100 Days and Pen-and-Phone Governance

Nathan Thompson

Jake Tapper summarized the first 100 days of Donald Trump’s presidency well: “Long on executive orders, short on major legislative accomplishments.

Of course, President Barack Obama was also famously (or infamously, depending upon your point of view) willing to use the “pen and phone” of executive orders to achieve his policy aims. But while many of President Trump’s executive orders have merely erased the ones issued by President Obama, our current commander-in-chief has similarly not shied away from privileging the pen and phone over Congressional legislation.

In the first three or so months of President Trump’s first term, we have seen the rollback of a significant number of Obama-era regulations, ranging from rules on healthcare and energy production to education and climate change. Of course, this is nothing new; once in office, presidents have frequently done away with executive orders issued by their predecessors.

Those on the left may be frustrated and upset by the cancelling of Obama-era regulations. Those on the right, ascendant under Trump, may be thrilled to see them go. But for anyone who is concerned with preserving the design of our government, the pen-and-phone approach of our current president and his immediate predecessor should be seen as lamentable.

As the second article of the US Constitution informs us, the primary duties of the president fall in the realms of foreign policy, the defense of the Constitution, and the faithful execution of laws—laws originating in, and passed by, Congress, which possesses all legislative power granted by the Constitution.

Not apparent in the second article is the constitutional authority of the president to govern by a pen or a phone, even in cases of extreme partisanship and obstructionism.

The challenge of our times, then, is to determine what an appropriate course of action is if a president faces a historically obstinate or seemingly incompetent legislative branch. But what I would first suggest is not that we do something so much as we remind ourselves of how the government is supposed to work in the first place.

The Founding Fathers understood that power concentrated in the hands of one person could be deeply corrupting. This is why it is distributed across three branches (legislative, executive, judicial), each with unique responsibilities.

A separation of powers wouldn’t just prevent one branch from centralizing authority, however; it would also ensure that change would come about gradually. In a remarkably populous and diverse country filled with preferences and prejudices of all kinds, keeping a steady course rather than letting the whims of the moment dictate policy would be the surest way to avoid sudden and dangerous deconstructions of institutions holding society together.

All of this is to say that our government isn’t designed for the rapid passage of laws or rule by pen and phone. It is designed for maddeningly slow change.

Naturally, this is inconvenient for a party not in power, both parties when government is divided, or even to a party that controls both the executive and the legislative branches when it can’t determine, say, how to repeal the Affordable Care Act. Moreover, this reality is not just inconvenient but deeply harmful to those who currently suffer injustice and would be greatly benefited by rapid change.

Ultimately, though, there are two lessons to be gleaned from this brief trip down Civics Lane: first, that there is a reason why presidents were not granted the authority to both make and enforce laws, and second, that we should expect legislative progress at a slow rate.

The implication of these lessons is that straying from such a model leads to significant and undesirable turbulence. Frequent and sudden changes in environmental, healthcare, education, or other policy driven by presidential fiat will do little more than deliver a serious case of whiplash as the reins of power are handed off every four or eight years. Such a method of operation is no way to run a country.

Governance without legislation is unstable, unsustainable, and unworthy of the American tradition. So whether you are a Republican frustrated by President Obama’s overreach or a Democrat perturbed by President Trump’s potential to do the same, we should all hope that Congress sees fit to more zealously defend its legislative prerogative in the future. And if you want to do more than hope, try giving your congresswoman or congressman a call. A phone seems to get things done pretty well these days.

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