President-elect Joe Biden has promised to sign a flurry of Executive Orders on the first day of his administration. They will mostly undo the many Executive Orders issued by President Trump. Just as Trump used the Executive Order power to undo those of President Obama.
The power of a United States President to issue an Executive Order is enshrined in the Constitution. In fact, the first one was issued by our first President, George Washington. It was addressed to all the federal department heads – and ordered them to report all relevant matters to him.
That seems fairly mild by modern standards – and it was. For many years, such presidential requests and demands were mostly about executive management – memos to those working for the President. They did not cover broad matters of policy. One that did, however, was what we refer to as the Emancipation Proclamation issued by President Lincoln. It was essentially an Executive Order – and a rare one in those times.
In 1907, Executive Orders became more formalized.
The State Department began to catalogue and number them retroactively to 1862.
The use of Executive Orders to impose policy kicked off in the early part of the 20th Century with Presidents Teddy Roosevelt, Woodrow Wilson, Calvin Coolidge and Franklin Roosevelt each issuing more than 1000 Executive Orders – with FDR the granddaddy with 3,522. After Roosevelt, there was a gradual decline to an average around 200 to 300 per President today.
Even as they declined in numbers, the modern Executive Orders have increased in scope. They have essentially usurped the Congress’ constitutional role in making laws. Increasingly, the Supreme Court has had to step in and declare a number of them to be an abuse of Presidential power.
In addition to the potential for abusing presidential powers, the use of Executive Orders to make law is that they are not durable. They do not resolve an issue by creating a precedent, but merely cause dramatic swings in public policy as a new President undoes the orders of his predecessor.
The fate of the Dreamers is one good example.
After saying that he does not have the power to issue and order regarding the fate of those brought into America illegally as children, President Obama issued a dubious Executive Order protecting the Dreamers from deportation for a few years – literally kicking the problem into the administration of his successor. The issue is currently in the Courts with no resolution in sight.
Trump refused to issue another Executive Order when the Obama Order ran its course. He believed that Obama’s Order was unconstitutional – and that only Congress could rectify the situation. It is now likely that President Biden will issue an Executive Order to restore the Obama Order. As a result, the DACA folks have been in political Limbo for the foreseeable future unless Congress acts.
There seems to be only two potential solutions to the increasing use of Executive Orders to impose policy goals of a broad nature – essentially to create laws by presidential edict.
The first would be for the federal courts to define the legitimate use of Executive Orders more narrowly. The second is for Congress to re-establish its authority as the nation’s law-making body.
Unfortunately, Congress has weakened the balance of power between the three branches by increasingly abrogating its responsibility – instead, deferring to the President and the federal courts to make law.
This is an issue that should elicit bipartisan congressional action since the historic record shows that the abuse of the Executive Order power by various Presidents is bipartisan.
So, there ‘tis.