Handling the ‘shock and awe’ of a new administration

Sometimes a new presidential administration comes in quietly, and other times it starts with a bang. No matter what side of the aisle you are on, it is safe to say that President Trump's second term is beginning with what might be called “shock and awe.”

By the end of January, only 11 days after his inauguration, the president had released 45 executive orders (EOs), 26 on his first day in office, along with several additional executive actions, a category that includes proclamations, memoranda, and discretionary executive actions. In comparison, President Biden released nine EOs on his first day in office and a total of 25 in the month of January, and in President Trump's first term, he released only one EO on the first day and nine total in January.

Looking back in recent history, President Ronald Reagan issued the most EOs over the course of his two terms, a total of 381, averaging 48 a year. He is followed closely by President Bill Clinton with 364, or 46 per year, and President Richard Nixon with 346 over his five years of presidency, averaging 63 per year. Finally, President Jimmy Carter issued the most per year during his single term at 80, totaling 320 overall. The bottom line is that EOs and other types of executive action have been used extensively by both parties over the years to move their agendas forward. Given this extensive use of executive power, why is it that this January feels so unusual, and, as I discussed in my February I.M. Matters column, even unprecedented?

In considering this question, I found it helpful to back up and review what exactly an EO is, as well as other types of executive actions. In December 1957, the House of Representatives' Committee on Government Operations defined EOs as actions that are “directed to, and govern actions by, Government officials and agencies.” Further, an EO has the force of law, if it aligns with the constitutional powers of the president, and must be published in the Federal Register and the Code of Federal Regulations. EOs can also be used to amend or overturn prior orders. Proclamations are another type of executive action that can be taken by the president to deal with the activities of private individuals. They do not have the force of law and are largely used for ceremonial purposes now. A third type of executive action is executive memoranda, which are very similar to EOs but do not need to be published in the Federal Register, do not need to cite presidential authority, and do not require any sort of a budgetary impact statement from the Office of Management and Budget.

The EOs and memoranda President Trump recently issued are relevant across numerous sectors of the government, including energy, the environment, the economy, education, immigration, federal regulation and government reform, election reform, public health, science and technology, international affairs, and defense, as well as other miscellaneous areas. The sheer volume of these orders and other actions is one aspect of the “shock and awe,” but there also appear to be questions as to the president's constitutional authority to issue some of these orders and whether they have allowed for due process.

Given this, what are the checks and balances associated with EOs? First, there is the potential for judicial review, where the courts get involved to determine if an order is accurately based on constitutional powers or congressional delegation and/or to review if an order is appropriately based on statutory, constitutional, or “reasonableness review” per the due process clause. Second, in some circumstances, Congress can intervene and repeal or modify an order through the traditional legislative route, but given that any laws passed by Congress can be vetoed by the president, this is very rare. Congress can also use its appropriations authority to limit or deny funding necessary for an EO's implementation; however, given that a single party is currently in power in the White House and both houses of Congress, this is also extremely unlikely right now.

This brings us back to the question of the Trump administration's EOs. One that ACP is particularly concerned about is the U.S. withdrawal from the World Health Organization (WHO). This was not a surprise, as President Trump previously attempted to withdraw from the WHO in July 2020. However, financial withdrawal from the WHO requires a year's notice, so President Biden reversed this attempt when he took office. This time, however, it is much more likely to go fully into effect.

The WHO plays many critical roles, including detecting, monitoring, and responding to health threats across the globe; gathering and evaluating data on global health status; setting standards and guidelines for how to deal with health threats; providing goods, like vaccines, to improve health; assisting in humanitarian responses; and providing technical assistance.

Financially, the U.S. is the largest funder of WHO efforts, so our withdrawal will have a significant impact on its operations. But beyond finances, our withdrawal will have an impact on our reputation as a country that can be depended on to provide aid during health crises.

Additionally, if a disease arises somewhere in the world and the U.S. is not a part of the WHO, we will not be informed in a timely manner or have the data necessary to plan a response. While the WHO and many others were not perfect in their response to the COVID-19 pandemic—we all can agree that reform is needed, as the WHO has been criticized for bowing to political pressures—this withdrawal is a huge risk for the health of all U.S. and global citizens. Therefore, ACP joined with other primary care societies to put out a statement calling on Congress to act and reject this EO.

ACP also put out a statement on Jan. 23 reaffirming our organizational commitment to equity. While the statement did not call out any specific EOs directly, it was in response to our concerns about several. This includes the EO that mandated the termination of all diversity, equity, and inclusion (DEI) and related initiatives implemented by the federal government and another related to the definition of gender (as well as EOs released later regarding gender-affirming care). Our statement notes that ACP has policy that “opposes discrimination in any form, particularly in the medical setting, given the clearly negative impacts on patient health and well-being. The disparities experienced by individuals in our society related to their race, veteran status, ethnicity, sexual orientation and/or gender identity harm the health of our patients.”

There are numerous other EOs and executive actions that ACP is monitoring, including those related to immigration, federal regulation, and government reform, and we will likely be responding in various ways as these are implemented. Public or press statements, either in a formal manner or via social media, are only one mechanism of response. Other options include but are certainly not limited to submitting comments on the regulatory guidance that will be necessary to implement these orders, providing practical guidance to ACP members and opportunities for our members to engage in grassroots advocacy, and engaging in amicus briefs, as many of these orders are or will be challenged in court.

“Shock and awe,” a military approach first described by Harlan K. Ullman and James P. Wade in 1996, can be very successful in implementing an agenda, as it can “seize control of the environment and paralyze or so overload an adversary's perceptions and understanding of events.” In this case, I do not like to equate any one party or the American people with the “adversary,” but the sheer volume of the EOs that have been released and the controversial nature of many of them certainly have created confusion. Therefore, it is critical that ACP be very strategic and thoughtful in our responses to these orders and other executive actions.

Members can also engage by following ACP on social media (X, Facebook, Instagram, Threads, and LinkedIn ), ensuring that they receive the ACP Advocate newsletter for regular updates on our activities (if you opted out of receiving this publication at some point, you can opt back in via your communications preferences in MyACP), and signing up to be a member of our Advocates for Internal Medicine network to receive opportunities to send grassroots messages to the administration and Congress. We are much more powerful when we work together to better the lives of physicians and their patients, particularly in times of great, even unprecedented, change.