President Donald Trump’s latest executive order is as good as executive orders come. Trump has banned executive appointees from becoming a lobbyist of the particular branch they served in for five years, plus several other restrictions.
“2. If, upon my departure from the Government, I am covered by the post-employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, I agree that I will abide by those restrictions.
“3. In addition to abiding by the limitations of paragraphs 1 and 2, I also agree, upon leaving Government service, not to engage in lobbying activities with respect to any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration.
“4. I will not, at any time after the termination of my employment in the United States Government, engage in any activity on behalf of any foreign government or foreign political party which, were it undertaken on January 20, 2017, would require me to register under the Foreign Agents Registration Act of 1938, as amended.
“5. I will not accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee.
This is really good policy, and also delivers on Trump’s “drain the swamp,” rhetoric from the campaign. Ethics reform is something all governments should engage in, because it can increase transparency and keep cronyism from rearing its ugly head. It can possibly save the government money, and reduce the debt.
But there’s still a massive problem. Trump is doing this action through executive order, instead of letting it go through the legislative process. The Constitution is quite clear on which branch originally comes up with rules. From Article I, Section 8, Subsection 14 (emphasis mine):
The Congress shall have Power…To make Rules for the Government and Regulation of the land and naval Forces;
It’s Congress which develops the rules for government employees, not the president. Trump is acting as CEO of the government (which he’s not), meaning he’s so used to doing things his way, without having to have others sign off on his actions. He’s taking another page out of former President Barack Obama’s playbook, but promising he’ll do it right. Via The Hill:
I won’t refuse it. I’m going to do a lot of things,” Trump said when asked if he would use executive orders in an interview Sunday on NBC”s “Meet the Press.”
“I mean, he’s led the way, to be honest with you,” he added, referring to Obama.
The Republican primary front-runner said his executive orders, unlike the president’s, will be for the “right things.”
“But I’m going to use them much better and they’re going to serve a much better purpose than he’s done,” he said.
Who decides what’s good and what’s bad? The person in power? Obama sure tried to defend his own executive actions as good for the government. Via ABC News in 2014:
“Congress has a responsibility to deal with these issues and there are some things that I can’t do on my own,” the president told ABC News’ chief anchor George Stephanopoulos during an interview in Las Vegas on Friday. “What I do have is the legal authority to try to make the system better. Given the resource constraints that we have, we have to prioritize.”
See the problem? It’s relying on the opinion of the executive, without even bothering letting the Legislature do its constitutional duties. It’s not surprising because the government has consistently gone outside the rules set in the Constitution, and allowed bureaucrats make policy. Is this not an almost monarchy with Congress as merely advisers to the throne? The Anti-Federalist Cato, believed to be former New York Governor George Clinton, expressed such concern in 1787:
Though it may be asserted that the king of Great-Britain has the express power of making peace or war, yet he never thinks it prudent so to do without the advice of his parliament from whom he is to derive his support, and therefore these powers, in both president and king, are substantially the same: he is the generalissimo of the nation, and of course, has the command & controul of the army, navy and militia; he is the general conservator of the peace of the union—he may pardon all offences, except in cases of impeachment, and the principal fountain of all offices & employments. Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy, or monarchy? The safety of the people in a republic depends on the share or proportion they have in the government; but experience ought to teach you, that when a man is at the head of an elective government invested with great powers, and interested in his re-election, in what circle appointments will be made; by which means an imperfect aristocracy bordering on monarchy may be established.
It should also be pointed out Trump may be going against a campaign promise to let Congress in on the action.
First: I am going to re-institute a 5-year ban on all executive branch officials lobbying the government for 5 years after they leave government service. I am going to ask Congress to pass this ban into law so that it cannot be lifted by executive order.
President Trump has said nothing about Congress making this ban law, which is disappointing because this really is good policy. Even if Congress does make Trump’s ban law, it’s still troubling he didn’t bother pursuing legislation. If it was wrong for Obama to use executive orders, it’s wrong for Trump. Trump’s goals in the executive order are noble, but the methods he used to put them in place are unconstitutional, and deserving of criticism.