The problem with the claim that President Trump is on a 'dictatorial path'

There is no evidence so far that Trump's use of executive power exceeds Obama's. The travel ban is a key test case. 

Back when he was a Republican senator, Attorney General Jeff Sessions once called President Obama an “emperor.” Republican Gov. Chris Christie of New Jersey once called him a “dictator.” Four years ago Donald Trump, too, was part of the chorus.

“Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?” Mr. Trump tweeted in 2012, pointing to a defense-related order.

Now that Trump is president, and has unleashed his own wave of executive actions, Republicans have responded with applause, Democrats with alarm.

With great flourish, Mr. Trump has signed one executive order and memorandum after another. Some undo actions by Mr. Obama, such as last week’s reversal of protections for transgender students.  

Others push into new territory, and have elicited an uproar – foremost a temporary ban on travelers from seven Muslim-majority countries and indefinite suspension of Syrian refugee resettlement. The measure is now legally on hold, and the administration is expected to release a new version this week.

Trump administration directives aimed at more aggressive enforcement of the nation’s immigration laws have also instilled fear in immigrant communities, and anxiety among their supporters. Trump adviser Stephen Miller only deepened the fear when he asserted on TV that presidential powers on national security “will not be questioned.”

Some voters express deep concern that Trump is a nascent autocrat, and see his actions through that lens.

But so far there is no evidence that he has gone further in his use of executive power than President Obama, some of whose actions were overturned by the Supreme Court. While federal courts suspended Trump's travel ban while they consider its constitutionality, it remains to be seen whether Trump's actions will withstand legal scrutiny in the nation's highest court.

“The idea that we’re off on an unprecedented dictatorial path?” says Steven Schier, a presidential scholar at Carleton College in Northfield, Minn. “No. Not happening. Not yet. Maybe down the road, but not now.”

If Trump, for example, were to insist that his “travel ban” was constitutional, and he ignored the courts and demanded that his administration enforce the ban as originally written, that would be an authoritarian move, says Professor Schier.

“What is he doing instead? He’s rewriting it to make it acceptable to the courts and to more people in the political system,” Schier says. “That doesn’t sound like an unprecedented dictatorial path.”

Weighing Trump's words, as well as actions

In a way, Trump is behaving like many other American presidents. From George Washington on, presidents have invoked the Constitution in issuing orders that don’t require congressional approval. At times, the courts have shot them down. But more often, executive actions have stood, effectively carrying the power of law.

Of course, in other ways, Trump is an utterly atypical president – with his tweets, his misstatements of fact, his attacks on the media, his emphasis at times on quick action over careful planning. And he faces major pushback from liberals and other voters who see his treatment of undocumented immigrants, Muslims, and transgender people as unfair, inhumane, and undemocratic.

“Trump made all these utterances as a candidate that sounded dictatorial,” says Schier. “But look at what he’s doing, not what he’s saying. And what he’s doing is not out of bounds or unusual for a new president.”

Others argue that the words matter, however – as a signal of where he intends to take the country.

“Trump and the people around him have been quite open about their desire to smash the system,” says Ken Mayer, a political scientist at the University of Wisconsin, Madison.

Professor Mayer points to remarks Thursday by top Trump adviser Stephen Bannon at the annual Conservative Political Action Conference, in which he talked about “the deconstruction of the administrative state” – that is, cuts to government agencies and the slashing of regulations.

“If you look at these cabinet appointees, they were selected for a reason and that is the deconstruction” of the administrative state, Mr. Bannon said, referring to the proliferation of regulations that many conservatives see as usurping Congress’s authority.

The Obama comparison

On how to take aggressive executive action, Trump needed look no further than his immediate predecessor.

It’s not just that Obama signed a series of executive orders in his first days in office, as Trump did. Mr. Obama’s predecessors did the same. It’s Obama’s use of executive power to effect big, sweeping change that captured Trump’s fancy.

Trump the candidate said as much. Obama has “led the way” on executive orders, he said in January 2016. “But I’m going to use them much better and they’re going to serve a much better purpose than he’s done,” Trump added.

What's different, now that Trump is president, is the speed and scope of his turn to major executive actions.

Obama’s switch to a “pen and phone” strategy, as he called it, came after the Democrats lost control of Congress. Trump has both houses of Congress in his corner, but he’s already acting unilaterally in a big way, most controversially on illegal immigration.

Trump's three orders in that area deal with the border wall and “immigration enforcement improvements,” sanctuary cities, and the travel ban. Follow-up directives to support the first of these orders expand the pool of illegal immigrants subject to deportation, call for thousands more enforcement agents, and enlist local law enforcement in making arrests.

Obama, for his part, moved to defer deportation of certain groups after Democrats failed to pass comprehensive immigration reform in Congress.

Such executive action from Obama on immigration, plus other moves related to the Affordable Care Act (ACA), recess appointments, climate change, gay rights, welfare reform, and education, led to cries that he was behaving like an “imperial president.”

In some instances, his actions were struck down or temporarily blocked by the Supreme Court. For Trump, expected Supreme Court challenges to executive actions lie in the future.

Is Trump rolling back Obama's executive actions?

Perhaps ironically, Trump has expressed sympathy for the some 750,000 beneficiaries of one of Obama’s most consequential unilateral moves: Deferred Action for Childhood Arrivals, which defers deportation for illegal immigrants brought to the United States as children, and allows them to receive work permits.

For now, DACA remains in place. In addition, the Trump administration has stated that it will keep an Obama order barring workplace discrimination on the basis of sexual orientation and gender identity by federal contractors.

But the idea that Trump isn’t committed to undoing Obama-era executive action is misguided. He has pulled the US out of a major trade deal, the Trans-Pacific Partnership (TPP); rescinded the order requiring public schools to allow transgender students to use bathrooms that correspond to their gender identity; and reinstated the policy that bars federal funding of international organizations that provide abortions or abortion counseling.

The point is that Trump is wielding executive authority to fit his policy and political goals, even if it means keeping some Obama-era policies. And as with his predecessors, the Trump actions that make their way through the court system are likely to set new parameters of power for the American presidency.

What is executive power, anyway?

Article II of the Constitution vests executive power in the president, and requires that “he shall take care that the laws be faithfully executed.” But the Constitution does not define executive orders, presidential memoranda, or proclamations, and “there is, likewise, no specific provision authorizing their issuance,” according to the Congressional Research Service. Yet presidents have used such “written instruments to direct the executive branch and implement policy” throughout American history, CRS notes.

So, in some circumstances, presidents have a fair amount of latitude to act unilaterally. But the reality is that they can only do so much without Congress, which controls the “power of the purse” – the ability to levy taxes and spend public money.

In the end, many of Trump’s executive orders are more mission statements than fully actionable policies, because of the need for congressional appropriations. One example is his order to build a wall on the Mexican border. Trump’s plan to repeal and replace the ACA must also go through Congress, since it is a law and involves federal funds.

For Trump, therein lies another lesson. Executive actions are easy to take, but they’re also easily undone. Trump benefits from that principle now, but with the stroke of a pen, his successor can wipe them away.