Donald Trump signed eight executive orders in his first two weeks in office. Eight years ago, in the same time frame, Barack Obama signed nine. Trump’s more controversial efforts — such as his recently struck down order on immigration — have led about half of voting Americans to believe he is moving too fast, according to a Gallup poll.
Executive orders have disproportionate power in the American system of government and need to be re-examined on a constitutional basis. Mostly, however, presidents need to be more discerning when it comes to the times an executive order is the proper method of policy implementation.
Debate over the proper role of executive orders must necessarily address concerns of separation of powers and original intent. In Federalist 46, James Madison writes, “the accumulation of all power, legislative, executive and judiciary in the same hands … may justly be pronounced the very definition of tyranny.” The Constitution reflects Madison’s view, delegating legislative powers to Congress (Article One, Section One) and executive power to the executive branch (Article Two, Section One). Within this framework, an executive order is a presidential directive that dictates how the government should work, interpret or apply laws already granted by Congress or the Constitution.
This is where it gets murky. Although the common counterarguments in favor of executive orders generally hinge on the fact that executive orders do not create legislation and therefore do not overstep the separation of powers clause of the Constitution, that argument does not accurately reflect how presidential directives currently and historically have been applied. From Franklin D. Roosevelt to Bill Clinton to Donald Trump, executive orders have appeared more as an amalgam of the two branches, intruding upon legislative authority and overstepping executive authority, thereby rendering the actions unconstitutional.
In 2001, the Heritage Foundation released a report entitled “The Use and Abuse of Executive Orders and Other Presidential Directives.” In this report, Todd Gaziano writes that the measure of abuse of executive orders is not merely about the number of orders signed in an administration, but is more about how many “illegal and abusive” orders were signed.
For example, Trump’s Jan. 27 executive order on immigration was taken to the federal court system for violating aspects of the Constitution. The Ninth Circuit Court of Appeals unanimously applied a temporary restraining order to the executive order, concluding the government did not show it was likely to win against the states’ claim that the order violated the rights of green card holders — lawful permanent residents — to return to the United States.
The problem with Trump’s executive order, in the eyes of many, is that it functionally circumvents the constitutional policy-making process, wherein orders were originally intended to circumvent deadlocked legislatures.
Executive orders have been deployed by presidents since the administration of George Washington. However, they seem to have become both more visible and controversial because of their increased usage in response to a more frequently deadlocked legislature, argues professor Allan Lichtman of American University in a 2015 CQ Researcher article. However, if the executive order is a weapon most useful for alleviating partisan deadlock in Congress, why is Trump currently using the order to create policy when both houses are red?
Yet one could even argue that gridlocked legislatures were intentionally written into the framework of the Constitution. The framers did not want government acting unless it had the “clear authority to do so,” argues Roger Pilon, founding director of the The Cato Institute’s Center for Constitutional Studies. In response to increased use of executive orders, some — including Louis Fisher of The Constitution Project in D.C. — believe including the judicial branch in these decisions may help install checks and balances into a presidential power currently lacking essential discipline of that nature.
But this still fails to address the disparity between the modern use of executive orders and their most basic principles. The executive order was designed to give the president the power to interpret a law that has already been created via the constitutionally-dictated legislative process, not to write new laws. The president may try to convince Congress that his policy is worth implementing, but he should not force agencies to adopt his policy by using an executive order to leapfrog the constitutional lawmaking process.
A strong presidency is important for American democracy to thrive. However, the unchecked power of the executive order when deployed incorrectly — which it has been — is a dangerous concept. Further, President Trump’s use of the order thus far, especially the recently implemented immigration order, clearly works around the democratic system of moving law through the House and Senate.
It is time the executive order be deployed more thoughtfully, and with more respect to the existing system for creating laws that is set out by the Constitution.