In a recent op-ed piece entitled “‘Issues’ or America?,” American economist Thomas Sowell denounced presidential executive orders, pointing out that people often become so focused on debating the merits or demerits of policy they forget that the legislative process is being circumvented and our Constitution and freedoms silently eroded. What are executive orders and is Sowell right to criticize them?
The Origin of Executive Orders
Executive orders have been around for centuries, although they have morphed over the years. We would not have recognized early “executive orders,” which are more accurately described as presidential directives and proclamations. The idea of the President of the United States issuing a directive is natural and appropriate, the first one being given by George Washington himself in 1789. The actual term “executive order” was not used until 1862 when Abraham Lincoln used a number of orders to run the early months of the Civil War, and later when he issued the Emancipation Proclamation on January 1, 1863. Lincoln issued only three official executive orders, but later presidents, starting with Theodore Roosevelt and FDR in the early twentieth century, issued hundreds and even thousands. However, from Lyndon B. Johnson onward, the amount of executive orders per president has remained consistent: Reagan signed 381; George H. W. Bush signed 166; Clinton signed 364; George W. Bush signed 291; and President Obama signed 276 (see this list).
In the beginning, executive orders were used for a number of different purposes, most of them legitimate exercises of presidential authority. Most executive orders are used for one of the following reasons: to exercise constitutionally authorized executive power, to interpret and implement statutory laws passed by Congress, or to organize and delegate responsibility within the executive branch. Constitutionally, the president has broad powers as described in Article II to issue directives in the following areas: (1) Commander in Chief of the armed forces (Art. II, § 2, cl. 1); (2) as the Head of State in carrying out foreign policy, including negotiating treaties (Art. II, § 2, cl. 2, and § 3); (3) as Chief Law Enforcement Officer to make sure that the “laws be faithfully executed” (Art. II, § 3); (4) as Head of the Executive Branch in order to appoint officers, delegate authority, and organize administration (Art. II, § 3); and finally, (5) to grant pardons (Art. II, § 2, cl. 1).
The Limits of Executive Orders
With such broad powers, executive orders can be far-reaching and encompass many areas of governance. But is there a limit? Is there anything the president cannot do with executive orders? In fact there is. When our founding fathers wrote and debated the Constitution during the Constitutional Convention of 1787, they purposely set out to create government by the people (known as People’s Law), not by a single individual (known as Ruler’s Law). Thus they invested all law-making power in Congress, which represented the people equally through the Senate, and proportionally through the House of Representatives (a bicarmeral body). Having just won an unlikely war against King George III of England for their independence, the framers of our government were explicitly trying to avoid arbitrary rule by one person that can so easily become abusive and dictatorial. This is why Article I, Section 1 of the Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (italics mine).
The president and executive branch do not have the authority to create new laws, for this would have violated one of the most fundamental purpose of our government: representative rule. The broad powers covered by executive orders exclude the following: (1) creating new legislation apart from Congress; (2) revising current laws without congressional initiative; (3) repealing current laws after they have been signed into law; and (4) creating bureaucracy in connection with the three previous violations. While there is some overlap between legislative and executive powers, the authority to write, alter, and repeal laws lies only with Congress. The only time the president has the authority to tamper with current law is if Congress has delegated authority to him to interpret and implement the law. But this power has already been invested in the executive branch pursuant Art. II, § 3.
The Abuse of Executive Orders
Unfortunately, since FDR presidents have used executive orders as legislative tools to sidestep Congress and accomplish their own policy objectives. This is a clear abuse of executive power and is illegal. The last three presidents have all abused their power in this manner. Clinton often flaunted his ability to create laws through executive order, and he readily publicized his legislative executive orders when Congress failed to achieve his policy goals. At one point the Supreme Court actually struck down one of Clinton’s executive orders and forced him to rewrite it. George W. Bush did not amend such abuses, but continued to use his executive power in near dictatorial ways during emergencies with the National Security and Homeland Security Presidential Directive in 2007, among others. President Obama followed suit, rolling out his “We Can’t Wait” campaign after the 2010 midterm elections saw the Republicans take control of the House of Representatives and Congress become deadlocked. President Obama explicitly states that “we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.” This could accurately be translated to mean, “since Congress won’t pass laws, I will myself.” In addition, his many unilateral changes to the ACA (“Obamacare”)—such as delaying the employer mandate—were unconstitutional executive orders.
When we take a look at recent executive orders, no one can deny that many of them are good policy and were signed by the president with the best intentions. But this is exactly the problem that Sowell was getting at in his opinion piece. When we become entangled in debating the pros and cons of policy set forth in executive orders, we fail to realize that such legislative executive orders—no matter how good they sound or how much they will benefit us—are explicitly an illegal usurpation of power. This is one of many steps in the deconstruction of our Constitution, the loss of freedoms and liberty, and the eventual rise of a tyrant. For those of you opposed to the Trump presidency—not least of all because he has despotic impulses—consider the sheer amount of power that now lays at his disposal because of previous presidential abuses. This should caution us against cheering for abusive executive orders when “our guy” is in the White House. The misuse and perversion of power should trouble us, no matter who is president.
In conclusion, when discussing executive orders we need to avoid a number of things. First, we should not categorically condemn all executive orders as being illegal simply because they are issued by the president, since the vast majority are constitutional and appropriate. Second, we should avoid blaming only Democratic or Republican presidents, because both parties have transgressed in this area and serious reform is needed across the board. Third, most executive orders involve internal affairs within government and have little direct impact on the population at large. With this said, however, we must be aware that the temptation to accumulate power is ever present in the White House, and many presidents abuse their power through legislative executive orders, belittling Congress in the process and stealing our Constitutional rights and freedoms from under our noses. Let us not become ignorant or passive when it comes to holding our government accountable.
Resources on Executive Orders
- Patrick McLaughlin, “Measuring the Content, Not Just the Number, of Executive Orders and Proclamations,” Mercatus Center, October 16, 2014.
- Todd F. Gaziano, “The Use and Abuse of Executive Orders and Other Presidential Directives,” Heritage Foundation, Legal Memorandum: Executive Summary, February 21, 2001.
- John Contrubis, “Executive Orders and Proclamations,” Congressional Research Service Report for Congress, March 9, 1999.
- William J. Olson and Alan Woll, “Executive Orders and National Emergencies: How President Have Come to ‘Run the Country” By Usurping Legislative Power,” Cato Institute, Policy Analysis, October 28, 1999.
This piece first appeared on FaithfulPolitics.org on August 31, 2012. It was updated March 2017.
Ben is a graduate of Denver Seminary, having completed a double MA in New Testament Biblical Studies and Christian Apologetics and Ethics. He will be pursuing a PhD in Politics at the Van Andel Graduate School of Statesmanship at Hillsdale College starting in fall 2019. He loves reading, drinking coffee, and hiking in the Colorado Rockies. His academic interests include biblical languages and exegesis, theology, philosophy, politics, and economics.