First Executive Order of POTUS 45?

Update: Based on the Federal Register published January 24, 2017, this is indeed the first official executive order of POTUS 45. It is order number 13765. The final Obama executive order is 13764.

The “From the Press Office” section of the White House website has not been updated since it was scrubbed shortly after noon EST Friday, January 20, 2017. As a result, the executive orders reported in various news media since then are not available to the general public yet. I had been waiting to find and read the official orders there before commenting, but it appears it will be a while before they will be available.

Because the media have so widely reported the signing of executive orders, I have searched numerous times online trying to find any other sites that might have full text of those orders, but so far have found only a couple of news sites that have posted the full text of only one order. For now, I am going to consider it the first one issued by POTUS 45, although eventually I should be able to find all orders and the sequence in the Federal Register.

The most talked about order is the one related to the Affordable Care Act. I’ve chosen to link to the first site that I found had posted the full text. Special thanks to David Kurtz, Managing Editor and Washington Bureau Chief of Talking Points Memo, who posted the full text of EXECUTIVE ORDER – MINIMIZING THE ECONOMIC BURDEN OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT PENDING REPEAL.

This is a brief order – just one page – with standard language at the beginning declaring authority for the action and at the end with the normal disclaimers regarding what is not authorized by this action. Despite its brevity, it is a significant order.

Media reports and pundit comments have been all over the board on this one. Some see it as significant because of the potential for radically reducing the effectiveness of the Affordable Care Act (ACA). Others say the order doesn’t say anything significant or actually do anything. My view is it is significant for several reasons.

First, it is symbolically important. It was essential for the new administration to follow through on the promise to do something about the ACA the first day in office. Just issuing this order meets that expectation of his minions and he can say he did what he promised to do.

Second, as general and broad as the language of the order is, it is clearly a signal that repealing and replacing the ACA is a priority and expectation of this president. If the Congress does not act to do so, the president will have more ammunition to fire at the “GOP establishment” he has so often railed against.

Third, issuing broad powers to all executive department leaders (of those departments that have any part in implementation of ACA) to do what they can to “minimize the unwarranted economic and regulatory burdens of the Act” is an important directive that could well lead to significant implementation changes eventually.

Fourth, as noted in a useful Vox article posted yesterday, some of the language is quite telling.  Two items were cited as significant by health law expert Tim Jost, a law professor at Washington and Lee College, (who was interviewed by Sarah Kliff, the author of the Vox article). The first is a phrase used at the beginning of three paragraphs of the order – “To the maximum extent permitted by law…” The significance of that phrase is the clear recognition that the president cannot change legislation unilaterally. [Ed. note: For an autocrat, that is an important implicit admission.]

The second item: the order states all regulatory changes will follow the Administrative Procedure Act. That is significant in that no regulatory changes happen overnight. There is a long, detailed process for developing, commenting on, and eventually issuing regulations for any act of congress.

In addition to the above, I think it is possible to glean from this order something of how this president is going to operate. Because I have so little confidence in his abilities, I suspect he personally had relatively little to do with the drafting of this order other than saying in broad terms something to the effect of “do what you can to gut Obamacare”. He may not have even read the order before signing it, and if he did, I doubt he understood the language fully. If I am correct, that is actually a bit of good news. It means he is going to trust his legal team to write his executive orders and they are not going to go outside the law. I also think the authorization of the department heads to act may be a signal of what is to come in this administration – a deep delegation to his team. Could be good news or bad news depending on the competence of the department secretary, if that is true. Overall, I think this will be good because the last thing we need is for him to attempt to micromanage what he has no ability to comprehend.

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White House Website Change

Someone (most likely a team of individuals) has already changed the front page of the White House official website to reflect the change of presidents.

I checked the site just before noon EST and it still was the same as previous days under the Obama administration.

I checked again around 12:20 p.m. EST and the page now has a link to view the inauguration live. All of the presidential action pages are cleared of previous actions. The archiving has apparently been done.

I have not taken time yet to follow the live links that have anything, such as the issues page, but I did check to see if the ‘We the People’ petitions page was still there, and it is, but all the previous petitions are gone. I’m very curious to see how long it takes before a new petition is created.

Update: 1-21-17

It did not take very long before new petitions were posted on the site. For a while the website was inconsistent in operation with occasional glitches, but it seems to be working fine now.

Interestingly, the first petition posted on my last check (around 9:00 p.m. EST) had well over 160,000 signatures of support!

Now it will be interesting to see when (and even if) the White House responds to it.

Update: 1-22-17

We have the answer to when the White House will respond.  Today, a spokesperson for the president said he will not be releasing his tax returns. Now well over 200,000 signatures on the petition and here is the answer.

End and Beginning

Right now it appears the last action of President Obama is the letter on Guantanamo signed yesterday. Ironically, the executive order for closure of Guantanamo was the 4th order of this president signed January 22, 2009.

According to the National Archive, his very first executive order (signed January 21, 2009) was on the subject of presidential records disclosure. It revoked the order by President George W. Bush that was signed November 1, 2001.

I have n0t taken the time yet to dig into the detail of changes, but may revisit this topic if POTUS 45 issues a new order revoking Obama’s.

Letter from the President — Report with Respect to Guantanamo

Not surprisingly, this letter from President Obama to the leaders of Congress is blunt and at times scathing.

He reports a one time high of nearly 800 detainees is now down to 41. During the Obama years, 196 have been transferred out. He articulates the bipartisan support is still there, as it was when he took office in 2009, for closing Guantanamo detainment facility. He expresses once again his challenge to Congress to close the facility and move the remaining detainees to secure federal prisons.

Included with the letter is an updated plan for closing of the facility submitted by the Defense Department.

Memorandum posted January 19, 2017.

Executive Order — Amending the Civil Service Rules, Executive Order 13488, and Executive Order 13467

This is a very long and technical executive order. As best I can tell, it is basically about changes to the Civil Service hiring rules. At this point, I do not intend to delve any deeper into it because it appears to be routine updating of previously issued orders and documents.

Executive Order posted January 17, 2017

Presidential Memorandum — Delegating Authority under the National Defense Authorization Act for Fiscal Year 2017

At first reading I was scratching my head over this memorandum. It is so brief, with much of the language perfunctory legal stuff citing code and law as authority for the action, that it was impossible to figure out what it is about without more digging. Here is the primary operative paragraph of the memorandum:

“I hereby delegate to the Secretary of State the authority vested in the President by section 1287(c)(2) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114-328) (the “Act”), to designate a senior official to develop guidance for the Global Engagement Center relating to relevant privacy and civil liberties laws, and to ensure compliance with such guidance.”

After doing a little online searching, I discovered the State Department announcement of the new Global Engagement Center just about a year ago. Then in July last year the State Department issued a fact sheet with more information about the center. Its purpose according to that statement: “The Global Engagement Center is an interagency entity, housed at the State Department, which is charged with coordinating U.S. counterterrorism messaging to foreign audiences.” It also states the Center was officially created by an executive order in March 2016.

After finding those details, it is a bit more clear that the memorandum is articulating the need to pay attention to privacy and civil liberty laws in the work of the Global Engagement Center.

The next paragraph of the memorandum is interesting.

“Any reference in this memorandum to the Act shall be deemed to be a reference to any future Act that is the same or substantially the same as such provision.”

Perhaps I just don’t have enough experience following these memoranda and the above sentence may be somewhat routine, but it does not seem to be so. It appears to be a preemptive action to guard against future changes to the law that might weaken this concern for privacy and civil liberty in these communication efforts.

Memorandum posted January 17, 2017

Most Prolific Day – January 13, 2017

Well, that was some Friday the 13th!

According to my count no fewer than 25 presidential actions were posted to the White House website on that day. The vast majority were memoranda, but there were three executive orders and a couple of proclamations in the mix as well.

The executive orders (and one memorandum) have already been dealt with in previous posts, but just for the record, I am going to list all the other memoranda and proclamations here without further comment, other than to highlight National Religious Freedom Day – January 16, 2017.

  • Presidential Memorandum — The Director of the Federal Mediation and Conciliation Service
  • Presidential Memorandum — The Director of the Office of Science and Technology Policy
  • Presidential Memorandum — The Chairman of the Council on Environmental Quality
  • Letters from the President — Designation of the Chair of the United States International Trade Commission
  • Presidential Proclamation — Martin Luther King, Jr., Federal Holiday, 2017
  • Presidential Memorandum — Continuing to Expand Opportunity for All Young People
  • Letter — Continuation of National Emergency with Respect to Terrorists Who Threaten to Disrupt the Middle East Peace Process
  • Notice — Continuation of National Emergency with Respect to Terrorists Who Threaten to Disrupt the Middle East Peace Process
  • Notice — Continuation of the National Emergency with Respect to Libya
  • Notice — Continuation of National Emergency with Respect to Ukraine
  • Letter — Continuation of National Emergency with Respect to Ukraine
  • Notice — Continuation of National Emergency with Respect to Zimbabwe
  • Letter — Continuation of National Emergency with Respect to Zimbabwe
  • Letter — Continuation of National Emergency with Respect to Cuba
  • Notice — Continuation of National Emergency with Respect to Cuba
  • Letter — Continuation of the National Emergency with Respect to Libya
  • Notice — Continuation of the National Emergency with Respect to Venezuela
  • Letter — Continuation of the National Emergency with Respect to Venezuela
  • Notice — Continuation of the National Emergency With Respect to Iran
  • Letter — Continuation of the National Emergency With Respect to Iran
  • Presidential Proclamation — Religious Freedom Day, 2017

All posted January 13, 2017.