The White House says it won’t revoke former President Barack Obama’s 2014 executive order prohibiting workplace discrimination among federal contractors based on sexual orientation and gender identity. The statement, made last week, was issued to address rumors that the Trump administration was drafting a “religious freedom” executive order that might curtail LGBTQ rights. The announcement was surprising in at least one sense: Trump had pledged to target Obama’s executive actions. It’s a promise he made throughout the campaign, including in January of last year in Burlington, Vermont, where he said: “[Obama] just goes along and signs executive orders for everything … because that’s easy to do. I’ll tell you, the one good thing about an executive order is that the new president [can] come and with just a signature, they’re all gone.”
Trump is correct: Incoming presidents can undo past presidents’ executive actions by revoking them with their own executive actions. Indeed, many observers expected Trump’s first couple of weeks in office to include a raft of revocations. But that hasn’t happened. (Not yet, at least.) Revocation, especially of popular Obama actions, may be postponed, given Trump’s limited popularity. Instead, Trump has been using executive orders to act fast on his other campaign promises, seemingly eager to demonstrate that he is a man of “action and impact.”
“Executive action” is a catch-all term for the options that presidents have to make public and administrative policy unilaterally and independent of Congress. These actions include executive orders, proclamations and memoranda. Executive orders are aimed at people and agencies inside government (e.g., an order to the Department of Homeland Security requiring that it follow a specific procedure for disposing of trash at the Canadian border), while proclamations are ceremonial announcements directed at people outside of government, like the declaration of a national holiday.1 Both executive orders and proclamations are easy to track; the 1935 Federal Register Act required that they be cataloged and numbered. Memoranda are similar to executive orders but are not subject to the same reporting requirements. These are published when presidents determine that they have a legal effect, which makes tracking them more difficult — presidents can pick and choose which memoranda are published and which are not. Increasingly, presidents have come to rely on memoranda to avoid what political scientist Kenneth Lowande has referred to as the appearance of “imperial overreach” associated with executive orders.
In his first two weeks, Trump issued seven executive orders.2 In terms of volume, this is on par with Obama, who issued nine orders in his first two weeks. George W. Bush issued two, and Bill Clinton issued three. Unlike Obama, however, Trump has yet to use his unilateral powers to make any significant revocations of past presidents’ orders.3 Obama revoked six orders in his first two weeks.
Two weeks is just two weeks. Trump may still get to revoking, and Obama’s executive orders may still be a particular target. According to data gathered from the National Archives,4 a president is more likely to revoke the executive orders of his immediate predecessor than orders from older administrations.
Here’s the raw number of executive order revocations for every president since Franklin D. Roosevelt:
And here’s the share of each president’s total revocations that were of orders issued by the previous president:
About 80 percent of revocations issued by Obama were of executive orders issued by his predecessor (George W. Bush).5 Same for George H.W. Bush, even though Bush’s predecessor was also a Republican — and his former boss (Bush served as Ronald Reagan’s vice president).
There have, however, been presidents who have taken the scalpel to a broader section of history. Reagan revoked 122 of Harry Truman’s executive orders, and Richard Nixon revoked more of John F. Kennedy’s executive actions than those of Lyndon Johnson, whom he succeeded.
So don’t be surprised if the Trump administration begins more fervently crossing out past executive actions. Based on history, Trump is more likely to focus on Obama’s actions. But if Trump and his advisers are truly set on remaking Washington, they could take a broader focus, like Reagan and Nixon did.
Of course, what’s good for the goose is good for the gander. Trump’s orders themselves could one day be on the chopping block. And there are reasons to think Trump’s executive actions so far are particularly unlikely to survive.
In looking at the revocation of executive orders from 1937 to 2013, political scientist Sharece Thrower found a few patterns.
First, presidents are less likely to revoke executive orders issued by popular presidents, for fear of a public backlash. Trump’s orders so far don’t have that protection; more people disapprove of his job performance than approve, so far. Moreover, several of the orders are themselves unpopular, or at least not broadly popular. For instance, according to an ABC News/Washington Post poll released in January, only 37 percent of Americans are in favor of building the border wall, one subject of Trump’s border security and immigration enforcement order. Public approval of Trump’s immigration order, which imposed a temporary ban on travel from seven predominantly Muslim countries, is more complicated: Thousands of people turned up at airports around the country to protest, but polls show the country about evenly split on the measure. If support for those orders increases by the time a new president takes office, they’ll be likelier to survive. If support remains mixed — or drops further — there will be less of a disincentive for the next chief executive to do away with them.
Second, orders that are based on strong authority (e.g., a constitutional clause and a specific law) that enhance the scope of executive branch influence are more durable than actions that do less to broadly expand executive branch power; presidents tend to choose institutional preservation over revocation, even if the order was issued by a president of the opposing party. An example of this is Obama’s decision to not revoke George W. Bush’s faith-based initiatives, which provided government resources to religious and community organizations. Instead of revoking the order, withdrawing the stake of the executive branch in influencing these sorts of organizations, Obama merely amended the order to also include “neighborhood organizations.” At least one of Trump’s executive orders — the one restricting immigration — is already subject to legal challenges. If the order’s basis in legal authority is weak, it’s vulnerable to revocation (if the legal actions against it fail). On the other hand, the challenges to Trump’s order revolve around how much unfettered authority the president has over immigration, so if it survives, there will likely be some incentive for a future president to defend it.
Third, orders that were issued when the opposing party controlled at least one chamber of Congress have been more durable, because they tend to be more politically moderate in nature. Moderation is necessary, even for executive action, if the threat of congressional opposition is present. Orders issued under this condition have a longer life span, according to Thrower’s analysis. Trump, of course, is insulated from this opposition, as Republicans control both chambers of Congress.6 And several of the orders issued thus far by Trump — those on immigration and border security — have not been politically moderate. Indeed, some bipartisan opposition has formed against the immigration order, so it could be rescinded or narrowed before a new president can revoke it.
The possibility that an executive order will be revoked by a future president is a powerful check on a current president’s unilateral actions, but for Trump, the reality of that threat is four or eight years away. As a strategy, then, the White House’s issuing of executive actions — circumventing more traditional channels like bargaining with Congress — to push through Trump’s agenda could pay off, at least in the short term. But if his executive actions continue to draw legal challenges and the public continues to voice its disapproval, the legislative and judicial checks on presidential powers may be unleashed.