Executive Action: Time Limited Progress

Last week, the Colleges of Law hosted a forum entitled “New President, New Policies: What Is the Future of Immigration in the US?” Catherine Tactaquin, Executive Director of the National Network for Immigrant and Refugee Rights, discussed President-Elect Trump’s campaign rhetoric and proposed immigration policies. Because Congress was unable to pass an immigration reform during President Obama’s tenure, he relied heavily on executive orders to create pathways to citizenship. One such pathway, the Deferred Action for Childhood Arrivals—better known as DACA—provides a work permit and deportation reprieve to people who were brought to the U.S. as children and stayed illegally. An estimated 742,000 so-called Dreamers—those given protection under the program—live in the U.S. Roughly one out of three Dreamers lives in California. As a candidate, Donald Trump vowed to cancel DACA, among many other orders that Obama issued.

The discussion was an important reminder of both the power and inherent time limits of executive orders. Their use is controversial. Critics often claim that, by using executive orders, a President has overreached his authority—bypassing Congress to create new laws. Yet every President from George Washington to Obama has used executive orders to create legally binding obligations.

Executive orders have played a critical role in our nation’s march towards the “more perfect union” described in the Preamble to the federal constitution. In their absence, the trajectory of our nation’s civil rights movements would have been much different. How would the abolition of slavery have progressed if not for President Lincoln’s Emancipation Proclamation? How long would segregation have lingered if not for President Truman’s order to desegregate the military or President Eisenhower’s decision to send the National Guard to Little Rock? How far would we have come if not for President Kennedy’s and President Johnson’s decision to use executive orders to prohibit racial discrimination in federal housing, hiring, and contracting?

But executive power is limited—both in scope and in time. As such it is a slender reed on which to balance progress. When the next president takes office he or she can, with the stroke of a pen, wipe away all these gains. The so-called Mexico City Policy provides a potent example. The policy requires all non-governmental organizations (NGOs) that receive federal funding refrain from promoting or performing abortion services in other countries. President Reagan adopted the policy by executive order in 1984; President Clinton rescinded the order when he took office; President Bush reinstituted the order; and, you guessed it, President Obama rescinded it. Given his stated stance on abortion, it is likely that President Trump will reinstate it. Family planning services blink on and off like a traffic light with each new president.

Even if the next president didn’t explicitly rescind particular orders, he or she could simply ignore them. President Bush never explicitly repealed the executive order prohibiting discrimination based on sexual orientation in federal civilian workforce, but he did insert a religious exemption provision and his Special Counsel Scott Bloch argued during a Senate Hearing in 2005 that the order was “unenforceable.” In 2013, a report issued by the Inspector General’s Office concluded that Bloch had decided to reverse these protections before he took office and made doing so one of his “highest and most immediate priorities for action under his direction.” In the end, an executive order has meaning only if an executive is willing to enforce it.

After losing control of the Senate in 2014, President Obama used executive action where possible. President Obama unable to find allies in Congress decided to “go it alone.” In his 5th State of the Union address, he stated: “But America does not stand still, and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.” After that speech, he tackled everything from immigration to policing to minimum wage issues through executive action.

President-Elect Trump has promised to reverse many of these orders, altering the nation’s approach to everything from immigration to environmental issues to the use of torture by U.S. operatives. Executive power is limited—both in scope and in time. Our nation can’t function if after every presidential election the government must change course. There is an important lesson for those who stand on opposing sides of the issues: In the end, bi-partisan compromise and consensus create lasting change.