- Feldman Strategies
Democrats preview post-Trump plan: Executive orders
By David Siders 5/4/19
Presidential candidates once boasted about their abilities to bridge Washington’s partisan divide and accomplish great things by bringing together different factions.
But with Republicans favored to maintain control of the Senate in 2020 — and a new norm taking root after three successive administrations that aggressively wielded executive orders to make policy — Democratic candidates for president are more frequently pointing to the ambitious things they would ram through on their own if they won.
Campaign-trail pledges to sign executive orders aren’t new. But the frequency of the promises this year, and the expansive nature of them, mark a departure from practice.
It’s a tacit acknowledgment of an increasingly dysfunctional, polarized system of government — one that is beyond any one candidate’s ability to repair. Against that backdrop, the thinking goes, a prospective president’s only option for meaningful policymaking is to take unilateral action by signing executive orders.
“That’s basically the only way to govern now,” said Andrew Feldman, a Democratic strategist in Washington. “It’s kind of a way of life.”
With executive orders, he said, “you can actually get a lot done, and as we’ve seen with the Trump administration, you can do a lot of harm.”
Releasing his plan to address climate change on Monday, former Rep. Beto O’Rourke of Texas topped his announcement with a pledge to take executive action to rejoin the Paris climate agreement and enact regulations to reduce greenhouse gas emissions
Last week, Sen. Kamala Harris of California pledged during a CNN town hall to take executive action on gun control within her first 100 days as president if Congress does not adopt sweeping legislation.
Sen. Elizabeth Warren of Massachusetts, promised that on her first day in office she would sign an executive order “that says no more drilling — a total moratorium on all new fossil fuel leases, including for drilling offshore and on public lands.”
On a litany of policy issues ranging from immigration to environmental protections, Trump has infuriated Democrats with his executive actions. Democrats gained a legislative check on the president when they retook the House after last year’s midterm elections. But Democrats are pining for a presidential nominee who, if elected, would immediately set about undoing Trump’s work.
He or she would almost certainly have to accomplish that without the assistance of the Senate. Though Democrats have a narrow path to gaining a majority, it is more likely that Republicans will maintain control. In the earliest stages of the presidential campaign, candidates have faced pressure from activists to outline what they would do in office without cooperation from Republicans.
“All of the presidential candidates recognize that the Senate will be where good policy goes to die,” said RL Miller, founder of the super PAC Climate Hawks Vote.
She called candidates’ focus on executive orders a product of a legitimate “frustration with the polarized nature of Congress and a realization that Congress is in fact gridlocked — especially the Senate.”
Promises to assert executive powers — whether by order, proclamation or other means — have at times played a prominent role in campaigns. Jimmy Carter vowed while campaigning for president in 1976 to grant unconditional pardons to thousands of people who had evaded the draft during the Vietnam War, a promise fulfilled by proclamation on his first full day in office.
But controversy surrounding the practice reached new heights with President Barack Obama and a recalcitrant Congress — and now Trump. Obama, though initially cautious of wielding executive power, used his pen to enact significant changes in climate, immigration and labor policy after declaring in 2011: “We can’t wait for an increasingly dysfunctional Congress to do its job. ... Where they won’t act, I will.”
Like most Republicans, Trump was critical of Obama before taking office, writing on Twitter in 2014 that “Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress.”
But the president has embraced executive authority in office, using the occasion of his 100th day in office in 2017 to note that no president since World War II had signed as many executive orders by that point in his presidency.
He has continued his pace, but not by outlandish numbers. In the first two years of his presidency, Trump issued 92 executive orders, 18 more than Obama and seven more than George W. Bush had each issued during their own first two years, according to the Office of the Federal Register.
Yet the Obama-to-Trump changeover at the White House has highlighted one shortcoming of executive actions: They can be reversed or, at a minimum, become mired in court.
A federal court in Alaska in March barred the Trump administration from undoing an Obama-era ban on oil and gas leasing in parts of the Arctic and Atlantic oceans, finding Trump’s 2017 executive order has “exceeded the president’s authority.”
Last month, Trump came under legal threat again after signing two orders designed to limit states’ power to block or delay construction of oil and gas pipelines.
One of his opponents: Washington Gov. Jay Inslee, a Democratic candidate for president who promised in a prepared statement “to challenge any attempt by the administration to illegally constrain Washington’s authority to protect our state’s natural resources."
Inslee is expected to propose his own executive action or actions of some kind when he outlines his plans to address climate change.
That’s precisely the problem raised by an abundance of candidates promising to work their will through executive orders: It furthers the prospect of a political system in which each subsequent administration spends its time undoing the work of the previous one.
For candidates proposing their own executive orders, said Les Francis, a deputy White House chief of staff in the Carter administration, “Talking about an executive order on the campaign trail is just a lot easier than accomplishing it through normal legislative procedures and processes.
“I think it’s more to appeal to various segments of the electorate — to rev people up issue by issue," he said. "It’s against a backdrop of dysfunctionality and paralysis to be sure. But I think it’s more, ‘How do you get people revved up?’”
Yet if proposing executive orders is an effective overture to primary voters, it is also a reminder of the shortcomings of modern politics.
Bo Cutter, a veteran of the Carter and Clinton White Houses, pointed to the uncertainty surrounding protections for undocumented immigrants — the subject of conflicting executive actions by Obama and Trump — as an example of the danger of governing by executive action.
To the extent that executive orders reflect the inability of a president and lawmakers to cooperate, he predicted that eventually, “People will get thoroughly sick of that. … Increasingly, you’ll see citizens sour on the whole enterprise.”
For a presidential candidate, he said, “It’s probably not yet a political mistake.”
However, he added, “I think it’s a governing mistake.”