What’s the matter with…executive action?
Over the last election cycle President Obama’s use of executive action was framed as a political leader overstepping his power and pushing his agenda into law without first consulting Congress. The principle of executive action was demonized and its legitimacy was questioned.
As the new administration finishes its first week in office, executive actions have been flying off Trump’s desk, all largely controversial and frightening to many different populations, they have created an enhanced fear among many populations.
Executive action was created in the U.S. Constitution Article II because of broad language in respect to powers of the Executive Branch. The umbrella of executive action covers a wide range of Executive Branch functionings including: Orders, Memorandums and Proclamations.
Executive (or Presidential) orders began largely as a direct order from the president to a specific agency and were rarely publicized, as they were seen as internal maintenance.
Until the War Powers Act of 1917 was amended in 1933 to expand presidential power, executive orders were similar to a departmental memo, directing those working in government agencies.
With the amendment in 1933 the President gained the power to declare a State of Emergency, under which he can sign further executive orders on trade, economy and other policy, without the express approval of Congress. Furthermore, by Article II of the Constitution the President can claim to implement executive orders based on previous legislation as seen fit by his office.
Noteworthy executive orders throughout history include executive order 9066, which interned Japanese-Americans after Pearl Harbour, and executive order 13290, which removed U.S. blocked Iraqi government money and deposited it into the U.S. Treasury. Others remain more maintenance-oriented, such as Executive Order 13523, which gave a half day of work to most federal workers on Christmas Eve 2009.
All executive orders are numbered and can only be removed from binding contract via executive order or a review in Congress.
Presidential Memorandums are a “lower class” of executive power than executive orders, and can fall into three categories: Presidential Determinations, Memorandum of Disapproval or Honorary Memorandums.
Presidential Determinations are the most important of the three because plain language often uses the words “executive order” meaning both Presidential Determinations and executive orders, although they are fundamentally different.
Presidential Determinations are nonbinding and are seen as a way for the President to push his agenda into Congress, but do not create new legislation or laws. They often reflect the wants of the administration and can be used as a jumping off point for proposed legislation in Congress. Executive orders, however, are binding actions to which the public and the government must adhere.
As the Trump administration scrawls signatures at an alarming rate, the executive orders he has passed are troubling, and the Presidential Memorandums are telling about his ideas for the direction of the nation.
Since taking office Trump has signed four executive orders and ten Presidential Memorandums, largely regarding controversial issues that could negatively affect minority and underprivileged groups within the United States.
The Presidential Memorandum Regarding Construction of the Keystone XL Pipeline, and other Memorandums, are a direct threat to the change which grassroots organizations began in protest to the violation of minority rights.
These changes do not need to go through Congress, unfortunately, and are framed as the administration simply enforcing legislation that is already in place.
Presidential Memorandums of the new administration are of specific concern because of their vilifying nature and the obvious dismissal of the people’s concerns around large, controversial topics.
Presidents in the past have questioned their authority that they received under the War Powers Act and its reform in 1933.
Truthfully, the President is not making laws. Laws can still only be made through Congress, but, if the build up to the Trump Presidency is any indicator, we can expect there will be little checks and balances from Congress as lead Republicans change their ideas to fit with the America Trump envisioned — one run by the rich, ignoring the poor and the forgotten people who voted for him.