The ceremonial signing of executive orders has become a trademark of the Trump presidency, with elaborate photo ops and presentations of the president’s bizarre signature happening at a record-breaking rate. But in so doing, he has assigned himself — or, at least, the agencies and departments he ostensibly leads — a record amount of homework.
It’s not getting done.
The vast majority of Trump’s executive orders merely direct federal agencies to issue reviews and reports on a host of issues, from education to immigration to financial services to trade. Though the media often present executive orders as actually accomplishing the elimination of regulations or rollback of statutory law, they’re mostly a form of political theater designed to give the appearance of forward motion. “Let’s just dash off a memo, everyone can say we did something today,” said Jon Michaels, an administrative law professor at UCLA.
According to a review of all executive orders and memoranda, the president has ordered 88 different actions for federal agencies in 2017 alone, most of them direct reports to him. If you include actions that spill into 2018, 2019, and 2020, there are 154 specific actions in all.
This is actually a very conservative estimate, because some orders require every agency in the federal government, of which there are over 400, to submit a report.
Since the inauguration, 27 deadlines have come and gone, including 13 reports to the president, three reports to the Office of Management and Budget, three publications, three memoranda from OMB, and five miscellaneous actions like resumptions of a temporary ban or solicitation of public comment. The Intercept has only been able to determine that 13 of these 27 deadlines have been met, with at least two of those coming in late and another three under court-ordered injunction. The others are either unclear or didn’t yield a response from the federal agency under deadline, including the departments of Defense, State, Justice, Homeland Security, Commerce, Treasury, and the OMB.
More troubling is the fact that not a single report to the president has been made public, in whole or in part. Even when federal agencies have asserted that they delivered their reports, they have refused to make them available.
There’s no real consequence for missing a deadline, outside of perhaps an angry call from the president. But while hitting around 50 percent of self-imposed deadlines on time may translate into a good baseball batting average, it’s pretty terrible for government. “If Trump breaks the record issuing executive orders, and doesn’t do anything, that will say something about the competency of the administration,” said Eric Posner, a law professor with the University of Chicago.
At least one deadline appears to have been missed entirely, by the government’s own admission. At a May 8 appeals court hearing on the constitutionality of President Trump’s travel ban executive order, acting Solicitor General Jeffrey Wall acknowledged that the State Department and the Department of Homeland Security still had the active responsibility to implement a worldwide vetting program to identify individuals seeking to enter the country who support violent extremism. “My understanding is there has been progress at State and Homeland Security. They haven’t released anything yet but they’ve done a lot of work on it,” Wall told Judge Diana Gribbon Motz.
But an initial report on the progress of the program was due May 5, three days before Wall told the court that DHS and State hadn’t released anything. The Intercept asked DHS on May 5 whether it delivered the report, and spokesperson Jenny Burke said that a draft initial progress report was “under review now.” She added, “These reports are progress reports, to inform the president as to how we’re doing on the tasks we were given. They’re not timelines or deadlines for action.”
This is untrue. The executive order, which has the force of law, says explicitly that the president would receive an initial progress report on vetting procedures “within 60 days,” which is May 5. There’s no deadline for action, but there is a deadline for the progress report. Burke did not respond further to requests for clarification, and it remains unclear whether that report has ever been delivered.
This is not the only executive-imposed deadline that has been missed. Guidance in a regulatory reform memorandum that was due from the Office of Management and Budget on April 25 didn’t come out until April 28. A border security executive order directed the State Department to issue a report by March 26 identifying federal sources of aid and assistance to Mexico. A State Department spokesperson told The Intercept the report was “delivered to the White House on March 27, 2017.”
And a report from the Department of Homeland Security meant to detail adjustments to immigration status from foreign visitors, due June 4, has yet to be published. DHS spokesperson David Lapan told The Intercept on June 9 that “this report is nearly finalized” and that it would be made available when complete.
This may sound like nitpicking. But amid legislative gridlock and endless controversy, the reviews and reports generated by Trump’s executive orders and memoranda represent a large portion of his administration’s work product. Before winning the presidency, Trump called executive orders “a basic disaster.” But no president since Harry Truman has issued them at as high a rate, according to data compiled by the University of California, Santa Barbara.
Over time, these reviews could lead to real policy changes, though some would have to traverse the laborious regulatory process, with official notice and public comment. But eventually, the order to reorganize the executive branch can surely lead to reorganizing the executive branch. The orders streamlining permitting for infrastructure or domestic manufacturing or energy projects will probably streamline those regulations. The orders examining trade deals will set the course of negotiation over those trade deals. It all begins with those reports.
Therefore, the public ought to know what’s in them, and whether the Trump administration can even get them done on time.
The Trump administration’s uneven record on executive order reviews could be attributed to many factors. First, the federal government has a significant and worrying manpower shortage. Trump has been slow to fill political appointments across the government, instead centralizing power inside the White House. But leaving federal agencies on an island makes it difficult for them to fulfill the expansive mission of completing these executive reviews.
For example, the Treasury Department, which has eight different reports due this year, the first on June 3, only has one confirmed nominee, Treasury Secretary Steven Mnuchin. The choice for Mnuchin’s No. 2 recently dropped out. Treasury has already stated that the June 3 report reviewing all laws and regulations related to the financial system will not be done on time, and instead will be completed in stages. The full rollout could be months late. A Treasury spokesperson told The Intercept that the first report has been issued to the president, but would not be rolled out publicly until the week of June 12, at least nine days after the deadline.
Similarly, Trump issued a sweeping cybersecurity order on May 11, which mandates 19 different reports over the next three years, though almost none of the vacancies of key cybersecurity officers throughout the federal government have been filled. Acting officials generally hold the senior jobs for cybersecurity, with diminished authorities. “It’s a chaotic time for the agencies and (executive order reviews) get thrown on top of it,” said UCLA professor Jon Michaels.
The combination of not staffing the executive branch and weighing them down with several dozen reports on top of their normal duties raises concerns about how the administration operates more generally. And you don’t have to only look to executive order reviews to find missed deadlines and broken promises. The May 11 cybersecurity order was issued nearly a month past the deadline Trump’s campaign set. After a memorandum restarting the Keystone XL pipeline permitting, Trump promised to call the governor of Nebraska to go over the project, which runs through his state. The phone call never happened.
Even when deadlines do get met, the adequacy of the work product is suspect. For example, the one news item claiming that the Department of Defense sent its plan to the president for rebuilding the U.S. military makes it sound like nothing more than a plan to make a plan at select intervals in the future.
Similarly, as part of a memorandum related to the travel ban, the State Department is supposed to publish a monthly report on the number of visas issued by each global consular office, set out by category and country of issuance. The president also said State should publish “any other information the secretary of state considers appropriate, including information that the attorney general or secretary of homeland security may request be published.” But the set of reports, issued in April and May, only have the visa issuance information, the bare minimum of what was required. A companion report from the Department of Homeland Security meant to show adjustments to immigration status, due June 4, has not been published to date.
Finally, we don’t have a good handle on how these reviews are going because of government secrecy, particularly for reports delivered to the president. While mandated public actions — like the Commerce Department’s solicitation for public comment on the impact of “burdensome” domestic manufacturing regulations, or the State Department’s monthly visa reports, or various OMB memoranda — have been put on federal websites, none of the reports to the president have been made public, even in a redacted version.
Not all these reports contain what would be considered classified information; the State Department did not respond to a request to release its report on sources of federal aid to Mexico, for example, even though the U.S. Agency for International Development has published estimates of that in the past. “Generally, these are questions of domestic regulatory governance, usually not the stuff that’s kept from the public,” said Jon Michaels of UCLA. “And when it is, it raises questions.”
As an example of how closely these reviews are being held, when trade publication MeriTalk asked 11 federal agencies in April how they were complying with Trump’s executive order to reorganize the government, only one (the Federal Trade Commission) responded with anything of substance. The others either made bland statements that they were working on it, refused to comment, or said that they couldn’t respond until more appointees were in place.
Similarly, CNBC asked 20 agencies whether they had designated a regulatory reform officer, as required by a February executive order; only four of the 20 agencies provided an actual name. Bloomberg was only able to get two names out of the 10 agencies it asked.
OMB would not tell The Intercept whether those regulatory reform officers completed a progress report due May 25, identifying regulatory rollbacks within their agencies. The Intercept then contacted nine federal agencies to inquire about their progress reports. Only one of the nine, the Department of Homeland Security, would confirm completion of the report, and when asked to show it, responded, “The report has been produced, however is not a public document.” The departments of Transportation, Interior, Education, Commerce, Defense, and Health and Human Services, along with the Environmental Protection Agency and the Federal Energy Regulatory Commission, would not confirm that they completed the progress report.
Past presidents have tried to block the public release of internal reports with national security information. The New York Times filed Freedom of Information Act lawsuits to get at Obama administration threat assessment reports for detainees at Guantánamo Bay; that case is still going through the courts. But Obama’s Detention Policy Task Force released its reports publicly, despite the sensitivity of the topic, and the administration did eventually publish unclassified versions of other reviews. And non-national security reviews, like reports of the Obama-era Economic Recovery Advisory Board, always got released.
At the very least, internal reviews have been distributed in some form to Congress, so it can conduct oversight. “I recall most of that stuff was made available to the relevant committee,” said Richard Painter, former chief ethics lawyer for the George W. Bush administration. “We had issues with Congress, but there was an attempt to work with them.”
One key Democrat expressed alarm over the lack of communication. “The Trump administration continues to degrade transparency and promote secrecy,” said Rep. Elijah Cummings, ranking Democrat on the House Oversight and Government Reform Committee. “If the president wants to direct millions of taxpayer dollars to dozens of new reviews and reports, then the American people — and Congress in particular — deserve to know exactly how the White House is spending their money. These reports should be publicly released when they are submitted to the president.”
Indeed, the Trump administration has been criticized for not answering formal requests from Congress, particularly from Democrats. Congressman John Sarbanes, D-Md., conducted an informal audit, finding over 100 unanswered letters to the executive branch just between Inauguration Day and mid-March.
The White House never responded to several requests for comment.