Washington's Executive Order Disorder

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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Why are Republicans making a big stink about executive orders?

Here's the thing. What I'll tell you, and what most observers -- whether they're political scientists or journalists -- will tell you, is that people don't really care about procedure; they care about substance. I'll also refer you to two charts (one from Eric Posner and one from Steve Benen) showing that President Barack Obama doesn't even use executive orders very often. Plus, as Kevin Drum notes, Obama didn't actually promise much in the way of new executive orders in his State of the Union speech; instead, oddly enough, it turns out to be in the interest of both Obama and his critics to pretend that he's more active in this area than he really is planning to be.

So, why the overheated rhetoric from Republicans?

Here's my guess: Precisely because no one actually cares about procedure, getting the rubes all riled up about it is absolutely, positively safe. We've seen this again and again from snake-oil sellers during the Obama years: the entirely fictional flap over "czars;" the complaints about reconciliation and other mythical procedural improprieties during the health-care fight; and now, the commotion over executive orders.

Since no one really cares about them, these "issues" serve perfectly as partisan fact-free zones, devoid of complications that substantive objections might raise. After all, even a lot of partisan Republicans support raising the minimum wage, so arguing against it risks offending them. But no partisan Republicans enter the discussion with a strong commitment (either way) on the proper scope of executive action.

It's not just good for fraudsters; politicians interested in substance might see some advantage in peddling procedural garbage, too. Substantive complaints about the president's program have the disadvantage that they might impose future substantive constraints; no one likes to be a flip-flopper. If the rank-and-file buys what politicians are selling, it actually might be hard to back away from it in the future (which might be necessary, say, to sign on to a compromise). Since no one cares about procedure, flip-flopping on procedural points -- as both parties did on the filibuster over the last decade -- imposes relatively small penalties.

Of course, this tactic does require customers to let themselves get all riled up about something they never cared about before and won't care about again. But "czars" proved that such suckers certainly exist.

I should clarify that many procedural things are in fact terribly important, even if no one actually cares about them. The filibuster is an excellent example. And I wrote a bit about the real constraints on executive action yesterday.

It's also true that the Obama administration (like all administrations) sometimes pushes the line of what it can do. But there's really no reason to believe that Obama has done this more than other presidents, or even as much as them. Nor is there any reason to believe that the hype about executive orders has anything at all to do with any real issues about them.

It's just snake oil. And a lot of Republican politicians will keep pitching it unless the customers start demanding substance.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

(Jonathan Bernstein covers U.S. politics for Bloomberg View. He is co-editor of "The Making of the Presidential Candidates 2012." Follow him on Twitter at @JBPlainblog.)

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Zara Kessler at zkessler@bloomberg.net