The Problem with Governing by Presidential Executive Order

 

As Donald Trump leaves the presidency his last task will be to issue a batch of executive orders meant

to cement his legacy.  Among the first tasks Joe Biden will perform on January 20, 2021 after he becomes president will be to issue a batch of executive orders to undo those of his predecessor.  Both Republicans and Democrats will cheer for their side’s executive orders. Is this any way to run a government?  Unfortunately, the answer has become yes, and that is a problem that needs to be fixed.

            It seems like an endless quadannular cycle.  Presidents come and go and with that executive orders change.  For example, when Bill Clinton became president in 1993 he issued an executive order reversing one issued by Ronald Reagan that had banned the use of US foreign aid funds to groups that supported abortion.  In 2001 George Bush reserved that executive order.  In 2009 Barack Obama reversed Bush’s order.  In 2017 Donald Trump reversed Obama’s order.  In 2021, Joe Biden will reverse Trump’s order.  There are scores of other executive orders that have a similar pattern and fate.

            Executive orders have been around since George Washington.  There have been nearly 14,000 executive orders issued since 1789.  Franklin Roosevelt issued the most with 3,522, William Henry Harrison the least with zero (he died within a month of his inauguration).  In recent history,  Bill Clinton, George Bush, and Barack Obama respectively issued 254, 291, and 276 executive orders, each in two terms.  Donald Trump has issued 195 so far in one term, even after declaring as candidate he would not resort to governing by executive order.

            There are two constitutional basis for executive orders.  The first is found within Article II of the Constitution that vests in the president executive power and which authorizes him to  take care that the laws be faithfully executed.  These powers give the president some discretion to make routine administrative and law enforcement decisions.  Executive orders issued under Article II are policy but not law per se, and presidents can issue them at will and overturn them  at will.  These constitute a large percentage of the type of executive orders presidents issue, including ones Trump will pronounce in the next few weeks and which Biden will reverse.

            The other type of executive order premised upon Congress delegating authority to the president via the law.    This delegated power gives presidents and the executive branch the authority to issue rules or regulations—often to fill in the gaps in laws—or act in emergencies.  Executive orders issued pursuant to delegated power carry the force of law and the Administrative Procedures Act generally has rules regarding when and how they can be issued and how they can be repealed.  Executive orders regarding the environment, energy, food or health, banking, or the workplace often fit into these category.

            Obama but more so Trump has used executive orders for this purpose.  Presidents are using executive orders more because of the partisan polarization stalemating governing in Washington, D.C.  Similar problems at the state level, including Minnesota, when it comes to governor’s executive orders, most recently with the pandemic.

The Trump administration has arguably had the worst records ever among  US presidents in court regarding having these executive orders struck down because it failed to follow proper procedure in issuing them.  No surprise here.  Trump and his administration largely were ignorant or indifferent regarding legal protocols and procedure, thinking that being president was like being a CEO on The Apprentice or sitting in the executive suite of  Trump Towers.  The final story of the Trump administration in part will be told about how less effective he was because of his procedural ineptitude with executive orders and governing in general.

            Trump’s coming wave will meet a similar fate.  Biden will overturn many on day one, many of the others will be invalidated in the courts, even by judges he has appointed.  But these checks beg the broader question—is governing by executive order any way to run a government?

            The answer is no.  Presidents have become too powerful and need to have their power clipped.  Congress can begin to do that by thinking about the scope of delegated power they wish to give to the president. Post-Watergate there were some efforts to do that but over time they were undone.  One thing Joe Biden should think about is a longer-term plan to change the law to make it harder for executive orders to replace working with Congress to make law.  Governing by executive order only exacerbates the polarization of American politics and gives Congress a way out of having to make the policy choices they were elected to make.