Nov. 23, 2016
At some point early in his presidency, Donald Trump will issue a series of appalling executive orders. I don’t have enough imagination to predict them exactly, other than they’ll be designed to shatter long-established civic norms and will proceed from the deep-seated bigotry that forms the core of the president-elect’s character.
Immediately afterward -- the takes have been pre-written -- a legion of commentators will explain that this is all Barack Obama’s fault.
That’s nonsense. But it’s worth exploring why.
President Obama actively used executive orders and federal rule-making to advance his policy agenda. Therefore, you’ll be told, Trump is simply returning the favor, what goes around comes around, the chickens are coming home to roost, etc. We can hope for, but shouldn’t count on, a little imagination in use of cliche.
Notably, Obama acted unilaterally because Congressional Republicans refused to negotiate with him as a matter of principle while imposing an unprecedented extra-constitutional supermajority requirement on all legislation.
More importantly, there was nothing unusual, illegal, or unprecedented about Obama’s governance. Like all presidents, he acted within a long-established set of legal limitations on executive authority. Congress writes laws that establish federal agencies and grant them discretion to interpret statutes and promulgate rules. That authority is not unlimited--there is an exhaustive set of rules, procedures, and safeguards. And if an outside party feels they have been harmed because the agency has overstepped, it can go to court.
This happens all the time. There is an entire apparatus of administrative law devoted to resolving questions of executive power. Indeed, agencies like FERC and the FTC that regulate large corporations have all nearly of their decisions challenged in court as a matter of course. Federal judges use established doctrine like “Chevron deference” to determine whether agencies have used their discretion properly. There are legions of lawyers and shelves of case law involved.
The Obama administration’s education regulations offer a perfect example of how this works. In the face of rampant fraud and abuse in the for-profit higher education sector, the U.S. Department of Education created new regulations based on the “gainful employment” clause of the Higher Education Act. The trade association representing for-profits filed suit, and a judge threw out the regulations on the grounds that one element was arbitrary and ungrounded in evidence. So the Department went back to the drawing board and amended the rules accordingly. The whole process took six years to complete. It was literally the opposite of swift, unprecedented use of executive power.
Trump will be subject to the same legal limitations, particularly in the DC Circuit, which President Obama managed to populate with appointees before the Senate established its current policy of nullifying the judicial nominating authority the voters granted the president in 2012.
The “Blame Obama” argument persists because some people choose to see policy choices in entirely structural terms. If your heuristic for understanding the world is centered on ideas like “small government is better than big government,” then you see any new regulations as ipso facto illegitimate, an offense that warrants a response.
But President Obama, like most people, doesn’t think that way. His approach balances structural concerns with human rights and broad priorities of social and economic justice. He didn’t regulate for-profit colleges to strike a blow for big government or against the free market. He was trying to solve a specific problem of rampant exploitation and fraud. If there had been a “small-government” solution that would have worked better, he would have chosen it instead. But as is often the case with serious market failures, there wasn’t. Those who can only see Obama and Trump’s executive actions in terms of structure are missing most of what matters about them: their actual effect on real people in the real world. People who are, not coincidentally, far more likely to be economically and socially marginalized than the critics themselves.
President Obama did not create a monster that Trump can blamelessly deploy. President Obama did not establish a precedent that relieves Trump from moral culpability. Trump is to blame for Trump.