Executive Orders

After every presidential election where control of the White House changes from one party to the other, one of the first things the new president does is issue a slew of “executive orders” overturning a bunch of orders the previous administration had written. So what is up with this? Is this legal? Where did this come from?

Executive orders have long been a tool of the U.S. President, designed to ensure the faithful execution of laws and manage the operations of the federal government. However, over time, their use has expanded, and now we have a full-blown crisis of their use. Their numbers have not increased, but their subject matter has veered from their intended purpose.

Constitutional Basis

Executive orders are not explicitly mentioned in the U.S. Constitution, but their authority is derived from several provisions:

1. Article II, Section 1: Vests executive power in the President.

2. Article II, Section 3: Requires the President to "take Care that the Laws be faithfully executed."

These sections provide the President with broad executive powers, allowing for the issuance of executive orders to ensure laws are executed and to manage the federal government's operations. Executive orders are to be issued to members of the Executive Branch, of which POTUS is the head. These orders are intended to direct his employees in the execution of their duties. With this knowledge, it’s obvious that executive orders do not apply to ordinary U.S. citizens. They do not have the force of law. Laws are passed by Congress, not the president acting on his own. The president cannot outlaw electric cars or abortions by signing an executive order.

Early Use and Intent

The earliest use of executive orders dates back to George Washington. His executive actions, including the Proclamation of Neutrality in 1793, set early precedents for their use. The primary intent was to:

1. Implement and enforce laws: Ensure the effective execution of congressional statutes.

2. Direct federal operations: Manage the organization and functions of executive agencies.

3. Respond to emergencies: Act swiftly in times of crisis without awaiting legislative action.

These orders were intended to provide administrative efficiency and were not designed to replace the legislative process.

Increasing Use as a Legislative Tool

Over time, the use of executive orders has expanded significantly. Modern Presidents have increasingly turned to executive orders to achieve policy objectives, especially when facing a divided or opposition-controlled Congress. This shift has led to debates about whether executive orders are being used to circumvent the legislative process. Notable examples include:

1. Franklin D. Roosevelt: Issued an unprecedented number of executive orders during the Great Depression and World War II, reshaping the role of the federal government. One egregious use was EO 9066 which led to the forced relocation and internment of 120,000 Americans of Japanese descent. FDR did that with the stroke of a pen. Wars and other “emergencies” are often abused by leaders to expand their power. This is just one example.

2. Harry S. Truman: Used an executive order to desegregate the armed forces in 1948. As Commander in Chief of the military, he likely had the authority to do this.

3. Lyndon B. Johnson: Issued orders to promote civil rights and affirmative action. While admirable, LBJ had no authority to promote civil rights outside of the Executive Branch of the U.S. government – meaning he could institute hiring quotas in agencies like the Department of Transportation, the CIA, and the FBI, but he had no authority to force businesses or schools to comply in a similar fashion.

4. Barack Obama and Donald Trump: Used executive orders extensively to advance policy goals on immigration, healthcare, and environmental regulations.

Controversy and Criticism

The increasing reliance on executive orders has sparked significant controversy and criticism. Critics argue that this trend undermines the separation of powers by allowing the executive branch to unilaterally create policies that should be deliberated and enacted by Congress. This misuse can lead to several issues:

1. Lack of Democratic Deliberation: Bypasses the legislative process, which involves debate, compromise, and representation of diverse viewpoints. When presidents can unilaterally dictate which and how laws are applied and interpreted, they start to resemble dictators.

2. Temporary Solutions: Executive orders can be easily reversed by subsequent Presidents, leading to policy instability which diminishes the U.S. in the eyes of the world

3. Potential Overreach: Raises concerns about the executive branch overstepping its constitutional authority.

Legal Boundaries and Checks

The judicial branch is supposed to play a crucial role in checking the misuse of executive orders. Courts can review and invalidate orders that exceed presidential authority or violate the Constitution. Notable cases include:

1. Youngstown Sheet & Tube Co. v. Sawyer (1952): The Supreme Court struck down Truman's executive order to seize steel mills during the Korean War, emphasizing the limits of presidential power. Again, Truman can only direct the members of the executive branch with executive orders. Nationalizing industry is something dictators (Socialists, communists, and fascists) do.

2. Texas v. United States (2016): A federal court blocked Obama's executive order on immigration, highlighting the judicial check on executive actions. Specifically, the court found the president could not unilaterally change immigration policy and create new procedures (DACA & others). Again, the president’s job is to enforce EXISTING laws passed by Congress, not create new ones.

3. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984): Initially decided in 1984, this case established the legal doctrine known as Chevron deference, which guides how courts review federal agencies' interpretations of statutes they administer. Agencies had broad latitude to “interpret” laws and their meanings. The EPA used this power to confiscate property to protect endangered owls and such. The ATF also “re-interpreted” the second amendment. The list goes on. Fortunately, SCOTUS recently revisited this case and severely limited the executive agencies’ interpretive powers.

Unfortunately, the courts do not always hold presidential power to account when they agree with the policy the executive order promotes. Additionally, while Congress can pass legislation to counteract or limit the impact of executive orders, it often does not if the executive order is something the majority agrees with and allows them to bypass complicated legislative procedures (like filibusters). They will often look the other way while the president usurps their power.

Conclusion

While executive orders are a vital tool for the President to ensure the faithful execution of laws and manage the executive branch of the federal government, their increasing use as a substitute for legislation raises important questions about democratic governance and the separation of powers. Balancing the need for executive efficiency with the principles of legislative deliberation and constitutional limits is essential to maintain the integrity of the U.S. political system.

Fortunately, for those of us living like pirates, we do not need to be too concerned with the consistent executive overreach of the president of the United States. However, it’s always a good idea to stay at least loosely informed about what the most power person (man or woman) in the world is doing.