[politics] Executive Orders

Once again, my faithful and curious non-US friends have asked a pertinent question in an attempt to understand US politics. With the recent “Social Media Executive Order,” it seems a good time to dig into exactly what an E.O. is.

First, if you’d like some background on the current hubbub, hit up this report, or search for “trump twitter executive order” and choose your preferred news source. All the reports I’ve seen are reasonably biased in accordance with their outlets’ usual leanings.

US media tends to assume everyone knows what an E.O. is, and they take a lot of verbal shortcuts when they talk about them, which isn’t always helpful.

Legally, an E.O. is an instruction by the Chief Executive (the President) to their staff. Specifically, to their Cabinet members, who run the entire Federal government.

A key premise of US law is the idea of discretionary enforcement. That is, while Congress gets to make the laws, the President can decide whether or not to enforce them, and even – to a degree – how to interpret them. Obama’s DACA E.O. is a famous one, wherein the President essentially told the Department of Homeland Security (which runs Immigration and Customs Enforcement) not to take action against a certain class of people who weren’t legally in the US. “Don’t enforce this law in this case,” basically.

Since the actual founding of the country in 1776, the Executive has been in a tug-of-war with the Legislature over power, and our national referees, the Supreme Court (SCOTUS) are often called in to arbitrate. The main battles usually come over what constitutes “passing a law” versus “interpreting a law.”

In the case of Trump’s “Social Media E.O.,” the Executive has instructed the Federal Trade Commission (which is an independent agency created by Congress, not part of the actual Cabinet) and other Federal agencies to ignore certain protections afforded to Internet service providers. In essence, we have a law that says, “hey, if you use your Cox internet service to say illegal things, Cox isn’t responsible.” The intent of the law is to encourage free speech by assuring providers that they won’t be held liable, thus removing their desire to censor your speech. Because they’re not liable for your speech carried on their service, they’ve no grounds to edit that speech, and so if they do edit that speech, you can sue them. So goes the theory. In any event, the law includes platforms like Facebook and Twitter, who “carry the voice of their users.” The Trump E.O. reinterprets that definition.

This is always sticky territory for an E.O., honestly, and Trump isn’t the first President to try it bye a long shot. Generally, although they’ve been far from universally consistent, SCOTUS feels that changing a law is Congress’ domain. So, if a law says, “service provider,” and the President interprets that as “internet service providers but not online platforms,” they can often get away with it. But if the law says, “service providers, including online platforms where users post their content,” the President doesn’t get to drop half of that definition on a whim. I suspect we’ll see this current E.O. wind up in front of SCOTUS, who seems to spend half their time refereeing between the other two branches anymore.

The administration doesn’t have a strong leg to stand on, legally. Because Trump’s E.O. directly followed Twitter slapping a “might be a false statement” badge on one of his tweets, and because Trump immediately retaliated, it’ll be argued that animus came into play. Basically, “this E.O. has passed specifically as revenge,” and courts tend to take a dim view of that.

E.O.s have the force of law, in that the entire Executive branch is bound by them. That is, the people who enforce and execute the laws are bound by an E.O., just as they’re bound by the laws Congress writes. In general, Congressional law wins in a battle with an E.O., but the authors of E.O.s (always lawyers, almost never the Executive themselves) are pretty careful to avoid direct conflict.

Lots of folks argue that E.O.s shouldn’t exist. Thing is, the Executive is always going to give directions to their staff, and because the staff works for the Executive, those directions are going to stick. At the end of the day, Congress could obviate E.O.s by being more specific, and by, you know, actually passing laws instead of posturing all the time. E.O.s serve an important function in letting an Executive respond quickly and flexibly, but they also, arguably, usurp at least some of the power that was meant for the legislature. After all, if you have one guy (or gal) making the rules and enforcing them, isn’t that a monarch? Or a dictator?

But E.O.s aren’t rare. Not even a little. We use ’em a lot. Washington wrote 8 of the things. FDR wrote over 3,500. Obama 276, Bush II 291. Trump’s only at 159, so he’s actually trending a bit ahead of the curve (he’s in his first term; Obama and Bush II had two terms each). But Clinton wrote 308, Reagan 381… but man, FDR. Record-winner.

Anyway, E.O.s have been used to positive effect and negative, although most of them are pretty unremarkable. Racial integration of the military was an E.O.: the President (Truman at the time) is the Commander-in-Chief, and he can order the military to do pretty much anything. Desegregation of schools was another (Eisenhower).

Some academics point out that it’s sometimes easier for Congress to let a President do things via E.O. that risk their own elections; Presidents don’t get called to account for E.O.s all that much in an election cycle. I mean, with FDR, who’d have had time? So Congress can kind of step back and let the President do whatevs, and only step in when they’re especially motivated. In the past few decades, Congress’ role has started to shift away from legislating as much, and toward more “executive oversight,” which makes for awesome political theater and is probably a huge PITA for the Executive.

E.O.s are more… agile, in ways both good and bad. What one President Orders, another can un-Order, and so the “law” kind of whiplashes back and forth depending on who’s in charge. Congressional laws, given how hard they are to get passed in the first place, tend to be a tiny bit more stable.

Anywho: if you’ve been wondering what an E.O. is, there you go. It’s a weird, probably unavoidable, sometimes beneficial element of the US legal system (state Governors issue them too, by the way), and part of the delicate balance of powers that exist between our government’s three branches.