Trump's Rule Through Executive Order

As I have written previously, I changed the focus of this blog in order to document the autocratic rule of cult leader, convicted felon, and failed President Donald Trump. In earlier posts, I described many of the specific actions he has taken to implement autocracy. Today, I want to delve into the techniques that Trump uses to exert control, not just of government, but other components of civil society as well. Trump's tactics include bullying, extortion, and divide and conquer. Many, if not most, of Trump's actions are illegal, resulting in several being tied up in court at the moment. Nevertheless, Trump has had considerable success in asserting his will and forcing both people and institutions to acquiesce to his demands. Today I will discuss how Trump is able to do this.

As I have brought up in several blog posts, Trump's primary means of ruling is through executive orders. It is important to understand exactly what these are and the legal standing that they hold. First and foremost, they do not create or modify laws. They are simply directives to the executive branch. They are more or less glorified inter-office memos. Only Congress can make laws. Those laws can often be fleshed out with regulations created by the executive branch, and Trump can influence those regulations with EOs, but he cannot create a law. Moreover, EOs have no authority outside the executive branch. Trump cannot legally use an EO to order Congress, a court, a university, a law firm, or a media outlet to do or not do something. EOs are only a method of communicating to executive branch staff. However, Trump has been giving force to his EOs, not because of their inherent authority, but due to his willingness to use the levers of government to either punish or reward those targeted by the EOs.

As I have discussed in earlier blog posts, Trump has targeted several law firms with EOs meant to punish them. Trump has no legal authority to tell a law firm or any other private company how to run its business. However, Trump has attempted to do this by cutting off the firms' access to government. His EOs have ordered executive branch staff to cease communications with the targeted firms, prohibit the firms from accessing government buildings, stop any government contracts with the firms, strip security clearances, and take other measures to make it impossible for the law firms to adequately represent many of their clients. In essence, Trump has ordered the executive branch to take actions that would likely put the law firms out of business. Many of Trump's directives are illegal either in whole or in part. As such, the firms can pursue legal action in the courts to seek relief. However, legal processes are slow, expensive, and not always predictable. How many law firms are prepared to undertake a legal battle that will likely cost hundreds of thousands of dollars and could take years to complete, possibly going as far as the U.S. Supreme Court that has a history of rulings favorable to Trump (and includes three Trump appointees)?

In response to Trump's EOs that have now targeted four different firms, the law firms have responded with different strategies. Perkins Coie LLP chose a legal response and challenged the punitive order in court. Almost immediately, the law firm was granted a temporary restraining order by Judge Beryl A. Howell, who seemed appalled by the government's attempt to punish the law firm. Howell claimed that the "retaliatory animus" of the EO was "clear on its face", amounted to unconstitutional "viewpoint discrimination", and "runs head on into the wall of First Amendment protections." In response, the Trump administration filed a motion seeking to disqualify Howell and have her removed from the case. The government will probably be unsuccessful in this attempt, but it will have the effect of drawing the case out longer. Regardless, Perkins Coie has a long road ahead of it in its legal battle.

In contrast, Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss), chose capitulation. After Trump announced an executive order targeting the firm, its chairman, Brad S. Karp, quickly flew to Washington to negotiate with Trump. In exchange for an agreement by Paul Weiss to provide $40 million in pro bono legal services to support Trump's priorities and to change many of its business practices, Trump revoked his EO. This is a real-life demonstration of the game theory thought experiment of the prisoner's dilemma. As the prisoner's dilemma goes, each prisoner can be freed by cooperating with authorities. However, if neither cooperates, both can go free. In the case of Trump's attacks on law firms, a united front within the legal profession would likely triumph over the President. However, according to Karp, rather than joining with Paul Weiss and standing up for principles, other law firms attempted to poach Paul Weiss' attorneys and clients. The law firm, unable to count on the support of other practices, decided to look out for itself and cut a deal. The Perkins Coie example shows that Paul Weiss would have likely prevailed in legal action, but if it lost its clients and top attorneys along the way, the firm would have ultimately won the battle but lost the war. This example shows Trump's ability to divide and conquer and Trump's illegal threats were successful in causing a law firm that he disliked to submit to his demands.

Another example of the Trump administration weaponizing government to punish those who don't toe the line occurred after Maine Governor Janet Mills publicly challenged Trump and rebuffed his demands regarding transgender students. Mills told Trump that she would "follow the law" and would "see you in court". Trump then threatened to unlawfully withhold all federal funding to Maine. In a more concrete action, acting commissioner of the Social Security Administration, Leland Dudek, took steps to prevent parents of newborn babies in Maine from obtaining Social Security numbers for their children at the hospital. Instead, parents would have to go in person to a Social Security office. This has not had the intended effect of encouraging Mills to concede, but it has created a significant inconvenience for new parents in Maine, especially those in rural areas. To his credit, Dudek reversed his action and admitted that he "screwed up".

Trump was successful in causing Columbia University to concede to his demands. Trump has issued several EOs that impact institutions of higher education. With regard to Columbia, Trump issued nine specific demands and withheld $400 million in federal funds. Again, this is outright extortion. Within days, the university agreed to almost all of Trump's demands in order to regain the money. This was a sad day for higher eduction in the United States as it sets a precedent for the federal government determining what can be taught and how it can be taught in universities. 

Trump is now attempting his EO strategy on a much more grandiose scale, issuing an executive order that attempts wide-scale changes to election procedures. Again, it is important to understand that an EO is not sufficient for such changes, and the President has no authority to make the changes that he is demanding. The federal government itself has very little authority over elections, which are mostly controlled by states. Yet, once again, Trump plans to weaponize the levers of the federal government to extort cooperation from the states. If past behavior is a precedent, Trump will reward the states that agree to his demands and punish those that don't. The executive order itself includes language cutting off certain federal funds to states that do not comply with its demands. Informally, Trump administration officials will likely make additional threats. Everything from highway funding to emergency assistance might be contingent upon the acceptance of Trump's terms. None of this is legal, of course, but Trump doesn't care. As was the case with law firms, some states will likely quickly submit and adopt Trump's demands. Others may simply ignore Trump. Some may take legal action to protect themselves.

Trump clearly desires to be a dictator, or at least an authoritarian ruler in the mold of Putin or Orbán. He sees Congress as a ceremonial body, suitable as a backdrop for the occasional speech, but not a source of law. The judicial branch is expected to be a rubber stamp and little more. Trump expects that the sole source of authority will be his pen with which he signs executive orders. These documents have no authority outside the executive branch and, despite Trump's wishes, do not create laws. Yet, by using the levers and tools of government, Trump is extorting compliance. As acquiescence becomes more common, Trump's rule by EO will become normalized and accepted. Non-cooperation is the minimum of resistance that we should expect from those in positions to make decisions. Paul Weiss, by conceding to Trump's illegal threats, endangered the entire legal community. If Trump succeeds in intimidating law firms so that they are afraid to take any actions that may elicit his ire, our legal system will collapse. The judicial branch offers some hope of resisting Trump and, for those who are able, that path should be utilized. But none of us should be under the illusion that Trump has any authority to rule by executive order.