According to Vice-President-elect Pence, “We’re working now on a series of executive orders that will enable that orderly transition to take place even as Congress appropriately debates alternatives to and replacements for ObamaCare.”
This talk about using executive orders to assure an “orderly transition” is a bit confusing. An E.O. has legal force “only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.” Authority to implement the ACA, however, is vested in the Secretaries of HHS, Treasury, and Labor—not the President. In the context of the ACA, an executive order won’t be anything more than a document containing a president’s instructions to his subordinates.
That’s why, as Tim Jost details here, President Trump can’t use E.O.s to change the rules that have been adopted to implement the ACA. To do that, agency officials would have to undergo cumbersome rulemaking processes. Guidance documents are easier to withdraw and amend, but an E.O. probably can’t do the job (although strong proponents of the unilateral executive might argue otherwise). Instead, the E.O. would instruct Secretary Price or Secretary Mnuchin to withdraw or amend the guidance that their predecessors adopted.
So if the E.O.s won’t have legal significance, what’s going on? One possibility is confusion. When he says “executive orders,” maybe Pence really means “executive actions,” by which he means actions taken by executive branch officials. Maybe we won’t see any real “executive orders” at all.
But I don’t think that gives the incoming administration enough credit. It’s true that President Trump doesn’t need an E.O. to tell Secretary Price to reconsider the rules governing contraception coverage or essential health benefits. He can issue instructions in all sorts of other ways: in meetings, memos, press conferences, telephone calls, or even tweets.
Yet executive orders have three distinctive features that make them attractive to the incoming president. First, they are public, which enables Trump to signal that he’s following through on his campaign promises and that he wishes to be judged on that. He can then take political ownership of what his agencies do, for better or for worse. (Then-Professor Elena Kagan elaborated on this point in Presidential Administration.)
Second, executive orders are formal, allowing the President to communicate to stakeholders and the public his seriousness of purpose and resolve. Presidents juggle lots of different priorities, and it’s often hard to know which initiatives are a genuine focus of presidential attention. Trump can use executive orders to suggest that he’s throwing the full weigh of his office behind his efforts to undo and remake the ACA.
Finally, and most interestingly, the vigorous (and often misplaced) controversy over executive orders during the Bush and Obama administrations has lent such orders a patina of presidential unilateralism and disregard for law. At the same time, it’s become an article of faith among Republicans that Obama systematically abused his powers in implementing the ACA. Promising to issue executive orders thus allows Trump to signal that he’s not afraid of committing the same sorts of abuses to undo Obama’s. It’s a way of cultivating his image. To his base, he’s saying, “I may be a son of a bitch, but I’m your son of a bitch.”
In other words, executive orders can be central to Trump’s communications strategy even if they lack legal significance. Still, that’s all they are: a communications strategy.