Anything But Quiet

This is day six since the last posting of any presidential action on the White House website. In some respects, it was inevitable the orders, memoranda, etc. were going to appear less frequently, but this is a precipitous drop for this president. Could it be the president is otherwise occupied (distracted)?

I don’t intend to write about every sordid detail of this administrations’ bungling activities, so will simply mention the firing of Michael Flynn, now former National Security Advisor, and today’s news of the nominee for Secretary of Labor, Andrew Puzder, withdrawing his name from consideration under fire from an increasing number of Republicans, as examples of the incompetence, corruption, and floundering of this administration. These are just two very recent examples of the chaos that has ensued. Today’s Non Sequitur comic by Wiley Miller seems particularly appropriate. Funny, but not funny.

Because the past few weeks have been such a disaster and it promises to get worse not better, I’ve decided to expand the topics of focus for this blog, at least for a while. In addition to writing about presidential executive actions (and in some cases consequences of them such as court cases) and a few of my own comments/observations/opinions, I intend to follow two threads of media attention that appear to be growing public concerns, or at least increasing in news coverage by many media outlets. One is the mental health or mental competence of the president. The other is the numerous calls for accountability of the president or calls for outright impeachment. Neither of these are new. In fact, both have been present in the press at least since the election, but there does seem to be greater frequency of stories being written or produced on these two topics.

While at this point much of this is speculation, ultimately either situation could lead to removal from office. The Constitution does allow for removal for incompetence, presumably including mental incompetence. The Constitution also has two Emoluments clauses that could be used to impeach the president.

In a future post, I will address some of what I have read and am following regarding the president’s mental health. It is an active topic with a number of mental health professionals taking public positions in spite of the long followed “Goldwater Rule” that basically prohibits such professionals from diagnosing anyone, particularly a public figure, without actually interviewing them personally.

Today, on the emoluments issue, I will point to an interesting article by Judd Legum of Think Progress on how POTUS 45 can be held accountable for violating the Constitution without the help of the Republican Congress that is currently a major road block. The gist of the article is a report on potential legal actions that could be taken by a state’s Attorney General. What the article points out is that public official has a much better case for proving “standing” as required by law than a private individual or corporation would. Legum also suggests the state of New York might be the ideal place for this to get done. Washington, D. C. might also be a likely success location.

I do not expect the Congress to do anything about this president’s myriad conflicts of interest anytime soon, so will be watching to see if any Attorney General decides to act on behalf of the people.

 

More News Reports of Actions

Update: Since I first posted this just a few minutes ago, the White House Press Office has now posted all the executive actions. Needless to say, I am pleased. That makes some of what I said below obsolete.

Today, January 24, 2017, there are numerous news reports of more executive actions taken by POTUS 45. I have to say I am encouraged by the attention the news media are giving to them. One of my concerns when I started this blog was the fact that, generally speaking, executive orders and other presidential actions were not widely covered routinely.

We are in the very early days of this administration, so at some point, some other “shiny object” may well divert the attention of the media, and future actions will again go unreported, but for now the coverage is better than I expected.

It is still too early to conclude the White House Press Office will not be posting these actions in a timely fashion to the White House Website, as was done by the Obama staff, but the fact the site has not changed at all since the first day is not a good sign.

As I said in a post yesterday, finding full texts before they are published in the Federal Register is very difficult without the White House site postings. So, I have decided to save myself the time and trouble of attempting to find full texts in media reports, and just wait for them to appear in the Federal Register. That will mean I will be less timely in my reviews, but a delay of a few days should not create any significant problems.

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.