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Law Professor Outlines Historical Use Of Presidential Executive Orders

ROBERT SIEGEL, HOST:

President Trump has put his signature on a lot of documents during his first few days in the White House, among them an executive order on Obamacare, presidential memos on controversial oil pipelines, freezing hiring in the federal government and formally withdrawing from a 12-nation trade pact. Some of these actions are symbolic. Others could be sweeping. None require anything from Congress. And joining me to discuss how presidents use executive actions is Cristina Rodriguez, who's a law professor from Yale. Welcome to the program.

CRISTINA RODRIGUEZ: Thanks so much.

SIEGEL: From the very beginnings of the Republic, presidents have been taking actions, executive actions, without Congress taking part. Historically, how have presidents used the - say, the executive order?

RODRIGUEZ: So the executive order is a specific form that allows the president to do two things. The first is to issue directives about how the executive branch is going to operate to manage the internal affairs of his department. The second form of executive order stems from statutory authority that's been delegated. In statutes, Congress often gives the president power to make certain decisions. In executive orders that are under this umbrella, the president is careful to cite that statutory authority in order to justify the steps that he's taking.

SIEGEL: Presumably within the limits of the law. They can't go outside...

RODRIGUEZ: Yes.

SIEGEL: ...The law, can they? Yeah. Can you walk us through some famous executive actions and some that accomplished things that we might be familiar with?

RODRIGUEZ: Well, there are, of course, the executive orders issued during times of war that, for example, ordered a curfew for Japanese-Americans on the West Coast or their internment in camps. Those are notorious uses of executive action. But they run the gamut from deciding we're not going to enforce the Voting Rights Act or we're not going to supervise police in local jurisdictions to more mundane things about how the executive branch should operate.

SIEGEL: President Trump signed an executive order directing government agencies to - and this is a quote - "ease the burdens of Obamacare" while the new administration and Congress work toward repealing and replacing the Affordable Care Act. He signed a presidential memorandum on having pipelines fitted with American materials. What's the difference between an executive order in one case and a presidential memorandum in the other?

RODRIGUEZ: There's not that significant a difference. I think that executive orders might generally be regarded as a matter of custom as having higher stature. But each of them goes through a process of vetting in the Department of Justice to ensure that they comply with law. They are parallel ways of the president announcing his policy agenda.

SIEGEL: Let me give you a not-so-hypothetical hypothetical about a presidential action. There's a provision in the Affordable Care Act that has been upheld by the Supreme Court that the government can impose a mandate on people to get health insurance. Can President Trump simply repeal that mandate and say, here's an executive action that no longer is government policy?

RODRIGUEZ: He can't repeal the mandate. That's in the statute, and Congress would have to redo that. What he could do is not enforce the penalties - or enforce the tax, I should say, associated with the mandate. He could direct the IRS not to impose that tax on people who don't buy health insurance. So that's another source of authority that I imagine the new president is going to try to use to decide what laws he thinks ought to be enforced vigorously and which ones are not. And presidents have a wide berth to do that.

SIEGEL: His Republican critics claim that Barack Obama did a tremendous amount through executive action rather than legislation and pushed the limits of executive action. Does that - is that true, or have all presidents done this quite a bit?

RODRIGUEZ: I think all presidents have done it quite a bit. I think you're likely to see presidents who have hostile Congresses using executive action more. And President Obama in particular sought to go through the legislative process to advance a lot of his agenda, but in the absence of traction turns to what he has the authority to do. But the number of executive orders doesn't tell you anything about whether those orders are lawful or whether the president has exceeded his authority. What matters is what he's doing in the orders. And so he could do a lot of things but do them all in an authorized fashion.

SIEGEL: Professor Rodriguez, thanks for talking with us today.

RODRIGUEZ: Thank you so much. It was my pleasure.

SIEGEL: Cristina Rodriguez, a professor of law at Yale University. Transcript provided by NPR, Copyright NPR.