100 Days and nothing to show for it...

Trump's Executive Orders Are Mostly Theater

The president knows how to stage a photo op, but so far his signature hasn't changed much.

By MICHAEL GRUNWALD

President Donald Trump signed his first executive order on his first day in the White House, taking aim at his predecessor’s signature achievement. “Trump Signs Executive Order to Roll Back Obamacare,” Forbes reported. He’s gone on to sign more executive orders in his first 100 days than any president since Franklin D. Roosevelt, and his aides, his critics, and the media alike have portrayed them as dramatic assaults on the status quo. “Trump Moves to Roll Back Obama-Era Financial Regulations,” the New York Times declared after one. “Trump Executive Order Will Undo Obama’s Clean Power Plan,” USA Today reported after another.

But 99 days into his presidency, Trump’s high-profile orders have not actually undone Obama’s health reforms, financial regulations, or carbon restrictions. They’ve merely allowed him to announce his intentions to undo those policies in official documents. Trump’s first 30 executive orders will create a lot of federal reviews and reports, along with some new task forces and commissions, but not a lot of substantive change. So far, they’ve been more about messaging than governing, proclaiming his priorities without really advancing his priorities.

The White House is making Trump’s flurry of executive orders the centerpiece of his 100-day legacy, in part because he hasn’t yet signed any major new laws or made much specific progress on his Make America Great Again policy agenda. And his orders have echoed his rhetoric about trade, regulations, crime, and other policy issues, which has given them the appearance of promises kept. But a close look at the language of his orders shows that most of them are basically press releases with presidential signatures, plus instructions to his Cabinet secretaries to look into the issues at hand.

Trump’s order on reorganizing the government simply directed his budget director to devise a plan for reorganizing the government. His order on the opioid crisis set up a commission. His orders on rebuilding the military, streamlining permits for manufacturers, and preventing violence against law enforcement instructed Cabinet secretaries to devise plans to achieve those goals—which they were presumably supposed to do anyway. His orders on trade deficits, drug cartels and burdensome tax regulations called for reports on those issues, essentially homework assignments issued on national television. Yesterday, as he signed an order regarding aluminum imports, he complained that foreign dumping was destroying the U.S. industry. But his order—like a similar one he signed last week about steel imports—did not impose any retaliatory duties; it just called for expediting an ongoing investigation of the issue.

This has become a predictable pattern, especially as the 100-day milestone has approached and the White House has been on the prowl for quick victories. On Wednesday, Trump held an Oval Office ceremony to sign an order he hailed as a blow against federal control of education, even though it merely directed his education secretary to make sure her department’s regulations comply with existing laws prohibiting federal control of education. That same day, Trump signed an order that he declared would “end another egregious abuse of federal power,” Obama’s designation of 265 million acres worth of national monuments. But the order didn’t end anything; it assigned a review and a report. Today, he’ll sign an order “Implementing an America First Offshore Energy Strategy,” which will mostly be another review of Obama's offshore drilling restrictions--although the White House believes it can immediately reverse some of Obama's restrictions in the Arctic, a move that will surely invite more lawsuits.

Meanwhile, Trump’s most sweeping order, a ban on travel to the United States from several Muslim nations—which really did try to change policy—is still on hold, because judges ruled both the order and then a rewritten version unconstitutional. On Tuesday, another judge blocked a section of another Trump order denying federal funding to sanctuary cities.

In the sanctuary city case, the judge noted that the administration had made a rather unusual defense, claiming the executive order was “merely an exercise of the President’s bully pulpit” rather than a genuine effort to alter public policy. This argument that Trump was just posturing rather than truly ordering, apparently unconvincing in court, could apply to many of Trump’s other theatrical decrees. “They’re dog-and-pony shows,” said one Trump administration official. “It’s what you do when you can’t do anything else.”

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One irony behind Trump’s record-breaking use of executive orders is that Republicans—including Trump—routinely attacked Obama’s use of executive orders as an outrageous abuse of power. “Our country wasn’t based on executive orders,” Trump complained in a CBS interview last January. Trump even accused Obama of resorting to unilateral executive orders because he was too lazy to negotiate bipartisan legislative compromises: “He doesn’t want to work too hard,” Trump said on CNN. “He wants to go back and play golf.”

After Trump was elected, many Republicans changed their tune. They assumed he could swiftly reverse much of what Obama did, by reversing Obama’s executive orders with orders of his own, and many pundits assumed that, too.

But it wasn’t true that Obama did most of his governing by fiat, which is why Trump hasn’t been able to reverse most of Obama’s policies by fiat. Obama’s health care and Wall Street reforms are laws enacted by Congress, and the Republican-controlled Congress has not managed to pass new laws to replace them. Obama’s Clean Power Plan limiting carbon emissions was a rule enacted by the EPA, so Trump’s EPA will have to go through a new rulemaking process to rescind or even revise it, a process cluttered with legal, scientific, and bureaucratic obstacles.

It’s much harder to eliminate federal rules than it is to order reviews of federal policies, and it’s even harder for the public to tell which is happening from a White House photo op. Trump did sign one order calling for a review of a specific Obama wetlands rule, trashing it at the ceremony as “a very destructive and horrible rule.” But rules are rules, so he could not simply scrap it, even though The Washington Examiner reported: “Trump Executive Order Scraps EPA Water Rule.”

Still, the event had the feel of action taken and a promise kept. On Tuesday, Trump signed another order “Promoting Agriculture and Rural Prosperity,” abolishing Obama’s White House Rural Council and replacing it with a new task force that’s supposed to recommend new policies to help rural America. This is the kind of thing most presidential candidates do during their campaign, when they’re laying plans to take real action in office. But Trump got a nice Oval Office photo op, surrounded by farmers and ranchers, and his new task force—which will consist of almost his entire Cabinet—will produce a report for him in 180 days. Trump recently signed another order to “Promote Excellence and Innovation at Historically Black Colleges and Universities,” which revoked a similar Obama order and moved a small office dealing with black schools—which President George W. Bush had moved from the White House to the Education Department—back to the White House. Again, Trump got himself a campaign-quality action shot in the Oval, surrounded by black college presidents.

The president clearly enjoys signing orders at his desk as the cameras roll—he holds up the signed documents to his left, center and right to give photographers better angles—and he has an obvious political interest in exaggerating their importance. His critics on the left often exaggerate their importance, too, hoping to fire up grassroots opposition. The liberal activist Van Jones tweeted that Trump “just signed a death warrant for Planet Earth” with his order launching a review of the Clean Power Plan, which wasn’t even necessarily a death warrant for the Clean Power Plan. Last week, after Trump signed orders denouncing two provisions in Obama’s financial reforms—“That’s a biggie,” he crowed after signing one of them—the group Public Citizen’s press release was headlined: “Trump Executive Orders Signal Salad Days for Wall Street.” In reality, Trump hadn’t touched the provisions; he had merely directed his Treasury secretary to file reports on them within 180 days.

Just because Trump’s orders have been wildly overhyped does not mean they’re all toothless. He did use an executive order to reinstate the “global gag rule” that denies U.S. foreign aid to overseas groups that provide abortions. He also reversed Obama’s rejection of the Keystone pipeline, although the pipeline still needs permits in Nebraska before it can get built, and he jump-started the Dakota Access pipeline. He also used an order to establish ethics rules for his administration, even though ethics experts say they’re riddled with loopholes.

Even presidential orders that are mostly about sending a message can have substantive impacts, because agencies tend to notice messages from the president. Trump’s Day One order directing agencies to minimize the economic burdens of Obamacare had no immediate effect on public policy, but the IRS later cited it to justify a policy decision that will relax enforcement of Obamacare’s individual mandate. That could have a serious effect on insurance markets, since the young and healthy consumers that insurers are desperate to attract will be more likely to forego insurance if they’re not worried about potential tax penalties. And even though Trump couldn’t undo Obama’s restrictions on coal-plant pollution, wetlands destruction or offshore drilling with a stroke of his pen, his orders sent a clear message to regulators that he doesn’t want vigorous enforcement of those rules.

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A handful of Trump’s orders have included potentially consequential policy moves hidden behind the executive-action political theater. Trump’s climate order didn’t really undo Obama’s Clean Power Plan, but it did rescind Obama’s moratorium on leasing public lands for coal mining, as well as Obama’s orders incorporating climate dangers into military planning and environmental reviews. Similarly, Trump’s “Buy American, Hire American” order, highlighted as a victory for U.S. workers on the White House website devoted to Trump’s 100 days, merely directs agencies to “scrupulously monitor, enforce, and comply with Buy American Laws,” and assigns a report on how to strengthen implementation, a daunting challenge under World Trade Organization rules. But an unheralded Section 5(b) of the order demanded recommendations for reforms to the H-1B visa program that brings 85,000 foreign workers to the U.S. every year, and specified the reforms should “help ensure visas are awarded to the most-skilled or highest-paid” applicants. That would be a significant policy shift, and it has a much better chance of happening.

In fact, immigration is the policy area where Trump’s executive orders are having the most impact, even though his travel ban and now his sanctuary cities restrictions have been hung up in court. That’s because he didn’t need to change any laws or rules to launch a crackdown on illegal immigration, which was already illegal, or to start pursuing undocumented immigrants without criminal records, who were already unauthorized to live in the United States. After Trump signed orders on border security and immigration enforcement, the Department of Homeland Security issued “implementation memos” that reversed Obama’s policies of turning a blind eye to most non-criminal aliens and reuniting undocumented children with their families in the U.S. The era of catch-and-release is over; arrests at the Mexican border have dropped by two thirds, while arrests of non-criminal aliens inside the U.S. have more than doubled. Trump sent a message, and federal border and immigration agents have gotten the message.

Trump has also devoted several executive orders to reducing regulatory burdens, and even though he can’t just erase rules he doesn’t like, he is setting up obstacles to new regulations and sending messages to the bureaucracy to try to kill existing regulations. His orders will require the repeal of two rules for every new rule, install “regulatory reform officers” and “regulatory reform task forces” to identify targets at every agency, and limit the overall cost of any new 2017 rules to zero. “This is the beginning of a whole new way of life that this country hasn’t seen in really many, many years,” Trump said at one of the signing ceremonies.

Real regulatory reform could bring real change to agencies overseeing the environment, worker safety, consumer protection and other functions of the regulatory state. But reducing regulatory burdens will be a brutal slog. The EPA just began soliciting public input on potential rules it could roll back, and it has already received more than 33,000 comments, almost all of them opposed to rolling back any rules. When Trump’s EPA appointees do start trying to convert his rhetoric into action, they’ll have to persuade hostile EPA career staff to help him undo their own work. “You have no idea how hard it is to get EPA folks to move—and they actually wanted to help us!” one former Obama aide told me. And once Trump’s EPA does start trying to undo rules, environmental groups will file barrages of lawsuits to try to stop it.

The real lesson of Trump’s executive orders—really, of his entire first 100 days—is that getting things done in Washington is harder than it looks, and way harder than Trump made it sound on the campaign trail. He may not like Obama’s use of a law from the 1950s to block offshore drilling in the Arctic, but it’s not clear whether he can do anything about it unless he can get Congress to pass a new law. If he really wants to fix or scrap Obama’s “fiduciary rule” requiring financial advisers to serve the best interests of their clients, his order launching a review of the rule isn’t going to cut it. His labor secretary will need to do an Advance Notice of Proposed Rulemaking, then a Proposed Rule, and eventually a Final Rule—followed by inevitable litigation and political squabbling.

It’s much easier to sign some paper and declare victory, like Trump did when he signed orders on trade deficits and trade enforcement on March 31. “From now on, those who break the rules will face the consequences, and they’ll be very severe consequences,” he declared. As usual, he was just assigning reports and plans with a lot of sound and fury, and as usual, he got the headlines he wanted. “Trump Tackles Trade Abuses Ahead of Meeting With Chinese President,” CNN reported.

Messaging isn’t the same thing as governing. Activity doesn’t always reflect accomplishment. But they often look similar from a distance, and Trump’s presidency so far amounts to a bet that most of the public can’t tell the difference.