Executive Orders Not New — or Altogether Wise

Executive orders are instruments the president can use to operate without Congress and a resistant bureaucracy. But they are dangerous for that very reason.

By Rob Schwarzwalder Published on February 8, 2017

Presidents like executive orders. Given the voluminous flow of issues confronting any president, the frustrations of dealing with a profoundly politicized Congress, and the natural desire simply to get some things done, the temptation to issue “EOs,” as they are called in Washington-speak, is almost irresistible.

Over his slightly more than 12 years in office, FDR issued a record 3,721 EOs for an average of 307 annually. More recently, Ronald Reagan’s per annum output was 48. George H.W. Bush came in at 42 each year he was in the Oval Office, Bill Clinton at 46, George W. Bush at 36, and Barack Obama at 35.

Now, some of these orders were much more significant than others. President Obama, near the end of his presidency, “invoked his executive power to create national monuments 29 times during his tenure, establishing or expanding protections for more than 553 million acres of federal lands and waters.”

Contrast this with one of Ronald Reagan’s last EOs, one to create “an emergency board to investigate a dispute between the Port Authority Trans-Hudson Corporation and certain of its employees represented by the Brotherhood of Locomotive Engineers.”

So, small or large, EOs are a favorite tool of Chief Executives who, to borrow a phrase of Theodore Roosevelt’s, want to “get action (and) do things.”

EOs: The Tempting Ability to Move Without Congress

This likely is especially true of an international business leader like Donald Trump, whose extraordinary career has been enabled by his talent for cutting the kinds of bureaucratic knots for which the federal government is infamous. Throughout his campaign, he made promises about what he would do on his first day in office. 

Perhaps it’s time for a president who will not simply accept the generally glacial pace of governance. People are sick of congressional ineptitude; shortly before the November election, about 70 percent of the people surveyed said they felt the country is headed in the wrong direction. Two cheers, at least, for productive movement.

Executive orders are instruments the presidential surgeon can use to operate without the sanction of irritating attendants (Congress and a resistant bureaucracy). But they are dangerous for that very reason.

It’s true that the Founders never envisioned an efficient national government. They wanted the constraints of a bicameral legislature, a written charter text that defines and limits the role of the federal governing bodies, strong state governments, an umpire-like Supreme Court, and an Executive branch characterized by a careful balance of authority and accountability. All of these were designed deliberately to encourage thorough deliberation and prevent imprudent haste in action.

Yet they never wanted the government stuck in an impenetrable jungle of regulations, laws, executive orders, departments, bureaus, agencies, and institutes.  They never thought Congress would be a forum for aspersion and insult, a place where vicious overstatement became so continuous that most Americans have become inoculated to its slashes on the body politic.

That’s why in 2014 an exasperated President Obama said, “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.”

Conservatives attacked Mr. Obama for this statement and warned dramatically of executive overreach, although had the then-President used his EOs to do things conservatives liked, their warnings would have been distinctly less grave. As noted above, Republican presidents have, for many decades, used EOs with the precise impulse of our penultimate Chief.   

Executive orders are instruments the presidential surgeon can use to operate without the sanction of irritating attendants (Congress and a resistant bureaucracy). But they are dangerous for that very reason.

On Dangerous Ground

As Eric Posner of the University of Chicago School of Law notes, “The Constitution also gives the president ‘executive power,’ which has always been understood to include the discretionary power to allocate resources among enforcement efforts. The significance of this power has grown over the last century, as Congress has created vast regulatory agencies and given the president control over them.” 

Until Congress becomes a functional, responsible, reasonable body, EOs will remain prevalent.

Mr. Posner is correct, but tacit in his analysis is an acknowledgement that the vastness of the federal enterprise invites a massive expansion of executive power. This suggests the danger of the diktat, of autocracy in the name of efficiency and managerial coherence. To state the obvious, autocracy and representative democracy are quite different.

Additionally, voiding the role of Congress is not only a violation of the spirit of the Constitution but an affront to the people, who elect not just a president but a House and a Senate. Having worked on Capitol Hill for many years, my personal frustration with many Members personally and the way both chambers of Congress operate is acute. I get the impatience of the American people — I feel it, too — and can empathize with the impatience of any president.

But conservative constitutionalists should be troubled by the use of executive orders as common practice. However White House lawyers pretextualize their constitutionality, all EOs derive from a single phrase in Article II, Section I, Clause I of the Constitution: “The executive Power shall be vested in a President of the United States of America.” From this simple statement, one designed to enable a president to execute laws passed by Congress, has arisen a ziggurat of precedent that no one will quickly unbuild.

Before EOs Can Be Diminished, Congress Must Be Reformed

America is a nation riven by a sharp and deepening ideological divide. An allegiance to radical personal autonomy, especially as relates to matters of sexual behavior, combined with a relentlessly expansionist view of the role and scope of government, means that the Left will fight —hard — against most of what Donald Trump wants to do and what the GOP in Congress wants to accomplish. Thus, the lure of executive orders: Find ways to implement existing laws that fits most commensurately with what the current Chief wishes to achieve.

And given the giant of bloat known as Uncle Sam, EOs are a Lorelei to the ears of any president maddened by the inaction, shortsightedness, partisanship, self-interest and strong philosophical divergences of today’s Congress.

Until government is shrunk to fit the contours of the Constitution and until Congress becomes a functional, responsible, reasonable body, one that reflects a common understanding of the Constitution itself, EOs will play a prominent role for as far as the eye can see.

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