- The Washington Times - Tuesday, August 11, 2020

President Trump, who criticized President Obama as ineffective four years ago for relying heavily on executive orders, is increasingly wielding his presidential pen for tax relief, lower drug prices and other agenda items as the election nears.

With five months remaining in his term, Mr. Trump is on pace to exceed Mr. Obama’s total number of executive orders issued in the Democrat’s first term. Mr. Trump has signed 179 executive orders; Mr. Obama issued 185 in four years, according to the Federal Register.

When Mr. Trump was running for president in March 2016, he characterized Mr. Obama’s frequent use of executive orders as proof of his inability to work with Congress.

“Obama, because he couldn’t get anybody to agree with him, he starts signing them like they’re butter,” Mr. Trump said at the time. “So I want to do away with executive orders for the most part.”

Mr. Trump signed one executive order and three memorandums — also in every president’s toolbox — last weekend to bypass Congress in stalled negotiations over coronavirus aid for the unemployed and struggling workers.

The National Taxpayers Union said Tuesday that Mr. Trump’s actions “raised a host of questions about both legality and separation of powers.” The group’s analysis said Mr. Trump’s executive action expanding unemployment insurance could encounter legal trouble.

DOCUMENT: Wielding the pen

National Taxpayers Union policy and government affairs manager Andrew Lautz said the president’s memorandum redirecting money from the Federal Emergency Management Agency’s disaster relief fund for unemployment benefits “runs contrary to the administration’s broad deregulatory focus and to recent legislative and regulatory interpretations” of the 1988 Stafford Disaster Relief and Emergency Assistance Act.

Republican strategist Ron Bonjean said he expects voters will credit Mr. Trump for taking action to help them in a crisis, regardless of possible legal challenges and the president’s past criticism of executive orders.

“In the absence of Congress being able to function and come to a deal, voters are going to see President Trump coming to the rescue, helping them make ends meet,” he said.

White House press secretary Kayleigh McEnany said Mr. Trump’s executive actions last weekend were “a lot different” from executive action taken by Mr. Obama, for example, on granting deportation amnesty for young illegal immigrants in 2012.

“President Barack Obama utilized executive order to push forward a policy that he denied he had the right to push forward 23 times on DAPA and on DACA,” she said, using the acronyms for programs on deferring deportations. “He said at least 23 times, ‘I don’t have the power to do this,’ and then he went on to do just that.”

(Politifact says Mr. Obama made comments to that effect 17 times, including this one in February 2013: “The problem is that I’m the president of the United States. I’m not the emperor of the United States. We have certain obligations to enforce the laws that are in place, even if we think in many cases the results may be tragic.”)

Ms. McEnany also said Mr. Trump signed the bipartisan, landmark $2.2 trillion CARES Act in March that brought pandemic relief for Americans. She noted that Mr. Obama signed the $800 billion-plus American Recovery and Reinvestment Act in 2009 after it passed Congress without a single Republican vote.

“This president managed to push the CARES Act through divided government — a very big accomplishment,” she said.

Even some Republicans say Mr. Trump is pushing executive authority to its limits in an election year and that his reelection would banish whatever qualms remain in the White House about using those powers.

“Executive orders are very useful for him,” said a Republican Party operative. “It shows that he’s trying to help solve problems that directly impact voters between now and the election. Obviously, it is hypocritical on one level, because Obama had done this. But it wasn’t in a national emergency with millions of people wondering if they are going to have food on the table.”

This person said of Mr. Trump, “If he wins the election, it’s going to be unbridled. He’s going to do whatever he wants.”

The president met two weeks ago at the White House with John Yoo, a Justice Department official in the George W. Bush administration, to discuss the theory of expanded presidential power and Mr. Yoo’s new book, “Defender in Chief: Donald Trump’s Fight for Presidential Power.”

Mr. Yoo told The Washington Times in an interview last month that the Supreme Court’s majority ruling in June upholding DACA essentially gave presidents broader executive power.

He said the court ruled that a subsequent administration could not quickly reverse Mr. Obama’s decision to not enforce certain immigration laws, so presidents have authority to take a wide range of actions and keep them in place for years while legal battles play out.

Mr. Obama created Deferred Action for Childhood Arrivals by signing a presidential memorandum, an executive tool he used at least 407 times in eight years, including on gun control. Memorandums are not executive orders and do not need to be submitted to the Federal Register and therefore can be harder to track. Presidents traditionally use memorandums to give orders to Cabinet secretaries.

Executive orders have the force of law, on the executive branch only.

Presidential proclamations are often directed at citizens instead of government officials and are used for ceremonial purposes without legal effect, but they can have far-reaching impact. Mr. Trump used a presidential proclamation in late May to bar entry to certain Chinese students affiliated with universities connected to the Chinese military. The move was later rescinded.

Mr. Obama issued 505 proclamations in his first term, according to the American Presidency Project at the University of California, Santa Barbara. Mr. Trump has issued 478 proclamations so far.

Senate Majority Leader Mitch McConnell, a Kentucky Republican who also criticized Mr. Obama’s use of executive orders, said unilateral action by the president “is not the first choice of anyone.”

“It’s the only tool he has left to him in the absence of an agreement with the Democrats,” Mr. McConnell said of Mr. Trump on Fox News. “I applaud the president for rising to the occasion during this emergency.”

Mr. McConnell said Congress is in a “stalemate” over reviving talks to produce another round of coronavirus aid. He accused Democrats of pushing for a “trillion-dollar slush fund” for states and cities.

“Americans are dying. This is not a Washington game; it’s a national crisis. It would serve the nation better if the Democratic leaders would act like it’s a crisis,” he said.

Senate Minority Leader Charales E. Schumer, New York Democrat, said Republicans refuse to negotiate.

“Meet us in the middle. They said no,” Mr. Schumer said.

Carl Tobias, a law professor at the University of Richmond, said increasing gridlock in Congress is making broader use of executive actions more likely.

“As Congress has gotten more partisan and politicized and less able to do anything, especially on the Senate side, the president is filling the vacuum,” Mr. Tobias said.

He said Mr. Trump’s latest moves are “a distinct finger in the eye of Congress, because it couldn’t be clearer in the Constitution who has the authority to fund these measures. I think it’s unfortunate because he’s overreaching in ways that upset the balance of power and, in the longer term, I don’t think that’s good.”

Alex Swoyer contributed to this report.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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