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For Trump, like most presidents, executive orders are about PR and power

Thomas Fitzgerald, Political Writer

Updated: Tuesday, January 31, 2017, 3:01 AM

White House Chief of Staff Reince Priebus (enter), seen here standing behind President Donald Trump, appeared to pull back one of the most controversial elements of an immigration order that has led to chaos at airports across the country over the weekend.

In just 10 days, the image has grown familiar: President Trump, alone at the HMS Resolute desk in the Oval Office, scrawling his signature at the bottom of yet another leather-bound decree.

On Monday, it was an executive order requiring federal agencies and departments to prune two regulations for every new one issued — perhaps little noticed as the new president continued to battle the political fallout from Friday’s order shutting U.S. borders to refugees and others from seven largely Muslim countries.

The Trump administration has churned out a flurry of instructions to federal agencies in more than a dozen executive actions, most drafted and issued without the customary detailed vetting by government lawyers and the officials who must carry them out. Experts say the actions could contain flaws that may not withstand legal scrutiny or may prove unworkable.

“It’s a way to persuade the public a lot is being accomplished, and for Trump to appear strong and decisive,” said David Vladeck, a law professor at Georgetown University who was a Federal Trade Commission official. “This is PR - he might as well just be signing blank pieces of paper.”

Trump has acted on big campaign promises, one of them to allow building of the Keystone XL and Dakota oil pipelines with American-made materials — though Vladeck said it was unclear if a president has the power to specify how those utilities would be built.

The president also issued actions calling for building a border wall with Mexico, a signature campaign promise, but only Congress has the power to appropriate money to do it even if, as Trump maintains, Mexico will somehow reimburse the United States later. Some GOP lawmakers at their retreat in Philadelphia last week gently raised concerns about the cost of the wall, estimated at up to $20 billion, and its effect on deficits.

Trump signed actions directing federal agencies to do all they can to stop enforcing terms of the Affordable Care Act and to bar U.S. foreign aid to organizations that promote or perform abortions, among others.

Nearly every president has found it handy to use executive power to accomplish some goals, to greater or lesser degrees.

Abraham Lincoln freed slaves in Confederate territory held by Union troops in the 1862 Emancipation Proclamation; the force of arms gave him the power to make it happen. President Franklin D. Roosevelt ordered the internment of Japanese Americans in the early days of World War II. And President Harry S. Truman forced coal miners to stop a strike and go back to work in 1946.

This ability to act unilaterally comes from the vaguely worded “vesting” clause in the Constitution giving all “executive power” to the president; that has come to mean the gritty details of the daily operation of government. A president has broad powers so long as the action is authorized by statute or court precedents.

An executive order is only one kind of action at a president’s disposal. It is a formal, legally binding mandate to all the agencies in the executive branch, published in the Federal Register.

Presidents also can issue an executive memorandum, which also tells federal agencies what to do; these memoranda have the force of law but are not published in the register. Trump has used this option eight times, and President Barack Obama used the option at least 407 times, including to direct the government not to deport American-born children of undocumented immigrants.

FDR, the longest-serving president, wrote 3,721 executive orders, by far the most, according to an analysis by the American Presidency Project at the University of California, Santa Barbara. Woodrow Wilson issued 1,803, and Calvin Coolidge weighed in with 1,203.

John Adams, James Madison, and James Monroe each issued just one executive order. William Henry Harrison, who died 32 days into his first term, wrote none.

More recently, Ronald Reagan issued 381 executive orders and George W. Bush 291. Obama issued 277, an average of 35 per year, which ranks him below average on the presidency project’s list.

In general, the use of executive orders has declined markedly since Reagan, said John J. Hudak, a scholar of the presidency at the Brookings Institution, as presidents have found other ways to work their wills.

“Presidents have gotten a little more creative,” Hudak said. “As the political parties became more polarized and homogenous, executive orders were more politicized.”

Reagan, for instance, was the first to use an executive order establishing the ban on funding for abortion in foreign aid, the so-called Mexico City policy. Democratic presidents since then have issued orders canceling it, while Republicans have put it back in place, as Trump did.

Led by his attorney general, Edwin Meese, Reagan developed a new presidential tool for action: the signing statement, which is attached to a bill signed into law detailing how the administration interprets provisions of the new measure. “That riled his opponents in Congress,” Hudak said. Signing statements were also widely used in the administration of George W. Bush.

Trump’s immigration ban triggered chaos over the weekend, with a number of passengers detained at U.S. airports, which were then besieged by protesters condemning the policy as a violation of American values. It was intended, the Trump administration said, to develop “extreme vetting” to better screen out potential terrorists coming from the countries named in the order.

Trump signed the order as John Kelly, the secretary of homeland security, was learning about it on a conference call as he flew back to Washington on a Coast Guard plane Friday. Customs and border control personnel charged with carrying out the order did not get instructions until early Saturday.

"You have an extreme vetting proposal that didn't get the vetting it should have had," Sen. Rob Portman (R., Ohio) said on CNN. He urged the new president to "slow down" and work with lawmakers on how best to tighten screening for foreigners who enter the U.S.

Republicans long attacked Obama because of his reliance on executive action, and Trump joined the chorus during the campaign. “I don't think he even tries anymore. I think he just signs executive actions,” Trump said at a South Carolina forum in December 2015.

Now that he occupies the chair, Trump has discovered what presidents before him knew: Executive action is a good way to get a point across.

Thomas Fitzgerald, Political Writer

Read full story: For Trump, like most presidents, executive orders are about PR and power

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