President Trump signed two executive orders curbing executive power Oct. 9. They’re a good start, but more is needed.
The first order targets “guidance”—agency decrees that are neither written into law by Congress nor put through the formal rule-making process established by the Administrative Procedure Act. That’s how the Obama administration pressured schools nationwide to vitiate due process in disciplinary proceedings for sexual misconduct and to accommodate transgender students demanding to use opposite-sex restrooms.
The second Trump order reins in enforcement that twists regulations away from their original purpose—such as the Environmental Protection Agency’s habit of levying fines designed for industrial polluters on private citizens.
These changes are urgently necessary but insufficient. For one thing, it’s unclear if they prevent agencies from using their power of the purse to force state and local compliance with their guidance. That’s potentially a major loophole, and the White House should move fast to close it.
Hundreds of programs funnel federal funds to state coffers, giving federal agencies a powerful lever over state and local officials. The Obama administration used it to impose a variety of federal initiatives—from the sexual-misconduct and transgender-bathroom policies to the Medicaid expansion under ObamaCare. Any agency decision to withhold funds from states and school districts should be considered an “enforcement action,” but will agencies see it that way and limit their own power? The question could be addressed by revising a Clinton-era order on federalism.
The new executive orders don’t touch even more-informal tactics, such as the internal agency memorandums that have become the main avenue for the insidious use of “prosecutorial discretion” as a tool of national policy. Mr. Obama’s “dreamer” amnesty measures, known as DACA and DAPA, were only a series of internal memorandums from the homeland security secretary to division heads, instructing them to stop enforcing immigration and employment-eligibility laws against illegal aliens who were brought to the U.S. as children, and later against their parents. It was an object lesson in how to enact national policy while shielding it from legal challenge. Despite the exceeding legalism of their text, the documents were so legally informal that federal courts considering challenges to them struggled even to cite them properly.
Any executive order can be withdrawn by a future president, but there’s a bipartisan wisdom to reining in executive abuses. President Reagan put formal agency rule-making under White House oversight, and that was politically polarizing at the time. But President Clinton built upon his reforms, which are now the bedrock of the rule-making process. Mr. Trump’s executive orders should likewise serve as a foundation. The American system of checks and balances is weakening, and much work remains to shore it up before it’s too late.
Originally published at The Wall Street Journal.