A new global gag rule: The trouble with governing by executive order

President Donald J. Trump is fulfilling a campaign promise to issue executive orders in his first days in office to reverse some Obama-era policies. There is nothing unusual about his actions, as reversing past executive orders is a common practice by new presidents. It is the simplest, most direct and immediate way for a president to please various electoral constituencies and make an immediate policy impact.

Yet it is appropriate to ask whether this is the most appropriate way to create policy. One example showcases the troubles with governing by executive order: the policy commonly referred to as the global “gag rule”.

{mosads}In brief, in the past that policy has prohibited the use of U.S. federal funds for international health and family planning agencies that either provide abortion-related services or that merely mention the option of abortion. Former president Barack Obama overturned the policy and President Trump reinstated it. No deliberation, no legislative involvement, just a presidential directive upon taking office has decided the issue.

Prior to the administration of Ronald Reagan, there was a bipartisan policy consensus in the U.S. to support international population control through financial assistance for international family planning programs. Such a consensus emerged after lengthy periods of debate, compromises and eventually legislative enactments with presidential consent.

Beginning in the Lyndon B. Johnson administration, and through both Republican and Democratic administrations, U.S. policy in this area followed the customary path of legislative-executive consensus building over authorizations and appropriations. Consider now the past actions by presidents to enact-affirm-repeal-reenact-repeal and now reenact the policy again.

Enact: President Reagan initiated a major shift in U.S. policy through a policy pronouncement that became known as the “Mexico City Policy”, but also labeled derisively as the global “gag rule”. Reagan used the occasion of an international conference to announce a fundamental shift in policy without congressional involvement. Although Reagan claimed that his decision had some basis of authority granted by Congress in the Helms-Hyde Amendment, what he did in fact went far beyond the specifics of any legislative grants. The policy precluded the use of any U.S. federal monies for international family planning organizations that provided abortion services or abortion-related counseling. If international family planning organizations wanted to receive continued U.S. assistance, they could not provide any counseling on abortion. This action upended years of consensus building policy development by the Congress and successive presidential administrations.

Affirm: This policy was affirmed and strengthened by an executive order by President George H.W. Bush.

Repeal: On Jan. 22, 1993, two days after his inauguration as president, Bill Clinton issued a presidential memorandum to the acting administrator of USAID that reversed the Mexico City Policy and lifted all of its limitations.

Reenact: On Jan. 22, 2001, two days after his inauguration as president, George W. Bush issued a presidential memorandum that reversed Clinton’s reversal and reinstated the Mexico City Policy and all of its restrictions.

Repeal Again: On Jan. 23, 2009, President Barack Obama repealed the global gag rule and reinstated U.S. federal aid to the previously affected international health and family planning organizations.

Reenact Again: On Jan. 23, 2017, President Donald Trump, in a move that tangibly rewards his religious conservative constituency, has reinstated the Mexico City Policy.  

These constant shifts in policy are the result of presidents taking direct action unconstrained by other policymaking forces that likely would have facilitated greater policy continuity. The lack of policy continuity of course has had consequences for the intended beneficiaries of U.S. aid programs, not to mention the utter confusion caused for international aid organizations that have been spun back and forth over shifting policies from one administration to the next.

In fairness, Trump is following a now long established pattern of unilateral presidential action in the first days of an administration to decide an issue that should be addressed through the normal process of legislative deliberation and negotiation with the president. No one expected differently. Judging from his already low approval ratings and the sizeable anti-Trump women’s rights marches all over the country, his best political calculation appears to be to continue to keep faith with his core electoral constituencies, and none is more pro-Trump right now than the evangelical conservatives. The trouble is, what Trump does today by executive order will eventually be reversed. Rule by executive order only ensures temporary accomplishments.

Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University. He is author of the books The President’s Czars (with Mitchel A. Sollenberger) and Executive Privilege.