Have Executive Orders Expanded the Power of the Presidency Too Much?
Katherine Ashley Chen
January 3, 2022
(Originally written in October 2021)
Executive orders are written and signed instructions that a President uses to fulfill his agenda and work his will through the government. Although they are not considered formal legislation, they have the force of the law, and must be implemented by the bureaucracy. However, orders do not require Congressional approval and cannot simply be rejected or overturned by Congress. Originally intended as a way for the President to issue instructions to employees of the executive branch, the evolution of executive order usage over the years has excessively expanded presidential power to the extent that it begins to infringe upon Congress’s legislative powers in an unconstitutional manner, refashioning the executive branch into a legislative one. Excessive expansion of presidential power is dangerous as it could lead to future domination of the president, who already holds a unique position as a unitary executive.
To start, presidential use of executive orders has grown tremendously since the beginning of the American government. As seen in the graph, the first five presidents all issued zero or one executive orders each year they held office. On the other hand, around the turn of the 19th Century, the number of issued executive orders increased dramatically. From 1913-1945, Presidents issued 200-300 executive orders a year: Wilson issued 225/year; Harding issued 217/year; Coolidge issued 215/year; Hoover issued 242/year, and Roosevelt issued a whopping 307 orders per year. The numbers have since declined, with Obama issuing an average of 35 orders/year and Trump issuing 55 orders/year. Still, modern numbers of issued executive orders are far higher than during earlier governments, and demonstrate the dramatic increase in executive power past the framers’ intentions of three separate branches of government.
(Corresponding figure includes projected number of executive orders from Biden, 94)
Moreover, the number of significant executive orders has drastically grown in recent years, illustrating the presidential shift from policy-implementation to policy making. Executive orders largely originated from administrative processes, like the need for a method to provide instructions to federal employees on policy implementation (something well within the President’s constitutional powers), but have evolved into a routine that presidents abuse in order to push through more controversial policymaking unlikely to bypass Congress. In fact, analysis from UChicago political scientist William Howell shows that recent presidents have issued almost four times as many “significant” executive orders as presidents in the first half of the 1900s. For example, many of Trump’s executive orders fall into this category of policymaking, especially his orders on topics like environment and immigration.
The rise in number and impact of executive orders has led to the executive branch consistently overstepping its authority and infringing on Congress’s Constitutional legislative authority. Article I of the Constitution begins by stating “All legislative Powers herein granted shall be vested in a Congress of the United States,” and continues that Congress “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States.” It gives no legislative power to the executive branch, which is merely given the power to implement and enforce laws by Congress in the manner that Congress has prescribed.
The 1952 Supreme Court case Youngstown v Sawyer enforced this distinction, ruling that President Truman overstretched his executive powers by issuing an executive order to seize steel mills. During arguments, Youngstown asserted that the president’s order amounted to lawmaking, a function belonging to Congress. From the opposing side, Sawyer argued that the order was within the President’s aggregate constitutional powers as the Commander in Chief and Chief Executive, since it was issued under the explanation of “national defense”. In the Court’s majority opinion, Justice Black wrote that the “President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself”, describing the president’s actions as something that “does not direct that a congressional policy be executed in a manner prescribed by Congress — it directs that a presidential policy be executed in a manner prescribed by the President.”
Besides this, Presidents have far too much freedom in deciding whether to keep past executive orders. Although Congress can pass legislation that makes implementation of existing executive orders more difficult, it cannot directly overturn an executive order—only the sitting President can reject past orders. This not only gives the President far too much power in deciding legislation that should technically belong to the legislative branch, but also makes the policy-implementation aspect of the Presidency extremely inefficient, as future presidents can simply retract past policy. During his 2016 Presidential campaign, Donald Trump told a crowd that “one good thing about an executive order is that the new president [can] come and with just a signature, they’re all gone.” The ability for a president to completely reverse past policy without any significant oversight illustrates the disproportionate power executive orders give the president.
On the other hand, some argue that executive orders are necessary for a strong executive branch to respond efficiently to current events, as lawmaking is a lengthy process, especially in the polarization of modern politics. This argument hinges on the premise that the US government was implemented to be efficient, which is not necessarily true. The framers intended for the government to represent the interests of the people, and structured the three branches to hold each other accountable. They intended for the executive branch to react responsively to events under its Constitutional power, and Congress in a manner that would favor lawmaking deliberation over speed. Even Alexander Hamilton, who argued for a strong unitary executive, admitted in Federalist 70 that in the legislative process, “promptitude of decision is oftener an evil than a benefit.” Although executive orders can increase the efficiency of the executive branch, they become harmful when they transfer legislative power to the executive, as this redistributes the shared power in the three branches and hastens the legislative process, which was specifically designed for deliberation. The modern use of executive orders often adopt a policy-making process and are often abused by presidents who would like to gain more political support.
Originally intended as a means of communication between the President and employees within the executive branch, the executive order has morphed into a strategy that presidents use to disregard compromise with Congress. In taking away some of Congress’s exclusive lawmaking power, executive orders have increased presidential authority in a dangerous and unconstitutional manner. If executive orders remain unchecked, presidential power could expand in a way reminiscent of the framer’s worst fears—monarchy.
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Image 1 & 2 by FiveThirtyEight