In hindsight, it is evident that challenges to President Trump’s 2017 Executive Order 13769 banning refugee travel had negative implication for national security. Crafted in part due to ongoing litigation surrounding the first EO, Executive Order 13780 and Presidential Proclamation 9645 both superseded Executive Order 13769. In 2018, the Supreme Court upheld the Presidential Proclamation 9645 and its accompanying travel ban in a 5–4 decision (Liptak, 2018). In January 2021, President Biden revoked both Executive Order 13780 and its related proclamations with Presidential Proclamation 10141. A temporary victory for those on the political left, such frequent policy shifts illustrate the need for legislators to actually do their jobs (i.e., legislate) and bring a greater degree of stability to the national policy landscape. Administrative power is profoundly worrisome as it can be a benevolent version of absolute power that may not appear immediately threatening. When presidents become accustomed to issuing binding administrative edicts, they can easily drift into arbitrary and despotic acts (Hamburger, 2014) such as seizure of private property (e.g., EO 6102 on gold seizure) or detaining entire ethnic group (e.g., EO 9066 on Japanese internment).
Federal policy reversals under President Trump and congressional Republicans undid many of the Obama administration’s policies that have subsequently been reinstated by the Biden administration. Policy changes under Trump were accomplished primarily through unilateral executive action, even though Republicans held the presidency as well as both chambers of Congress. This was because ideological divisions within the Republican Party at the time prevented Congress from enacting major legislation. Policy changes on healthcare, immigration, and the environment were made via executive and administrative action. In addition, Democratic attorneys general filed lawsuits challenging Trump administration actions on immigration and clean energy while Democratic governors and state legislators took a variety of other actions to resist Trump administration policies (Rose, 2018).
Institutions like family businesses can take generations to build but can be disadvantaged or even destroyed in just a few seconds when a president scribbles a few lines on a cocktail napkin and declares that it was an executive action. Executive action is especially pernicious because the executive branch was designed to be more nimble than the other two branches in order to quickly respond to serious emerging threats. Additionally, power tends to accumulate in the executive branch over time. To paraphrase Mark Twain, misdirected executive power can efficiently destroy the nation while Congress and the courts are still putting their pants on.
Biden, Joseph. Proclamation on Ending Discriminatory Bans on Entry to The United States. White House (2021). https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/.
Liptak, Adam; Shear, Michael D. Trump’s Travel Ban Is Upheld by Supreme Court. The New York Times (2018).
Roosevelt, Franklin. Executive Order 6102, Forbidding the Hoarding of Gold Coins, Gold Bullion, and Gold Certificates (1933).
Roosevelt, Franklin. Executive Order 9066, Authorizing the Secretary of War to Prescribe Military Areas (1942). https://www.archives.gov/historical-docs/todays-doc/?dod-date=219.
Rose, Shanna. The State of American Federalism 2017–2018: Unilateral Executive Action, Regulatory Rollback, and State Resistance. Publius 48, no. 3 (2018): 319–344.
Trump, Donald J. Executive Order no. 13,769, Code of Federal Regulations, title 3, § 301 (2017). https://www.govinfo.gov/content/pkg/FR-2017-02-01/pdf/2017-02281.pdf.
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