It’s the Substance, Stupid

This tweet is doing the rounds:

Bluntly, this is really rather silly. As far as I can see, De Rosa’s contentions here are a) that conservatives deemed many of Obama’s executive orders to be illegal, b) that they have thus far been fine with Trump’s, and c) that they are therefore guilty of hypocrisy. But to arrive at this conclusion one has to be completely ignorant of the rationale on which many of Obama’s orders were critiqued. Outside of a few voices within the fever swamps, the conservative charge against the last president was not that executive orders were illegal per se, but that Obama used executive orders to wield power that he had not been accorded (i.e. ultra vires); to change the meaning of laws that had been passed by Congress (appropriation of legislative power); or to assert authority that the federal government does not enjoy. Or, put another way, the argument against Obama revolved around the substance of some of his orders, not around the orders themselves.

The best way to think about this is to compare executive orders to, say, the lawmaking process. Suppose that the Republican Congress passed a law that prohibited flag burning or deprived accused Americans of their right to a trial. And suppose that the Democratic party said in response, “that’s unconstitutional!” In such a case, there would only be one relevant rejoinder: “No, it’s not.” If Republican lawmakers said instead, “so we don’t get to exercise our powers?” or “but we’ve only passed one law this session” or “you’re hypocrites because you passed laws back in ‘09,” they should expect to be laughed out of polite society. Why? Because the material question here is of legality, not of partisanship or of number or of the integrity of the underlying power.

This is not, of course, to predict that Donald Trump will always follow the law. (Indeed, by following one of Obama’s illegal precedents, I suspect that he is already on his way to breaking it.) But it is to say that Trump’s early flurry of orders is by no means hypocritical in and of itself (especially when he is using his power to reverse previous orders). To oversimplify, there are three main ways in which presidents can legitimately use executive orders. The first is to make policy decisions that Congress has explicitly, if unwisely, delegated to the White House (e.g. Keystone XL, the Mexico City Policy). The second is to clarify or promulgate rules and regulations that are called for, but not clearly spelled out, within the law. And the third is to organize and instruct those parts of the executive branch over which the president has plenary power. As Obama did before him, Trump has lawful control over these areas. If he stays within the law in exercising that control, he’ll remain on solid ground. If he doesn’t, he must be criticized in exactly the same way as was Obama.

As a rule, Obama’s acolytes never seriously engaged with these critiques. Instead, they preferred to snark (“I guess the black guy doesn’t get to be a full president”), to switch from process to outcome (“Why do you hate immigrants?”), or to advance irrelevant defenses (“Obama has issued fewer orders than any recent president”). This, perhaps, is why they are now so confused about how the system is supposed to work.


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