Thoughts from the Middle

Executive orders:  Are Presidents Abusing Their Power?

By

Robert J. Fischer

President Barrack Obama was criticized for using executive orders to achieve his political goals.  Some Americans began calling him a dictator.  Donald Trump also made use of executive orders to keep campaign promises.  As President Joe Biden enters the third week of his presidency, he has already signed several executive orders designed to reverse orders that were signed by former President Donald Trump. 

What is an executive order?  How does the Executive order translate into law?  Does the extensive use of the order signal a dangerous move toward a dictatorship?

A Brief Background

To answer these questions it is important to understand where the executive order originated, as well as the intent in creating it.  Executive orders were established in Article II of the Constitution.  This article gives the President, and only the President, power to enforce the law, manage resources, and manage his/her staff.  More recently, the power of the President has been expanded to include Acts of Congress. A president may issue an executive order that applies to a law passed by Congress.   In other words, these orders, like laws or other legislation, must meet Constitutional scrutiny through Court review if and when challenged. 

Both former Presidents Obama and Trump saw executive orders challenged and reviewed by the Supreme Court. For example, President Obama’s order over inadequate enforcement of the Affordable Care Act, in particular the employer mandate clause, was challenged in federal court in 2014.  The case was put on hold until 2016 when President Trump superseded President Obama’s order.  Another example is President Trump’s executive order banning Muslims from seven countries from entering the United States, which was stayed by a federal court in 2017.  In 2018, the Supreme Court abated the lower court decision.

However, historically, most executive orders have dealt with waging war, responding to emergencies, and providing structure to legislation.  These orders are in effect until they are cancelled, revoked, expire, or are found unconstitutional or unlawful.  Also, a new president can modify, cancel or revoke an order by a previous president.

Historically, the first executive order was written by President George Washington in 1789.  He instructed his cabinet to report on the affairs of the United States from their area of responsibility as he prepared his State of the Union address.  Since 1789 all presidents have issued executive orders.  (The one exception was William Henry Harrison, who died within a month of taking office.)

While pundits have been quick to deplore the hundreds of executive orders issued by recent presidents, it is worth noting that no recent president has reached the numbers of executive orders issued by some well-known previous presidents. 

Harry Truman – 907

Theodore Roosevelt – 1,081

Calvin Coolidge – 1,203

Woodrow Wilson – 1,803

Franklin Roosevelt – 3,522

A few examples of executive orders of historical significance include Truman’s order to integrate the armed forces, Franklin Roosevelt’s gold hoarding orders, and the infamous 1942 Executive Order 9066 which led to the internment of Japanese-Americans during World War II.

Problems and Criticisms

Critics have long held that presidents abuse executive orders, using them to bypass Congress. John Hudak, a senior fellow at the Brookings Institute, says, “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.”  In some recent cases, the courts have spoken against executive orders which appeared to bypass Congress.  In 1995, President Bill Clinton signed an executive order which prohibited the federal government to contract with companies which hired strike-breakers.  A federal court overturned the order citing a conflict with the National Labor Relations Act.   As noted earlier, the most recent controversies involved former presidents Obama and Trump.  President Obama was accused of exceeding his powers by changing provisions of the Affordable Care Act, in particular rules on the mandate concerning employers who do not provide health care coverage. 

Discussion

While some presidents have used executive orders to expedite their agenda, or in response to national emergencies, is the expanded use of executive orders a good way to govern?  It is beyond the scope of this article to evaluate the motives or needs behind the large number of executive orders issued by Franklin Roosevelt or the other presidents cited earlier.  However, it is instructive to know that each of these presidents was serving during a time of national emergency.  However, other presidents like Barrack Obama and Donald Trump used the executive order when Congress failed to pass legislation that would have furthered their political/social agenda. 

It is my opinion that the use of executive orders is not a good way to govern in non-emergency times.  Executive orders are NOT a replacement for legislated law.  Our founding fathers specifically put legislative matters in the hands of Congress.  The executive branch was designed to manage.  During non-emergency situations, our democratic system requires debate and compromise—not single-handed acts by the President. 

An executive order does not have the strength of legislative action, since it can be rescinded by Congress or a succeeding president.  The executive order actions taken by President Obama on immigration, health care, and the environment were rescinded under President Trump.  Now President Biden is rescinding President Trump’s orders.  For example, the move away from fossil fuels and to alternative energy sources has been hampered by a single change in administrations.  Such actions create an uncertainty in our national policy that “blows with the current political winds.”   

Conclusion

Is President Biden overusing executive orders?  Perhaps.  However, many of the changes made through executive order by President Trump needed immediate action from a more liberal point of view.  In addition, other problems such as the COVID-19 epidemic, global warming, and economic issues faced by the lower and middle class likely require immediate attention.  If we are indeed “fighting a war,” as President Biden has claims, than it is expedient to use executive orders to quickly move the agenda forward.  However, once the crisis has been averted, it would be better for President Biden, who has sold his experience of working across the aisle, to help shape legislation that is bipartisan.  Legislated initiatives are likely to last much longer than an executive order that can be revoked with the stroke of a pen, and are less likely to create instability and uncertainty.