Bright vs. blurry lines: how to think about executive power grabs

Needless to say, it’s been quite the week (or so) for expansive use of executive power. In the past, I’ve felt like it was challenging to apply the kinds of frameworks that were developed in the “imperial presidency” era (60s/70s) or during the Bush administration. In the first Trump administration, the executive branch tactics were often standard but the policy aims both deep and broad. They weren’t exactly George W. Bush-style innovations in finding new nooks and crannies of executive power, or employing broad theories of it.

In the second term, everything feels different, and yet also like a painful rerun of some of the chaos of the first term. In response to the confusion and acute anxiety provoked by Tuesday’s sweeping OMB order, I developed a framework for how to think about the expansive use of presidential power in the Trump administration, and how it relates to past practices and ideas. I divided executive action into four categories: pretty normal/standard; expansive but has evolved into a normal practice; not really normal at all; and illegal/unconstitutional.

The first category can be addressed pretty easily: these are the usual executive orders that presidents issue to establish their issue positions and/or reverse those of their predecessors. This includes what’s known as the “Mexico City policy” as well as more recent back-and-forth on ethics rules for the federal government. We might strenuously disagree with the substance of these policies, but they have become pretty standard fare for executive orders, usually in the first few days of an administration.

The second category encompasses expansive executive power that has become more normal over the course of the twenty-first century; e.g. achieving major policy aims through executive action without accompanying legislation. Bush did this in the foreign policy and security realm, claiming expansive powers and obtaining broad Congressional authorization for U.S. military actions that could be linked to terrorism. Obama introduced the “pen and phone” method of addressing issues when faced with years of a Republican-controlled Congress generally uninterested in a back-and-forth with the administration on new policies. Among the most famous and important of these policies was Deferred Action on Childhood Arrivals (DACA), an executive order protected undocumented immigrants who entered the country as children. This order was issued after Congress did not pass the DREAM act, which would have included a provision protecting these individuals. In sum, it’s become more and more normal for presidents to accomplish big agenda item – or pursue major foreign policy aims – with executive action or very broad delegation from Congress. In this sense, Trump’s immigration and tariff policies might fall into this category, even as they represent policies that many Americans find deeply objectionable and counterproductive.

My assessment is that when we get into the final two categories, we make a qualitative shift. “Not really normal” is probably not an adequate phrase to capture what I’m trying to get at here – I’m going to try out the phrase “informally authoritarian.” Trump’s approach to enacting an entire agenda through executive action in his first few days. Trump signed 26 executive orders on day one. Barack Obama signed forty in his first year. Numbers aren’t always indicative of what’s going on, but they’re one important piece of data. Trump’s early executive action has been broad and sweeping, aimed at fundamentally changing the country and – importantly – not a last-ditch effort to address a policy issue after Congressional action has failed. Also included in this list of highly abnormal behaviors is creating uncertainty – a mild word for what happened on January 28 regarding the federal spending order – by issuing ill-considered, hasty, and over-broad executive orders. This chaos was a hallmark of the first Trump administration. It was certainly a defining feature of the OMB directive, leaving people unsure about whether Medicaid or student loans had been paused, and for how long. This kind of confusion is also authoritarian, an affront to the communication and transparency demanded by a republic of laws.

Any scare tactics belong in this category. So does having someone who did a Nazi salute at a rally in the president’s inner circle, or even inspires debate about whether they did that. These things aren’t illegal. But they are authoritarian informal practices.

The final category is the illegal and unconstitutional: unilaterally changing the 14^th amendment; impounding funds appropriated by Congress; failing to execute the law; firing government employees in ways that violate laws governing that process.

This category includes the most of what we might consider a “bright line” for the administration to cross, and it has crossed quite a few at this point. It seems intuitive that the fourth category would be the most threatening to democracy. But it also represents the category with the clearest opportunities for legal pushback, which has happened. It’s a good thing that pressure, both from civil society and in the form of a court injunction, pushed the administration to rescind the order.

Nevertheless, we should consider that the politics of categories 3 and 4 expose some of the limitations of the “bright line” framework. It’s far from clear that any actors in the system, even the most blustering Trump officials, actually crave a full-blown Constitutional confrontation as the fourth category might provoke. No one really knows what that would look like or who would win – or even what the most useful tools would be. Would it look more like Watergate or the Civil War, or something else entirely? It’s unlikely that anyone wants to find out. But the process of moving between illegal and simply informally authoritarian allows the administration flexibility and opportunities to carve out legitimacy. Maneuvering from 4 to 3, they often get to keep some of their agenda items – think the third, successful travel ban in the first administration. The structural response remains piecemeal, depending on state attorneys general and responsible judges. And the larger Trumpist project keeps moving forward. Since the OMB order was rescinded, the administration has issued an executive order about elementary school instruction and blamed a tragic plane crash on “diversity.”

If we think about how much damage the blurry lines – not just the bright lines – can cause for democracy, it also stands to reason that the major regime change may have happened in 2017, not 2025. It also means that the institutions can play a role, but will not save us. Institutions can work (or not), but it’s also true that institutions are worked by ambitious political actors. It’s probably not realistic to make it illegal for president to announce a wholesale agenda through executive action, largely bypassing Congress. But just as the transgressions are informal, the response can be as well: public and civil society pressure, refusal to obey in advance, and rejection of actions that undermine democratic values. Insistence on transparency and straight answers. It may not work all the time, but it may be the best tool in response to the dangerous informally authoritarian category.