really believe it applies to him,” the professor said.

“His use of executive orders is outside the norm,” said Liz Kennedy of the Center for American Progress. “He has been aggressively changing federal policy by fiat, even though his fellow Republicans control both chambers of Congress.”

“When President Obama acted to protect immigrants and the environment in the face of Republican obstruction, they decried it. But now President Trump is pushing aside his own party to rule by his pen alone,” she said.

“Our system of government is built on the idea of checks and balances, and each of these controversial edicts will be examined to ensure the President is acting within the law,” said Kennedy.

But both Edelson and Kennedy concede that given Trump’s propensity toward authoritarianism, it’s unclear if court rulings against executive actions such as the travel ban can be enforced. That frightens them. Even when advocates secured federal court orders against the ban, there were numerous reports of Border Patrol and Customs agents at airports outright defying them.

Still, many conservative scholars aren’t as alarmed.

Peter J. Wallison, a senior fellow in financial policy studies at the Heritage Foundation, argues that Trump is acting within “existing laws.”

“Thus far, there is a significant difference between the Obama executive orders and the Trump executive orders,” said Wallison. “Even Trump’s recent immigration order — which many have claimed does not represent American values — is clearly based on prior congressional authority. Some of Obama’s controversial orders, on the other hand, did not have legal support.”

Such past actions, among others, triggered House Republicans to create a Task Force on Executive Overreach last year.

“The House Judiciary Committee’s Task Force on Executive Overreach will study this troubling trend and also look for solutions to prevent the executive branch from exceeding its constitutional authority,” said its committee’s chair and task force founder, Rep. Bob Goodlatte (R-Va.), in a statement last January.

It’s unclear if the task force, populated exclusively by GOP members, is active.

Yet, on average, President Obama was rather frugal in his use of executive action, as American Presidency Project data show. It has him ranked 16th among presidents for the total number of orders issues and 21st based on a yearly average.

David Boaz, executive vice president for the libertarian-leaning Cato Institute, also expresses worry over the pace of executive authority under a less-than-month-old Trump presidency.

“Obviously he’s only been in office for 12 days,” Boaz told The Philadelphia Tribune, referencing a 2016 National Review column in which he observed that Trump campaigned as “the man on a white horse.”

“He promis[ed] to vigorously exercise executive power throughout his candidacy,” Boaz noted.

“The point is not how many executive orders [or memoranda or directives] a president issues,” said Boaz. “But what their effect is and whether they are grounded in constitutional or statutory authority.

“Trump’s presidency is still young, but it looks like it’s moving further in the direction of one-man ‘pen and phone’ rule-making. That should trouble liberals, conservatives, and libertarians,” he added.