PHILADELPHIA—There were few things that infuriated congressional Republicans more during Barack Obama’s eight years in the White House than the words “a pen and a phone.” They were shorthand for the president’s aggressive use of executive authority to go around a recalcitrant Congress and achieve his priorities unilaterally, whether on immigration, climate change, or how his administration implemented the Affordable Care Act.
Republican leaders denounced Obama as “lawless.” They tried to stop him legislatively, and when that didn’t work, they sued him.
Now President Trump is pursuing a version of the same strategy. Unwilling to wait for the GOP-led Congress to send him bills to sign, Trump has signed a blizzard of directives during his first week in office to unwind the health insurance law, restrict immigration, construct a Southern border wall, and more.
So is Trump engaging in the same kind of “pen and phone” overreach as Obama did?
“Quite the opposite,” argued House Speaker Paul Ryan on Thursday as he briefed reporters at the GOP’s policy retreat in Philadelphia. Trump, he said, was merely reversing orders that stretched the president’s power in the first place.
“Everything that President Obama did by executive order, this new president can undo,” Ryan said. “He’s restoring the proper balance, and in our opinion, he is undoing a lot of damage that was done by the last president, who exceeded his power.” Majority Leader Kevin McCarthy took the same position earlier Thursday in an appearance on “Fox and Friends.” “It’s not hypocritical at all,” McCarthy said. “Pretty much what President Trump is doing is undoing President Obama’s executive orders and taking us back to the Constitution.”
Yet that is not exactly what Trump is doing. If it was, his executive orders would simply rescind or reverse specific actions or directives of the Obama administration. But the Trump orders are far broader than that. His directive on the Affordable Care Act, for example, gives Cabinet secretaries and agency heads wide latitude to roll back enforcement of the law. And his order on immigration threatens to withhold funds from so-called sanctuary cities that refuse to cooperate with the federal government on immigration enforcement.
That’s not to say that Trump is exceeding his presidential power any more than Obama was. The executive branch generally has significant flexibility in how it chooses to implement and enforce laws passed by Congress, and the orders Trump signed all cite authority granted by specific statutes, just as the Obama administration did. And like the earlier actions, Trump’s orders could be subject to court challenges accusing the president of going too far. Presidents of both parties have asserted broad executive powers in recent decades, and Democratic leaders similarly howled much louder when George W. Bush acted unilaterally than when Obama did.
Republican leaders will face a bigger test if Trump signs an executive order seeking to revive the use of torture on suspected terrorists, which legal experts believe would require an act of Congress. In comments over the last two days, several GOP leaders have said they consider the ban a matter of settled law, given that lawmakers overwhelmingly approved language banning torture by limiting interrogation techniques to those allowed by the Army Field Manual. “Torture is not legal, and we agree with it not being legal,” Ryan said.
It’s hard to see Republicans in Congress taking Trump to court as they did Obama. Yet Senate Majority Leader Mitch McConnell signaled that lawmakers would not simply relinquish their concerns about the separation of powers just because they have a GOP president in office—especially when it comes to spending money. “Most members don’t like being completely irrelevant,” he warned on Thursday. And just as Republicans didn’t want to give the Obama administration “a blank check,” McConnell said, “we don’t want to give this one a blank check either.”
The money fight will come later. On executive authority, however, Republicans are giving the new president an early pass.