What President Obama’s executive actions mean for President Trump

Executive orders are just one of nearly 30 types of presidential  actions that the president can use to do his job. All presidents have used them — they range from Lincoln’s Emancipation Proclamation to the executive order by Franklin D. Roosevelt that established internment camps for Japanese citizens — but they have become more prevalent in recent administrations as a workaround to gridlock in Congress.

As long as they are constitutional, executive orders have the full force of a law but none of the permanence. Recently, presidents have begun their first day in office by canceling some of their predecessor’s orders. For instance, Obama signed an executive order on his second day in office that revoked one of President George W. Bush’s orders that allowed the CIA to use waterboarding to interrogate suspects. Obama also set new ethics rules for executive branch workers on the day after his inauguration; the rule limits workers from finding work as a lobbyist two years after they leave a government job.

How executive actions have changed

In 2001, now-Supreme Court Justice Elena Kagan wrote an article in Harvard Law Review that defended President Bill Clinton’s use of executive actions. In that article, she outlined how presidents can use their powers to set the national agenda. “Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals,” she wrote.

Researchers say President George W. Bush partly used Kagan’s interpretation to claim prerogative power. This means that under Article 2 of the Constitution, a president could act even when Congress didn’t want him to, according to Andrew Rudalevige, a professor of government at Bowdoin College.

From his first day in office through the end of November, Obama has issued 242 more executive actions than Bush did for his entire presidency. He released fewer executive orders, but more memorandums, which can influence policy in more subtle ways.

Breaking down Obama’s actions

Early in his campaign, President-elect Donald Trump said he would reverse all of Obama’s “unconstitutional” executive orders. But, that could prove more difficult than he imagines — to be revoked or modified, executive orders must be explicitly targeted by their identifying number.

[ Glenn Greenwald: Trump will have vast powers. He can thank Democrats for them.  ]

Among all of Obama’s executive orders, some have far-reaching effects, but Kenneth S. Lowande, a researcher who studied Obama’s executive actions, said “a lot of these things are really mundane.”

It will be more difficult for Trump to revoke Obama’s memorandums, which he used to influence policy in more subtle ways. Memos serve as a way for the president to tell federal agencies how to approach certain policy decisions, often by reinterpreting existing laws.

Unlike executive orders, there’s no complete record of how many memos Obama has issued, since they aren’t counted. Presidents only have to release (and publish in the Federal Register) memos they think are relevant.

[ Fact Checker: Claims regarding Obama’s use of executive orders and presidential memorandums  ]

According to Lowande, it’s likely Obama wrote five to 10 times more memos than the 246 we know about — which is far more than the 131 that Bush released. “I think [Obama] was pretty aggressive in thinking about ways you could apply old laws to new situations and extract the last ounce of presidential preference out of prior laws,” Rudalevige said.

[ Your complete guide to Obama’s immigration executive action ]

Although memorandums can have far-reaching effects, they don’t always work out. Obama released a memo directed at the Centers for Disease Control and Prevention titled “ Engaging in Public Health Research on the Causes and Prevention of Gun Violence” shortly after the Sandy Hook shooting, but without specific congressional funding, no such research occurred. “The agency can just decide it doesn’t want to do it, or delays so much that it doesn’t happen,” Lowande said.

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If policy ideas from a memo do make it into federal regulations following a lengthy notice-and-review process, they cannot be overturned with the swipe of Trump’s pen — his administration would have to follow the same bureaucratic steps. Federal rules can be blocked in court, though. In 2014, Obama wrote a memorandum titled “ Updating and Modernizing Overtime Regulations,” and two years later, the Department of Labor finalized its rule extending minimum wage and overtime to white collar workers. The rule was then blocked by a federal judge in Texas in November. Obama’s memo directing the Environmental Protection Agency to enact carbon pollution standards for power plants led to a rule that is also currently blocked in courts.

Obama also used memos to influence policy in subtle ways. His June 2009 memo instructed all federal agencies to review what could be done to eliminate disparities between same-sex and straight couples. Over time, that directive led to a decision by the Social Security Administration to make it easier to change one’s gender on official government documents.

“At first we thought ‘well great, a memo,’ but then over time what we saw was it really was a call to the bureaucracy to contemplate this part of the population when doing your work,” said Mara Keisling, executive director of the National Center for Transgender Equality. “Suddenly, there was a president saying ‘These are Americans, too,’ and that mattered.”

[ How Obama used a memo to start a quiet transgender revolution ]

How Trump might use executive actions

“At a guess, he’s going to find the idea of the law binding him to be sort of tedious. You may see another effort to expand the scope of what does ‘being commander in chief’ mean,” Rudalevige said of the president-elect. Obama’s habit of reinterpreting existing laws as a vehicle for the policies he wanted to enact could continue in the new administration. “If Trump wants to do something, his lawyers will find a way to tell him it’s legal to do it,” Rudalevige said.

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But Congress is the wild card. Ideally, Trump will be able to work with congressional leaders to get his policy objectives passed with legislation. If not, he could use a variety of executive actions to fulfill campaign promises.

Brandon Rottinghaus, a researcher who studied Obama’s use of proclamations, said Trump could use proclamations to restrict immigration from certain countries or make minor changes to trade policies. Rottinghaus thinks there is one clue as to how Trump will use the orders: The language that Trump uses to declare a traditional national day of prayer during his inauguration could be a sign of how he wants to use the rhetorical powers of the office.