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At the Stroke of a Pen

Keeping with the theme of showcasing examples of high-quality arguments, I’d like to pick one today that illustrates multiple attributes of what makes an argument strong and compelling.

A major news story since Joe Biden took over the presidency has been the number of executive orders he signed (28) within his first two weeks in office. Many of these orders reversed rules put into place by his predecessor when Trump took office in 2017 (with many of Trump’s orders cancelling choices made by his predecessor, Barack Obama, some of which were reinstated by Biden).

While many of Biden’s supporters cheered these changes, this New York Times editorial (reproduced in full below) makes a strong case that executive orders – while sometimes necessary – are a flawed way to create or change policy.

What makes this editorial work so well?

To begin with, any argument must start from a logical core. In this example, the editorial writers are creating a case made up of multiple linked arguments that support an overall claim that executive orders are inferior to other means of changing policy, notably legislation. The points they stress include:

  • Executive orders are fragile (based on recent history of presidents overturning each other’s orders every time a different party takes control of the White House).

  • Executive orders are limited (based on the fact that the President’s constitutional authority is limited – which is why Biden can require masks on federal property, but nowhere else, for example).

  • Frequent changes in policy based on executive orders create chaos for those affected (such as immigrants who have seen DACA reforms created, pulled, then reestablished, all within a few years).

  • Executive orders do not have the staying power of legislation which represents agreement by representative bodies to establish rules and policies, arrived at through deliberation and compromise.

By now you should be able to construct informal arguments using evidence provided in the editorial (which you'll find in parentheses in the bulleted list above) to support the conclusions of each bulleted argument. You should also be able to see how those arguments work together to build a strong case urging caution on executive orders. So two dumbbells so far for the New York Times.

While logical strength is required for a powerful argument, it is insufficient to make that argument compelling. For that, you need to have the right mix of logic (logos), emotion (ethos), and connection to an audience (pathos) that you read about in earlier discussions of Aristotle’s three Modes of Persuasion. If we argued simply by algorithm, perhaps a valid and sound argument is all that would be needed to convince people. But on a planet made up of human beings rather than Vulcans or robots, you need to engage people through things other than intellect.

For example, the part of the editorial dealing with DACA immigrants is moving without being manipulative. The point also appeals to the reader’s sense of fair play, rather than making a claim about the correctness or incorrectness of any particular immigration policy. So one more dumbbell for the NYT for including all three modes of persuasion in their arguments and for getting the balance of logos, pathos and ethos right.

Next, the best arguments focus not on the past (forensic arguments, often used to assign blame), or the present (demonstrative arguments, often used to celebrate a person or community), but on the future (deliberative arguments that suggest ways that might make the world better).

While there is plenty of historic information in this editorial (although I suggest you also read this piece for more context based on the history of executive orders), the main thrust of the editorial is that executive orders are a poor substitute for legislation (or, in the editorial’s words “…this is no way to make law”). Mr. Biden’s success, the editorial asserts, should be based on whether he is able - in the future - to do what others have not during our polarized age: get warring political parties to agree on wise policies that will be good for the nation.

Keeping their main point primarily deliberative earns those writers one more dumbbell.

The final element that impacts the power of the editorial is the nature of the publication in which it appeared: the New York Times. I don’t think I’m being partisan by pointing out that the Times was highly critical of many if not most of the Trump policies Biden just overturned, or that the “Paper of Record” did little to hide its disdain for the last president, or its relief that he has been replaced by someone else.

You can decide whether the Times’ decisions over the last four years represent partisanship or principle, but their previous editorial policies make their current criticism of someone enacting policies they likely agree with, but doing so in the wrong way, more poignant (and thus more powerful). A paper giving the thumbs down to government decisions they loathe is a dog-bites-man story. That same paper showing discomfort for how choices they prefer were made is man-bites-dog. So one last dumbbell for asking readers to examine the downside of getting what many of them likely wanted.

If I did my math right, that’s a precious five dumbbells for the New York Times editorial:

And since I touched on the notion of bias, I should acknowledge my own preference for representative democracies making decisions based on democratic decision-making practices involving deliberation and compromise.

Change may come more slowly when it has to go through the sausage factory of the legislative process, but changes emerging from less representative sources (like administrative fiat or judicial ruling) tend to be the ones that continue to haunt and divide the nation for decades after non-representative bodies declared “case closed.”

Original Editorial

Ease Up on the Executive Actions, JoeThe New York Times, January 27, 2021

President Biden is right to not let his agenda be held hostage, but legislating through Congress is a better path.

President Biden is moving aggressively to turn the page on the Trump era.

A week into his presidency, Mr. Biden has issued a raft of executive orders and other actions. Already, he has committed to rejoining the Paris climate change agreement, ended the Muslim travel ban, canceled the permit for the Keystone XL pipeline, rescinded funding for and halted construction on the wall at the southern border, reaffirmed the Deferred Action for Childhood Arrivals program, mandated mask-wearing on federal grounds, moved to end the federal government’s reliance on private prisons, reversed the ban on transgender military service and called for agency assessments aimed at advancing racial equity — just to name a few. The coming days will bring more such action.

These moves are being met with cheers by Democrats and others eager to see the legacy of Donald Trump’s presidency dismantled posthaste. Republicans, meanwhile, are grumbling about presidential overreach and accusing Mr. Biden of betraying his pledge to seek unity.

In other words, things are going the same way they often do in Washington. “There’s a sort of tribalism when it comes to the use of executive orders,” observes John Hudak, a senior fellow in governance studies at the Brookings Institution. “When your party’s in the White House, it’s the greatest thing on earth. When your party’s out, it’s undemocratic. It’s basically Satan’s pen.”

But this is no way to make law. A polarized, narrowly divided Congress may offer Mr. Biden little choice but to employ executive actions or see his entire agenda held hostage. These directives, however, are a flawed substitute for legislation. They are intended to provide guidance to the government and need to work within the discretion granted the executive by existing law or the Constitution. They do not create new law — though executive orders carry the force of law — and they are not meant to serve as an end run around the will of Congress. By design, such actions are more limited in what they can achieve than legislation, and presidents who overreach invite intervention by the courts.

But legal limitations are not the only — or even perhaps the biggest — point of concern. Executive actions are far more ephemeral and easily discarded than legislation, which can set up a whipsaw effect, as each president scrambles to undo the work of his predecessor. Just as Mr. Trump set about reversing as many of President Barack Obama’s directives as possible, Mr. Biden is now working to reverse many of Mr. Trump’s reversals. With executive orders, there is always another presidential election just a few years off, threatening to upend everything.

This creates instability and uncertainty that can carry significant economic as well as human costs. Just consider how the Dreamers, immigrants illegally brought to the United States as minors, have had their lives disrupted in recent years. Mr. Obama established DACA to protect them from deportation. Upon taking office, Mr. Trump moved to end the program, setting off years of legal challenges and throwing these people’s lives into a nightmarish limbo. Mr. Biden now has moved to reaffirm the protections. The fragility of the Dreamers’ status has been laid bare. Presidents have wide latitude, both constitutionally and statutorily, to set immigration policy. But Dreamers deserve better than to be subject to the whims of whoever holds the White House. It is long past time for Congress to establish a clearer, more permanent path for them.

Executive actions can signal priorities — for instance, Mr. Biden’s push to promote racial equity or tackle climate change. Mr. Trump was good at the theatrical part of this, if not so much at providing actual guidance. His directives tended to be vague and sloppy — “bumper stickers rather than pamphlets,” as Mr. Hudak put it.

Undoing some of Mr. Trump’s excesses is necessary, but Mr. Biden’s legacy will depend on his ability to hammer out agreements with Congress. On the campaign trail, he often touted his skill at finding compromise, and his decades as a legislator, as reasons to elect him over Mr. Trump. The country faces significant challenges to recovering from the pandemic, from a global recession, from years of safety nets and institutions and trust being eroded. Now it is time for the new president to show the American people what permanent change for a better nation can look like.


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