Companies find themselves in the most dynamic regulatory environment in recent memory. That is due in part to changes President Trump has made to the way the White House interacts with the agencies. By dramatically increasing the number, tempo, and detail of executive orders, Trump has strengthened presidential control of the executive branch. The White House has never mattered more in regulatory policy-making, and companies should adjust their advocacy efforts accordingly.
Earlier this month, the Supreme Court heard argument in Trump v. Slaughter. At issue is the President’s authority to fire members of independent agencies. The case is important, especially for clients regulated by the SEC, FTC, FERC, and other independent regulators. Yet when it comes to presidential control of the executive branch, legal authority is only half the question. There is also the President’s capacity to exercise his authorities. As an old Washington adage has it, a minute of the President’s time is the scarcest national resource; presidents have little time to outline their major policy priorities, let alone monitor for agency compliance. Just as the second Trump administration has sought to expand the President’s legal authorities, it has adopted practices to expand the President’s capacity to direct executive action.
One of these practices is now on vivid display: the Trump administration’s dramatically expanded use of executive orders. A few days ago, President Trump issued his 221st executive order. That is an important milestone because it means Trump in his second term has already issued more executive orders than any other 21st century president in any single term. Trump himself held the prior record: the four years of his first term saw 220 executive orders, decisively beating out runner-up President George W. Bush’s 173 first-term orders. But in his second term, Trump has already issued more executive orders than in his entire first term. If he continues at his present rate, he will issue 980 executive orders this term—the most since President Franklin D. Roosevelt’s second term.
Trump’s expanded use of executive orders matters because these orders are an important tool in the President’s toolkit for controlling the executive branch. The reason is their publicity: unlike a phone call or conversation in the Oval Office, the directions the President gives in an executive order become a matter of public record. This means executive orders tend to be more durable than private direction, and White House staff have an easier time understanding precisely what the President has directed agencies to do and monitoring to ensure they do it. Moreover, executive orders are a way for presidents to take ownership of a policy initiative, which signals to agency political appointees that they will be judged based on their implementation of the initiative. Taken together, these features of executive orders make them an important method for exercising control from the White House. That is why the Trump administration’s expanded use of executive orders in turn has expanded the President’s ability to control the agencies.
Historically, the very publicity of executive orders meant that the process for issuing them was quite resource-intensive—so much so that presidents could issue relatively few of them, usually confined to setting general policy on the most important issues. But the Trump administration’s expanded use of executive orders means the White House can exercise granular control in a new way. Consider, for instance, this executive order on the time it takes the Federal Register to publish regulations submitted to it. Publication delays at the Register would in previous administrations never have resulted in an executive order; that they do now shows just how novel is the second Trump administration’s approach to the issuance of executive orders.
The bottom line for companies is this: the expanded use of executive orders enhances the White House’s influence over agency actions. And this means policy-setters within the White House—ranging from the Chief of Staff’s office to the policy councils to the Office of Management and Budget—play an increasingly important role. Agency staff remain vital players in any regulatory action, to be sure, but companies used to making their case just at the agency level should reassess their strategy. Even on matters of detail that in previous administrations would have remained well below presidential attention, the Trump Administration’s expanded use of executive process means the White House team is relevant and could play a decisive role.