Cansplained: Executive orders

Cansplain (v): (not to be confused with mansplain)

1. to nicely explain something about the United States, to Canadians;
2. vice versa.

Within minutes of one another, two people asked me to cansplain executive orders. Donald Trump is signing a lot of these, and people are distressed because they're seeming to do all kinds of terrible things. What are they?

You could, of course, read Wikipedia. Here's a fast-and-loose version.

Bureaucracy

Most of the work of government happens in a bureaucracy that's organized into units that I will call ‘departments’. There are some important differences:

Thing	Canada	United States
Head of government	Member of Parliament who is the leader of the party with the most seats.	Elected directly through the Electoral College; not a member of Congress.
Example department	Health Canada	Health & Human Services
Head of department	‘Minister’ (usually)	‘Secretary’
How chosen	Elected as a Member of Parliament, then appointed by the Prime Minister.	Appointed by the President, then confirmed by the (elected) Senate.

And some similarities:

• The legislature (Parliament or Congress) passes enabling legislation saying, “There shall be a Department of such-and-such, and its responsibilities are to do X, Y, and Z.” In this way, it delegates its authority, so that it doesn't have to pass a new law each time something (for instance) health-related must be done. The legislature might also:

  • set up processes of rule-making, so that when large departments change what they do in ways that affect many people, they are required to give advance notice, consult the public, study the anticipated effects, etc.
  • later pass amendments to empower (“also do U, V, and W”) or limit (“you are not allowed to get involved in A, B, or C”) departments.
  • through the budgets it passes each year, add restrictions or conditions on funding (“it is forbidden to spend money on A, B, or C”), and control departments' actions by providing or withholding money.

• The Minister or Secretary¹ can order the staff of the department to do pretty much anything, as long as it doesn't:

  1. Overstep this specific authority given to the department by the legislature, or
  2. Break the laws generally (including doing unconstitutional things).

  If there's a dispute on either of these points, that's where (in both countries) the courts get involved, and may order government to do, or stop doing, certain things.

  And, of course, things cost money.

Executive orders

In the U.S., the President will sign executive orders, short documents directing one or more departments to do (or stop doing) certain things. His appointed heads of department then carry these things out. To my knowledge, EOs are entirely customary. That is, the President is not required to issue them; (s)he could simply phone the department head. But most presidents have chosen to do so, since EOs were first used.

In Canada, essentially the same thing could happen! However, in practice, decisions are often made by Cabinet in confidence, and then implemented with no signed document or proclamation ever coming from the Prime Minister's office.²

Who's more powerful?

To sidestep trenchant opposition in Congress, Barack Obama did many things by EO, instead of gambling on laws that might not pass. This means they were carefully designed to only contain actions that fit the criteria above. In turn, Trump can neatly nullify the same actions, also by EO.

If (hypothetically) a U.S. President were to stop issuing EOs altogether and make policy by directing his appointees off-the-record, I suspect people might scream bloody murder, certain that undesirable things were happening. Yet in Canada, this happens every day! For this reason, Mark Jaccard and others refer to Canadian First Ministers (Premiers and the PM) as “temporary dictators.”

Three Conservative governments under Stephen Harper pursued policies that many Canadians disagreed with—yet some of these actions were not clearly signalled or only became known after the fact, because there was no custom of issuing EOs or notices of Cabinet decision. It will be interesting to see whether the different mechanism in the U.S., by giving opponents of the Trump Administration more advance warning, will allow them to organize more effective opposition.³