Executive orders expire


Since US President Donald Trump was unable to achieve his election promise to abolish Obama Care through parliamentary channels, he intervened in the health care of citizens by decree in October 2017. Photo: Andrea Hanks / The White House.

Govern by decree
Executive bias as a sign of authoritarian democracy

1. Between populism, neoliberalism and a state of emergency
2. Govern by decree
3. Executive Orders under Donald J. Trump
4. Options for action in authoritarian democracy

1. Between populism, neoliberalism and a state of emergency

Democratic governance is currently under a bad star. Unfortunately, this finding is by no means new. Already in 2008 the magazine published The mirror a small series on the constitution of western democracies. The conclusion was an article on the question of their future viability. His illustrations spoke volumes: while on the right side there was a half-page photo of a colorful group of protesters who had gathered behind a banner with the inscription “Stop the expansion of the airport!” In order to prevent the further expansion of Frankfurt Airport left side an interior shot of the new terminal building of the Beijing airport together with a formation of police officers. Authoritarian regimes, so the subtext, are perhaps less good at organizing civil society engagement. But they can provide infrastructures that are so important for international competition between locations.

A global economic, financial and refugee crisis as well as numerous election victories by left and right-wing populist parties later, democracy is no better off. It is rejected everywhere - it is corrupted, too cumbersome and complicated and therefore absolutely incapable of making decisions in the interests of the citizens. As part of this year's Democracy Lecture by Sheets for German and international politics Wendy Brown has located the current "anti-democratic populist revolt" in a common cause and effect of neoliberalism and a state of emergency. The rejection of democracy, according to Brown, which at best is classified as merely disturbing, at worst as totalitarian, is firmly anchored in neoliberal cultures. It helped to stir up the anti-democratic populism of the present, which paradoxically demands freedom and authority at the same time: the freedom of the markets on the one hand and the authority of the state, which is supposed to guarantee this freedom in terms of economic principles and entrepreneurial power, on the other. In other words: "The dictate of the executive should take the place of democratic procedures."

According to Brown, the currently most successful prototype of this anti-democratic, populist-neoliberal-authoritarian-inspired style of government is Donald J. Trump:

“As a result, Trump often governs by decree (executive order). In addition, the US government often speaks of deals. Trump consistently characterizes his predecessors as people who made bad deals while he will do good ones himself: with China, Russia and Europe, with the United Nations, with Fiat and Ford, with the coal industry and with those states that voted for him. Trump's promise that he would 'dry up the swamp' was therefore not an assurance to drive Wall Street out of politics, but rather politicians and politics themselves. [...] In all of this, he refers to the neoliberal common sense politics - including democratic institutions and requirements - hinders entrepreneurial activity that seeks to achieve a competitive advantage. "(Brown 2017)

Against the background of this diagnosis, a twofold interest in knowledge is pursued in this text. On the one hand, the aim is to trace the legal framework of the style of government criticized by Brown as being complementary to hegemonic neoliberalism. On the other hand, after a good nine months of Trump's presidency, it is important to dare to take a first look at the intensity and content of his governance by decree.

2. Govern by decree

Governing by decree implies executive dominance in the liberal-democratic legislative process. Insofar as states of emergency can be understood as situations of concentrated executive powers, frequent recourse to decrees is a style of government that transcends normal legislative and government constellations. In contrast to almost all other constitutions of established, free democracies worldwide (see Lemke 2017: 45 ff.), The constitution of the United States does not recognize a state of emergency. It is emergency-proof and therefore remains unchanged in normal times as well as in times of crisis. The United States has “one constitution for normal times and crisis times alike” (Sullivan 2006: 30). However, the constitution contains regulations and procedures that can be regarded as functional equivalent to exceptional practices of other democratic-republican constitutions, insofar as they enable a systematic strengthening of the government position in times of crisis - and beyond. Two of these competencies are of central importance with regard to the question of governing by decree: the martial law and the executive order. Insofar as Brown essentially addressed executive orders in her diagnosis - translated as `` decrees '' - the following remarks will concentrate on this instrument of executive-heavy government, even if the martial law, which in turn could be translated as martial law, allows similar concentrations of competencies. In contrast to the Executive Order, the Martial Law does not refer to everyday government practice, but to those in times of war.

Developing the political and legal power of the Executive Order must begin with a look at the US Constitution. Article 2, paragraph 1, sentence 1 puts the President in office: "The executive Power shall be vested in a President of the United States of America." In doing so, it constitutes an office located at the federal level above the federal states and with it what Max Weber once called the “monopoly of legitimate physical violence” (Weber 1919: 159), which the modern state as a political association has to successfully appropriate and how it was claimed in particular by Hamilton. In turn, basic policy-making skills are tied to a successfully assumed authority. These have to prove themselves in normal government operations, but also in cases of acute crises. As far as the ability to intervene in crises is concerned, it can be observed in the course of US history that crisis-related governmental competence manifests itself again and again in the practice of so-called executive orders.

These are decrees, i.e. instructions from the President to the federal authorities subordinate to him and responsible. Executive orders take immediate legal effect without the need for approval by the legislature. Because of this immediacy of their effectiveness, they appear to be a particularly effective means of crisis intervention at first sight. In relevant crisis situations, US presidents have repeatedly resorted to this instrument - for example Franklin D. Roosevelt, who responded to the Japanese attack on Pearl Harbor and for fear of domestic acts of sabotage ordered the internment of Americans of Japanese descent with Executive Order 9066.1 Or George W. Bush, who initially declared a “national emergency” after the attacks of September 11, 2001 because of the immediate threat.2 declared in order to then claim a number of consecutive rights for themselves3 and then to issue numerous executive orders aimed at effective security. Among them was the one of September 14, 2001, with which he spoke because of the "terrorist attacks on the World Trade Center, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States" (Bush 2001b) Ordered mobilization of all available armed forces reserves. All of these and many other executive orders were a direct expression of executive crisis intervention policy. As such, however, they remain the subject of judicial review, particularly with regard to their compatibility with fundamental rights. This shows an interesting pattern. As for Franklin D. Roosevelt's internment order, the US Supreme Court ruled in the Korematsu vs. United States case4 Although the majority weighted the security interests of the United States over the plaintiff's need for freedom of movement, the real motive behind the decree was denounced in the decision itself, in the form of a dissenting opinion by Justice Murphy: racism.5 Even if, at the time of the judgment, the legal control of norms in opposition to an expanded executive power was merely symbolic, it ultimately resulted in compensation payments to those affected at the end of the 1980s. The same mechanism can also be observed in the processing of the government's anti-terror policy after September 11, 2001: an expansion of the government's powers and the measures ordered in the course of the same are subject to legal control and, in the event that they contradict Habeas corpus rights6 stand, withdrawn. This creates an institutionalized compromise between politics and law, which initially allows the government to react immediately to a crisis, but then evaluates its decisions and measures7 and, in the event of a failure to comply with fundamental rights, suspends or withdraws it.

Through this consecutive control logic of the two powers, in which the judiciary always follows the executive, the executive's ability to intervene is not restricted a priori, but can be controlled and sanctioned ex post. A practice that, as Brown explains, has not always lived up to the expectations of the incumbent US president: “As 'politics' he also denigrates the legal review of his decrees, the resistance of Congress to the appointment of incompetent members of his cabinet, parliamentary inquiries and the protest against him. ”Brown describes this attitude as“ plutocratic authoritarianism ”(Brown 2017), which tries to undermine democratically legitimized institutions and control mechanisms and ultimately to abolish them entirely. Rule the lord of the manor, at best.

3. Executive Orders under Donald J. Trump

But what about US democracy, how far has the alliance of populism, neoliberalism and exceptional government practices mentioned by Brown already progressed? The following brief analysis of how presidential decrees have been dealt with so far under US President Trump is of course only provisional, as it only covers the first nine months of his presidency. A systematic development of the corresponding policies would have to be much more detailed and include, among other things, the public debates, be they those in the media or those in parliament. Nevertheless, in the following an attempt will be made to at least roughly quantitatively compare and evaluate the content of governance by decree in the early phase of the Trump presidency.

So let's start with the pure numbers: In the first nine months of his presidency8 has Trump, starting with Executive Order No. 13,7659 , issued a total of 52 decrees. If you extrapolate this on the basis of his previous term of office, analogous to the eight-year terms of office of his three predecessors, the prospect of a number of 520 executive orders comes up.10 If one also takes into account that in two of the three previous presidencies most executive orders were issued in the first year of office and their number tended to decline in the following years, then for Trump the purely linear figure of 520 will have to be rounded off somewhat in order to take account of the downward trend observed so far. Therefore, it seems appropriate to accept a value of around 450 issued executive orders for the end of his term of office, if this actually lasts eight years and there is no impeachment in advance, as Allan Lichtman (2017) predicted, or re-election in 2021 fail. So if he spent two full terms in the Oval Office, Trump would have issued more decrees than any of his three immediate predecessors. If the forecast were correct, then it would be historically classified in terms of the number of executive orders issued with the values ​​from the presidencies of Dwight D. Eisenhower and John F. Kennedy.

Compared to his three immediate predecessors in office, this is a significantly higher figure. During his tenure, Barack Obama issued a total of 276 executive orders and did not exceed 41 per year. From the ranks of the immediate predecessors in office, Obama is the one with the lowest scores, both in terms of the total number and the annual value. George W. Bush, who has 291 decrees during his term of office, issued only slightly more executive orders. However, Bush's highest annual figure, which was quoted at 54 for 2001, is significantly higher than that of Obama. Trump's value of 52 so far for 2017 is likely to significantly exceed this value from the catastrophe year 2001. Finally, Bill Clinton issued a total of 364 executive orders during his tenure. Its highest annual value of 57 dates from 1993. Trump is also likely to exceed this value this year. In this respect, it can be said that the incumbent president makes much more intensive use of the means of executive orders than his three immediate predecessors. Legislation that derives its legitimacy from the full power of the office of the US President has not only enjoyed unbroken popularity over the past two decades. After the use of executive orders from Clinton to Bush Junior to Obama has declined, a trend reversal is currently emerging, which is likely to be all the more evident the more the current US administration deals with manifest crisis events such as terrorism, natural disasters or even warlike ones Disputes, confronts sees. Governing by decree, so Brown's diagnosis is to be endorsed, is currently in vogue.

To which policy areas does this initially purely quantitative finding relate? With regard to the previously dominant regulatory areas of the executive orders, which Trump signed sometimes with a larger, sometimes with a smaller public staging, two areas of focus can be identified - again in a quantitative approach. There are, on the one hand, the decrees with which entry restrictions were imposed and, on the other hand, those that have as their object a withdrawal of environmental protection requirements.

As far as the first-mentioned group of the expansion of entry restrictions is concerned, there are currently seven executive orders, some of which have been improved, which have attracted a great deal of public attention under the heading 'Travel Ban', among other things.11 Against the background of Trump's election campaign promise to make the USA safer through significantly tightened entry controls, Trump has for the first time imposed an entry ban for people from predominantly Muslim countries with Executive Order No. 13.769 of January 27, 2017. However, this and the amended Executive Order No. 13.780 had no legal validity, as they contained elements of general discrimination due to the flat-rate entry bans according to the countries of origin or entry countries. In addition to these decrees, there were those who exerted increased pressure to prosecute and repatriate persons illegally located in the USA, even if the persons concerned were not guilty of any criminal offense - apart from those of illegally residing in the USA. Numerous major US cities have announced that they will not pursue those affected and protect them from deportation. Finally, there are also decrees that are supposed to open up more room for maneuver for the subordinate executive authorities, such as the one from October 24, 2017, which gives US immigration authorities even more extensive competencies in questioning and screening those wishing to enter the country. A political evaluation of this group of presidential decrees will not avoid finding that this - as is probably also the case with the planned construction of a border wall to Mexico - is a matter of populist symbolic politics, the effective effect of which is highly dubious. As a rule, they will not make a significant contribution to making the United States and the people who live there safer, as the recent attacks in Las Vegas and New York show in a depressing way. On a symbolic level, however, it works all the more, because Trump serves his core clientele here, who expect him to restore white supremacy in the USA.The interplay of the expansion of control powers, the generalized entry bans and the deportation of illegals can be plausible not only as an attempt to regain control over migration movements in the USA. The repressive nature of the measures as a whole also shows the political intention to reduce the openness of the USA as the immigration country par excellence and thus to make it more homogeneous in terms of population policy - from the persecution pressure on minorities that goes along with the measures and the resultant Not to mention fear in these groups of people.

A total of thirteen decrees can be assigned to the second group of executive orders, all of which reduce or simplify environmental protection or other requirements and thus insinuate to prevent government activity that is harmful to the market.12 Not only in terms of the number, but also the date of their adoption13 this group appears to have priority over the former. In a classic neoliberal setting, it is all about reducing the role of the state in favor of the creative market power of companies. Regardless of whether it is a question of health insurance, deregulation, pipeline construction or the reduction of environmental protection requirements, all decrees in this group are based on the assumption that the personal responsibility of consumers and entrepreneurs in a freely accessible market is the best possible model of a growth-promoting, represents capitalist order. Any state intervention that goes beyond the area of ​​security provision - see the group of measures discussed above - is dysfunctional, therefore inappropriate and illegitimate.

Both groups of executive orders seem to serve independent policy fields with security policy on the one hand and economic policy only at first glance. One could rightly ask, for example, to what extent the increased pressure to persecute people illegally residing in the USA fits into the neoliberal exploitation logic. Because it is precisely with this group of people that the market has a reservoir of cheapest and largely unlawful labor available. In a purely neoliberal logic, this contradiction could in fact hardly be resolved. However, since the Trump administration uses populist methods to consolidate its power base, this contradiction ultimately manifests part of the price that neoliberal authoritarianism, based on exceptional practices, has to pay in order to gain its ability to govern.

4. Options for action in authoritarian democracy

In view of this balance sheet, can one speak of an executive bias, even an authoritarian democracy, for the first nine months of Trump's presidency? Yes - for two reasons. On the one hand, there is the quantitatively observable or predictable trend that has determined an increase in the use of executive orders for the Trump administration, whereas a continued decline was observed under the previous three presidencies. In addition to this intensified use of decrees, there is another substantive argument. 20 of a total of 52 executive orders to date relate to the political fields of security and economy and thus serve core areas of Trump's agenda. With them he tries to a large extent to enforce promises from the election campaign. The use of executive orders is therefore not based on external or situational pressure, but on the basis of political calculations.

If so, what remains to be done? Essentially, there remain two options, an institutional and a political one. The institutional option is based on previous experience in dealing with some of the executive orders issued by Trump. In view of the judiciary's apparently still functioning legal authority to monitor norms vis-à-vis the executive and legislative branches, it must be important to maintain their scope for action as much as possible and not curtail them politically or legally. In fact, it is primarily the currently elected officials who can guarantee this by resisting the temptation, for example at the price of their re-election, to agree to legislation that curtails the powers of the judiciary. The political option leads back to the beginning of this text. In contrast to the above, it is equally open to all citizens. In the spirit of the protest group in connection with the expansion of Frankfurt Airport, it will be important not only to articulate the protest against Trump, but also to organize it. Organizing means founding local protest groups, running for office, and becoming politically capable in order to increase the pressure on the government and offer political alternatives. That is the real promise of democracy: to be able to take your own future into your own hands. It is still possible, politically and legally.

1See in detail Lemke 2017: 187-192.

2See Bush 2001a: "A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States."

3See ibid .: "[...] I intend to utilize the following statutes: sections 123, 123a, 527, 2201 (c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United States Code. "

4Korematsu vs. United States, 312 U.S. 214 (1944).

5See Lemke 2017: 192.

6These are set out in amendments 4-6 of the constitution, which date from 1791.

7How short this deadline can be or how responsive the judiciary can react to executive action has recently become clear in view of Executive Orders 13,769 and 13,780, which were repealed with reference to discriminatory offenses. A lawsuit against the suspension of Executive Order 13.780 by the US government has been announced or is pending; a judgment is still pending at this point in time (October 2017). Nonetheless, this context, which the US government has always communicated against the background of security measures and the fight against terrorism, appears to be a worthwhile subject for a detailed study of the limits of crisis-induced executive expansion in the US constitution.

8The deadline for this evaluation is October 31, 2017.

9All US executive orders are numbered consecutively.

10Calculation key (52 * 1.25) = executive orders / year; Executive orders / year * 8 = total number of expected executive orders.

11In addition to the original Travel Ban of Executive Order 13.769 from January 27, 2017, this includes the amendment to Executive Order 13.780 and also Executive Orders 13.767, 13.768, 13.773, 13.802 and 13.814.

12In detail, these are the executive orders 13,765, 13,766, 13,771, 13,772, 13,777, 13,778, 13,782, 13,783, 13,788, 13,789, 13,805, 13,812, 13,813.

13Trump's first Executive Order, 13,765, entitled "Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal", dated from the day he took office, January 20, 2017, and has the withdrawal of the as overregulatory and economically unsustainable criticized Obamacare regulations on the subject.


Brown, Wendy (2017), Democracy under fire: Donald Trump and apocalyptic populism, in: Blätter für German and international politics, https://www.blaetter.de/archiv/jahrgaenge/2017/august/demokratie-unter-beschuss -donald-trump-and-the-apocalyptic-populism, June 28th, 2017.

Bush, George W. (2001a), Proclamation 7463 - Declaration of National Emergency by Reason of Certain Terrorist Attacks, September 14, 2001, in: http://www.presidency.ucsb.edu/ws/?pid=61760, May 31 .2017.

Bush, George W. (2001b), Executive Order 13223 - Ordering the Ready Reserve of the Armed Forces to Active Duty And Delegating Certain Authorities to the Secretary of Defense And the Secretary of Transportation, September 14, 2001, in: https: // georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010914-5.html, May 31, 2017.

Lemke, Matthias (2017), Democracy in a State of Emergency. How governments expand their power, Frankfurt / M. / New York.

Lichtman, Allan (2017), The Case for Impeachment, New York.

Sullivan, Kathleen M. (2006), Do we have an emergency constitution ?, in: Bulletin of the American Academy, Winter Edition, 30-34.
Weber, Max (1919), Politics as a Profession, in: Ders., Max Weber Complete Edition. Department I: Writings and Speeches. Volume 17. Edited by Horst Baier, M. Rainer Lepsius, Wolfgang J. Mommsen, Wolfgang Schluchter, Johannes Winckelmann, Tübingen, 156-252.