Presidents issue Executive Orders to assert their power to make law. While the Constitution gives the lawmaking power to Congress, Congress passes many ambiguous laws that require interpretation. It also delegates many of its powers to the President. Presidents aggressively occupy the void created by Congress enacting ambiguous laws and its delegation of powers. The result is that Presidents exercise as much legislative power as Congress can tolerate, which is considerable.
How does this happen?
Every President, upon being sworn into office, signs a stack of Executive Orders announcing how he will rule the nation. The signing is to establish the new President’s power as he revokes many of his predecessor’s more noteworthy orders.
Executive Orders are directives that the President issues to officials within the executive branch, requiring them to take or cease actions related to policy or management. The President strives to give the impression that the Executive Orders apply to all his subjects, and at times, the world through tariffs and trade.
Placing the current surge in Executive Order usage into historical context is crucial. Presidents from Eisenhower to Obama issued between 11 and 23 Executive Orders in their first hundred days in office, and hundreds more during their term in office. Trump 45 (2017) significantly altered the dynamics of presidential power through the issuance of 33 Executive Orders in his first 100 days. This set a new benchmark for executive action, a record that was later surpassed by Biden, who issued 42 in 2021. Trump 47, issued 142 Executive Orders in his first 100 days.
Executive Orders are used to produce radically different policies based on the same laws.
In Trump’s first term, he revoked 20 of President Obama’s Executive Orders. His actions reversed Deferred Action for Childhood Arrivals (“DACA”) and set out procedures to repeal the Affordable Care Act (ObamaCare). He also issued EOs promoting offshore drilling, expediting energy permitting, withdrawing from the Paris Climate Accord, increasing immigration enforcement, and revoking Obama’s federal contracting orders.
Biden revoked 42 of the Executive Orders issued by Trump in his first term. He halted funding for the border wall, revoked the Muslin travel ban, imposed mask mandates on federal property and airports, rejoined the Paris Climate Agreement, established an all-of-government diversity, equity, and inclusion program (“DEI”), and aggressively fostered green energy policies, to name only a few.
In Trump’s second term in office, he rescinded 78 of Biden’s Executive Orders, including his all DEI and gender discrimination mandates. His Executive Order issuance spree included, to name a few, withdrawing from the World Health Organization, building up the military, fostering more oil and gas production, keeping men out of women’s sports, and the creation of the Department of Government Efficiency. Trump went far beyond prior precedents that limited such orders to the federal government, its contractors, and employees. Trump issued Executive Orders targeting private parties such as law firms and universities.
The radical differences in the policies of the three presidents reflect how the use of Executive Orders turns the policies of the United States upside-down with each new administration. These policy reversals raise two questions: What legal powers do presidents have without congressional authorization to implement radically different policies? And, how can the same laws be relied upon to issue Executive Orders that justify contradictory policies?
The power of an Executive Order.
While history recognizes that presidents have broad power to issue Executive Orders, no provision in the Constitution or any law defines what an Executive Order is. A president’s authority to issue them is derived from the ‘Take Care’ clause of the Constitution.
In the seminal case of Youngstown Sheet and Tube Co., Justice Black set forth the limits of executive power: The President’s power to see that the laws are faithfully executed refutes the idea that he [the President] is to be a lawmaker, thereby establishing the legal limits on executive authority. In a concurring opinion, Justice Jackson explains how to analyze the legality of Executive Orders by placing them into three categories.
In the first category, a president can interpret law and make policy by Executive Order, if he is authorized by statute or the Constitution, i.e., delegated power, provided, however, he does not contravene either.
The second category is when the law passed by Congress is ambiguous. In this instance, the court allows Congress and the president to fight over its meaning.
In the third category, in which Congress has clearly spoken, a president has little authority to issue Executive Orders that change congressional policy.
Determining the validity of a president’s authority to issue an Executive Order requires an analysis of the law or constitutional provision on which it is based. Trump 47 is overwhelming the federal courts with his aggressive use of Executive Orders. According to “Just Security,” an online publication that tracks lawsuits against the Trump administration, there are 380 lawsuits filed against his Executive Orders.
Why the confusion over the scope of Executive Orders?
While the Supreme Court has established clear standards for analyzing Executive power, its standards are meaningless when implementation is based on who has the power. Each step of restricting presidential power requires a powerful response by Congress or the courts. Even when statutes are not ambiguous, the President informs Congress of his different interpretation and forces Congress to fight with him. Such Presidential overreach is usually successful since members of Congress from the same party as the President will do all they can to block any opposition to the President’s Executive Order, notwithstanding that their duty of loyalty must be to the Constitution and the institution of Congress.
Mechanisms to Overturn an Executive Order.
Advocacy Groups. In the usual course of business, advocacy groups will litigate if harmed by the Executive Order. If they can establish that the President acted in an arbitrary manner or contrary to the law, the Executive Order will be invalidated by a court. The successful outside litigation preserves the integrity of the Constitution, which is particularly important for a fearful Congress.
Congress. A Congress that is serious about defending its constitutional prerogatives would be an active participant in this process, since it is its lawmaking authority that is being abused. Congress has many options. It can pass a more precise law, hold oversight on the issue, and issue subpoenas to compel witnesses to testify. An aggressive Executive, however, will resist these congressional demands. More troubling, however, members of Congress from the President’s party will likely defend the President, thus ceding their legislative power to the President. This congressional acceptance of Presidential power allows presidents to implement their Executive Orders as if they established the law of the land.
Congress does have one power that no President can overcome – it has the sole power of the purse. As such, Congress can refuse to fund the policies directed by the Executive Order until cooperation between the branches is achieved. Unfortunately, Congress is not only silent but also so fearful of the President that it is too afraid to act. This silence, fear, and submissiveness to the President are the traits that move Congress closer to irrelevancy.
William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. It received five stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at wlk@ReformTheKakistocracy.com
