SALT LAKE CITY — President Donald Trump has used executive orders to tackle some of his most notable policy items, including the ban on travel from seven Muslim-majority nations and his 2017 decision to withdraw from the Trans-Pacific Partnership.
But the one that perhaps has galvanized the nation most profoundly is his executive order declaring a national emergency at the southern border, in an attempt to free up funding for the border wall.
Much attention has been focused on the Senate vote on the House-approved resolution disapproving of Trump’s national emergency, and how the vote is a key test of Republican Party loyalty.
But some politicians and pundits have said that the significance of Thursday’s vote goes far beyond partisan politics. Indeed, some say the debate over Trump’s emergency declaration could define a question at the heart of the American democratic system: what should be the reach — and the limit — of a president’s executive power?
The Deseret News spoke to a presidential historian, a senator, and a U.S. ambassador to get their takes on what Trump’s emergency declaration says about the current state of American democracy, and what kind of precedent the emergency declaration could set for future presidents of the United States.
Path paved by previous presidents
Trump’s executive orders have dominated headlines throughout his term, but Margaret O'Mara, professor of history at the University of Washington, says the liberal use of executive orders by presidents is nothing new.
“The majority of executive orders are not newsmaking,” said O'Mara. “But they have been made at moments when presidents know Congress won’t act on an issue, and also as a way to kind of pave the way for later legislative action.”
For example, Franklin Roosevelt issued an executive order prohibiting racial discrimination in war industries in response to pressure by civil rights leaders. Similarly, Harry Truman issued an order to desegregate the military after mounting public pressure. Because he knew he couldn’t get southern Democrats on board in Congress, Truman acted unilaterally by executive order.
But things changed post-9/11, said O'Mara. She says imminent security concerns, combined with a polarized and divided government, promoted a growth in the frequency and magnitude of executive orders.
“After 9/11, the executive branch gets more power, period,” she said, particularly legislative power, such as the authorization of the Patriot Act by executive order.
When Barack Obama took office, O'Mara says he not only inherited the expanded presidential powers carved out in the George W. Bush administration, but also faced a Congress “just determined to say no to everything he wants to do.”
She says Obama’s workaround was to use executive orders to get most things he wanted done — setting a precedent that Trump subsequently inherited.
“Democrats cheered this when Obama was doing it, but what Obama did was create this precedent for the consolidation of power that Trump now follows on,” she said. “The Democrats are concerned about too much executive power resting in the Oval Office and Trump doing things unilaterally. But this path was paved by previous presidencies.”
She says, however, that Trump’s specific use of an executive order to declare a national emergency to get border wall funding is a departure from the past.
“I think there is a real divergence between what Trump is doing and what his predecessors have done. ... His predecessors have invoked national emergencies, but it has often happened in the context of war or health epidemics such as the swine flu,” she said. “He has turned the instrument of a national emergency into something more sharply partisan than it has been in the past.”
Congress 'to blame'
According to Utah Sen. Mike Lee, Trump’s use of an executive order to declare a national emergency is indicative of two important, interrelated problems: first, the fact that Congress has given too much power to the executive branch; and second, what he describes as a toothless nature of the 1976 National Emergencies Act.
“If Congress is troubled by recent emergency declarations made pursuant to the National Emergencies Act, they only have themselves to blame,” Lee said. “Congress gave these legislative powers away in 1976 and it is far past time that we as an institution took them back.”
He says when the National Emergencies Act was first passed, it contained within it a legislative veto, allowing Congress the ability to overturn a state of emergency declared by a president. But he says seven years later, the law was challenged in court, and it was declared that such a legislative veto was not constitutional.
What that means is that the way the National Emergencies Act is now written gives too much power to the president and doesn’t allow the legislative branch to have a real check on presidential authority.
While Congress can write a congressional resolution of disapproval, if that resolution is vetoed, it must muster a nearly impossible two-thirds vote to overturn the president’s veto.
“It’s a fake check,” Lee said. “Because unless you have a Congress with enough votes to overturn the president’s veto of Congress' resolution of disapproval, then the president is going to prevail and whatever action he’s chosen to take will remain in effect in full force.”
He says that isn’t what the authors of the National Emergencies Act intended.
“When Congress put the National Emergencies Act in place in 1976, they never really intended to tie this much power without Congress keeping its foot in the door,” he said.
On March 12, Lee introduced a bill to curb the president’s power to declare a national emergency.
"If we don’t want our president acting like a king, we need to start taking back the legislative powers that allow him to do so," Lee said.
The bill, called the Article One Act, would "take back significant legislative powers" given to the executive branch by law, according to a press release issued by Lee's office. Currently, Congress is able to cancel an emergency declaration only by passing a resolution with enough support to withstand a presidential veto.
Under Lee's proposal, if a president were to declare a national emergency, Congress would have to approve it within 30 days or it would automatically expire.
“Congress is the problem," he said. "It’s happened gradually over the last eight years. Congress has systemically, deliberately, and for the political convenience of members of Congress has delegated out far too much power. And Congress needs to reclaim that power.”
On March 12, Vice President Mike Pence reportedly discussed a deal with Republican senators in which Trump would sign Lee's legislation reining in his power to declare future national emergencies in return for the GOP voting against the resolution overturning Trump's emergency declaration.
But by March 13 the deal had seemingly collapsed. During a GOP lunch Wednesday, Trump called Lee and told him he opposed that proposal, The Associated Press reported.
"There's been numerous efforts to engage with the vice president and the president, and the president's not persuaded that he should support it right now," Sen. John Cornyn (R-Texas), who advises GOP leaders, told The Associated Press. "I don't know of any president that likes to give up power."
Lee said Wednesday that because his own bill now lacks "an immediate path forward," he will now support the resolution canceling the border emergency, according to The Associated Press.
With Republicans controlling the Senate 53-47, only four GOP defections would be required to approve the measure. As of Wednesday, Lee was the fifth.
One shouldn’t ignore the implications of Trump’s use of executive orders on foreign policy, says Ryan Crocker, who has served as U.S. Ambassador to Afghanistan, Iraq, Pakistan, Syria, Kuwait and Lebanon and is a recipient of the Presidential Medal of Freedom.
Crocker says over time, it has become increasingly difficult to get international agreements through Congress.
“I can’t remember the last time we ratified a treaty,” he said. “For years, we’ve been doing foreign policy by executive order.”
Crocker says he negotiated complex bilateral agreements in Iraq relying on executive orders. He says the Iraqis raised the question — what guarantee do we have that the next president won’t simply overturn whatever the previous president decided by executive order?
“My answer was that that had never happened. Years full of executive orders on international issues, and not a single one of any significance had ever been overturned by a subsequent president.”
But he says Trump’s decision to overturn some of Obama’s executive orders has delegitimized the authority of foreign policy decisions carried out by presidential action, which he says could have far-reaching implications, potentially impacting the ability of the United States to negotiate nuclear disarmament agreements or even to ensure the safety of American troops deployed around the world.
“What that means is it’s going to be way, way, way harder to get any kind of international agreement by executive order,” he said. “So it’s gonna make life a lot more complex and considerably more dangerous for us.”
Crocker says he is particularly concerned about the implications of Trump’s use of an executive order to declare a national emergency.
“I’ve spent a career in a region that is known for its emergency laws,” said Crocker. “When the going gets rough somewhere in the Middle East, the head of state will often proclaim a state of emergency.”
A state of emergency declared in 1967 in Egypt, says Crocker, was used to suppress domestic activities such as free speech. These declarations can often last for decades: the state of emergency in Egypt is still in effect today, despite the resolution of the crisis with Israel that justified the emergency declaration in the first place, he said.
“It bothers me significantly that we now have a president who is sounding like a Middle East autocrat,” said Crocker.
Crocker says the country's divided government and legislative gridlock is to blame for the increased power of the president, and that both Obama and Trump have used executive orders liberally because it's the only way they have been able to get anything done, he says.
"Trump criticized Obama for his blizzard of executive orders, and it was a blizzard, but Trump's doing the same thing, because that is the only way he can govern, just as it was the only way Obama could govern," he said.
But he says that the climate of gridlock gives way to a culture of government that "puts extraordinary power in the hands of the president, in a way not envisioned at all by the writers of the Constitution or its subsequent amendments."50 comments on this story
Crocker says he does see a potential upside to Trump’s executive orders, particularly his emergency declaration, in that their controversial nature has forced policymakers and the public to grapple with questions around presidential authority and overreach.
“I’m actually pleased that President Trump has pushed things as far as he has,” said Crocker. “Because this is going to wind up eventually in front of the Supreme Court, and that may be what our democracy has to have to get some resolution on this issue.”