Say what you will about Donald Trump -- and there's plenty to say -- but he may be the first president in memory to actively limit his own branch's power. Whatever his intentions on immigration, funding issues, international agreements and the regulatory state, Trump has relinquished executive power.
When President Barack Obama was governing through executive fiat for more than six years, there was precious little anxiety from our elite news publications regarding precedents of abuse or constitutional overreach. Whenever people criticized Obama's overreach, the reaction was to demand that we tally up the number of executive orders signed by the president's Republican predecessors (in those heady days, "whataboutism" was not only tolerated but favored).
Then, as is now, it's an exceptionally silly, or perhaps just exceptionally dishonest, way to contrast presidential records. Bean-counting the sum total of executive orders tells us nothing useful about the effects of those orders; one action could be more consequential than 15, or 50. Most of Trump's executive orders up to this point have been statements of intent, administrative moves or reviews of Obama-era orders.
Moreover, there's nothing improper about executive orders or actions that are derived from the Constitution or meant to implement law. (Trump's order on promoting free speech and religious freedom, for example, didn't go nearly far enough.) But there's plenty wrong with executive orders and actions meant to circumvent those things. Not only did the last administration habitually craft what was in essence sweeping legislation from the ether but it also often framed these abuses as good governance. "Congress won't act; we have to do something" was the central argument of Obama's second term. Every issue was a moral imperative worthy of the president's pen.
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Relitigating the past is often a waste of time. Fixing it is less so. There might be wide-ranging support for the Deferred Action for Child Arrivals program, or DACA, but it was an obvious way to bypass process. Even President Obama, perhaps fearing legal challenges, called DACA "a temporary stopgap" when he first announced it. Trump may end up stepping back from rescinding DACA, but relinquishing power and tasking Congress with the job of substantively changing immigration policy would comport with norms of American governance. Unilaterally doing so would not.
You might also be a fan of the Paris climate accord, but presidents have no business entering into faux treaties of great substance without Senate approval. I have been told many times that the accord is the most crucial international deal the world has ever known. Yet somehow it wasn't important enough to be subjected to the traditional checks and balances of American governance either. Global warming, explained Obama in 2013, "does not pause for partisan gridlock." He might have well have said, "My preferred partisan policy positions should not have to pause for the Constitution."
When Democrats couldn't pass their carbon cap-and-trade plan, the Obama administration instituted a power plan that outstripped the legal authority Congress had afforded the Environmental Protection Agency. If Trump is successful in rescinding these onerous regulations, he will be reinstituting boundaries on the regulatory state. If your goal is inhibiting energy production, then elect members of Congress to pass legislation that does so.
The same arguments can be made for the Trump administration ending the Obamacare cost-sharing reduction subsidies. Obama's Treasury Secretary Jack Lew had ordered the Internal Revenue Service to begin making these payments without ever publicly explaining the legal justification for why. The political justifications, on the other hand, were quite clear: It's a way to hide the costs of Obamacare while keeping the fabricated state "marketplaces" in business. It's difficult to comprehend how anyone honestly believes these payments are constitutional. If American voters believe cost-sharing reduction subsidies are essential, Congress should pass a law appropriating taxpayers' money for insurance companies. If they don't pass such funding, then voters can elect people who will. That's how we have been financing programs in this country for a couple of centuries.
Perhaps this kind of regulatory and executive teeter-tottering is what we can expect in an increasingly divided nation. With organic divisions comes gridlock, and with gridlock comes an enticement to act outside the process. So, one hopes that Trump's nomination of Judge Neil Gorsuch and judges elsewhere who take both separation of power and the dangers of the administrative state seriously will help mitigate some of this future abuse. Who knows? Perhaps many of these changes will be even more important than Trump's ugly tweets. For those who argue that all of this is nothing more than a malevolent effort to sabotage the Obama administration's accomplishments, perhaps there is a lesson to be learned: Your legacy is going to be a rickety mess if you build it using imperious diktats rather than consensus.
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