Over the past 30 years, there has been a growing concern with the power of the Executive. Not only has the President taken on roles unimaginable to the Founding Fathers, but the growth of the power of executive agencies has also become a serious issue.
Executive agencies can now write their own policies, enforce them, and adjudicate claims that may arise, augmenting the three branches of government into one under the authority of the President – a very dangerous development.
Now, after an almost 8-year hiatus, executive orders and actions along with the growth of the executive have become relevant again to the left-leaning media because President Trump, a Republican, has signed over 20 executive orders thus far.
So, What are Executive Orders?
For those of you who are Constitutional scholars, you may have a hard time finding any provision in the Constitution explicitly granting the President the ability to issue executive orders. Where presidents draw on their power to issue these executive orders is Article II of the Constitution. Specifically, its “vesting clause.”
It gives the president “executive power,” an overly broad term that has to do with the actions taken by a presidential administration on the day-to-day.
“Presidents have often used such authority to bypass the legislative process”
While the Founders believed in the interpretation of the Constitution as is, they did foresee a time in which 1) the government would loosely interpret its language and 2) a time in which liberty would come under attack because of partisanship or the narrow interpretation of our rights.
They couldn’t have been more accurate in both predictions.
While there are times in which the president may have to issue executive actions, presidents have often used such authority to bypass the legislative process and instead make up the rules as they see fit.
During the Washington era, however, presidents generally issued executive orders as a way to keep the public up-to-date, not to directly influence actual policy. If you thought President Obama had issued more executive orders than his predecessors, you may be surprised to find out that he pales in comparison to past presidents like FDR, who issued an astounding 3,522 executive orders (EOs), and President Woodrow Wilson, who signed 1,807.
Executive orders have done some good things – like freeze federal hiring – and some bad things, like the imprisoning and interning of Japanese-Americans during WWII.
If we should look to any example for guidance, George Washington, who issued only eight EOs, and Thomas Jefferson, who signed only four, should be our archetype. Executive restraint speaks volumes about the integrity of the Office of the President whereas the unchecked executive speaks to the diminishment of that Office.
George Washington set some important precedents during his tenure, including the establishment of a Cabinet (not stated in the Constitution) and serving only two terms. While those and more have been adhered to, by and large, his precedent regarding executive action has not.
A Lesson in Governance
Spanning as far back as the earliest days of this country, controversial and unilateral decisions have been no stranger to U.S. domestic and foreign policy. Among some of the more recent include President George W. Bush’s EO that allowed for enhanced surveillance by the NSA, President Obama’s to close Guantanamo Bay, and President Trump’s – which was quickly struck down – that banned travelers from seven Muslim-majority countries.
Whether or not you agree with these policies, they represent a blatant disregard for what the Constitution establishes when it states:
The Congress shall have Power…To make Rules for the Government…
—U.S. Constitution, Article I, Section 8
To be fair, though, there are many areas in which the law is so vague, complicated, or outdated that presidential action may seem warranted. Such areas would include healthcare, immigration, and the tax code. However, even decisions on these concerns are traditionally reserved to the rule-making power of the U.S. Congress.
Checks and Balances
The U.S. Supreme Court has done a good job, generally, of limiting executive power. As recently as NLRB v. Noel Canning and going even farther back than Youngstown Sheet & Tube v. Sawyer, the Supreme Court has placed limits on unilateral authority.
In Youngstown Sheet & Tube v. Sawyer, a Truman-era case, it ruled that the president cannot nationalize steel mills and, further, that the President only has the power to issue executive orders when that authority is coming from an act of Congress or the Constitution itself. In the steel mill case, President Truman went against an act of Congress, the Taft-Hartley Act, which gave the president the authority to delay a strike for 60 days but not to nationalize an industry.
That same litmus test was extended to the Obama Administration when it went against the will of the Constitution in NLRB v. Noel Canning; in this case, then-President Obama issued recess appointments while the Senate was still in session. The Court expounded that this flatly and wholly ignored the advice-and-consent role of the Senate and ruled the Obama Administration’s actions unconstitutional.
Dave Roos notes that a White House aide to President Bill Clinton summed up executive orders as, “Stroke of the pen, law of the land.”
In other words, executive actions have become executive legislation. When President Obama wanted the DREAM Act and Congress didn’t, he enforced the general form of it via executive fiat. When President Obama wanted a higher minimum wage and couldn’t get it, he raised the minimum wage for federal employees and contractors via an EO.
A Self-Perpetuating Consolidation of Authority
I’m using President Obama solely as an example, as many other presidents have created presidential memoranda similar to President Obama’s. Nonetheless, We the People must remain vigilant of tyranny and the consolidation of power into any one of the three parts of our government.
Our founders wanted the power of government decentralized vertically and horizontally, meaning across the federal level and down to the state and the local levels. Any action by any president that fastens power from another branch, regardless of your personal beliefs, should be railed against. After all, we fought a war against a powerful English monarchy for the same reason.
In the meantime, let’s hope for a more spirited and productive Congress in the new year so that executive power isn’t the continuing norm. Until then, a self-perpetuating consolidation of authority is almost unavoidable.