There’s not a lot that’s funny about President Trump’s January 27 executive order temporarily banning immigrants and refugees from seven majority Muslim countries.
But you have to admit this is a little funny: Trump’s executive order appears to brazenly violate another executive order about how the government should issue executive orders.
It’s sort of like the Supreme Court declaring the Constitution to be unconstitutional.
Presidential executive orders have ranged in history from piddling (giving the executive branch workforce a half day on Christmas Eve) to monumental (the Emancipation Proclamation). Somewhere nearer the piddling end of the spectrum is Executive Order 11030, signed by President Kennedy in 1962 and titled “Preparation, presentation, filing, and publication of Executive orders and proclamations.”
Nevertheless, recent presidents cared deeply about 11030 — in fact, they’ve cared to a degree that’s a little bizarre. For instance, George W. Bush signed Executive Order 13403 in 2006, changing the 1 1/2 inch left-hand margin for executive orders specified in 11030 to 1 inch.
Then in 2014, Obama noticed Bush’s executive order has merely struck out “1 1/2″ from 11030 and replaced it with “1.” This meant 11030 now demanded that executive orders have a left-hand margin of “1 inches.” Realizing this improper pluralization shook the foundations of the republic, Obama signed an executive order “striking ‘inches’ where it appears after the phrase ‘approximately 1′ and inserting ‘inch’.”
Trump’s violation of 11030 goes way beyond improper margins, however. Section 2 begins, “A proposed Executive order or proclamation shall first be submitted … to the Director of the Office of Management and Budget,” which is part of the White House. If the director of the OMB approves the executive order, it goes to the Justice Department and then to the president.
But there’s no sign Trump’s immigration executive order was routed through the OMB at the start, and lots of evidence it wasn’t.
We know the Justice Department’s Office of Legal Counsel received Trump’s executive order, because it sent a memo back to the White House approving it on January 27.
The OLC memo begins by stating that “the attached proposed Executive Order was prepared by the Domestic Policy Council and forwarded to this Department for review.” That is, it went directly from the Domestic Policy Council at the White House to the Justice Department — with no stop at the OMB in between.
Asked whether it had been receiving draft executive orders from the OMB, a Justice Department spokesperson responded: “We’ll decline and defer to OMB on that question.”
No one at the Office of Management and Budget responded at all to repeated inquiries about whether it was first office to receive Trump’s draft executive orders. The regular White House press office also did not respond. Notably, the OMB did not produce a one-paragraph “budgetary impact analysis” of Trump’s January 27 executive order until January 30.
Moreover, the river of White House leaks about the immigration executive order all agree that it was produced in a highly unconventional way. As Politico reported, the draft order “was so tightly held that White House aides, top Cabinet officials, Republican leaders on Capitol Hill and other Trump allies had no idea what was in it even when it was signed — and that was just how top advisers and aides wanted it.”
Of course, given all the grave potential flaws in Trump’s executive order, contravening Executive Order 11030 is the least of it. Kenneth Mayer, a professor at the University of Wisconsin-Madison and an academic expert on executive orders, says, “What’s the remedy for a violation? There probably isn’t one,” although he does believe “This could go into a claim that the government didn’t follow its own rules, and that makes it capricious.”
Its main significance is just as another sign that the Trump administration has no interest in being minimally competent. According to Matthew Miller, Eric Holder’s spokesperson when he was attorney general, “It wouldn’t surprise me if they didn’t know [Executive Order 11030] existed.” Mayer views the administration’s overall approach to executive orders as “shocking” and “just breathtaking, the degree of informality and casualness and disorganization.”