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The purpose, politics and power of executive orders

BY Tom Cronin and Bob Loevy

Former President Donald Trump issued at least 220 executive orders — including announcing U.S. withdrawal from the Paris climate accord, banning travel to the U.S. from Muslim-majority nations, and approving the building of the Keystone pipeline.

President Joe Biden, in his first six weeks in office, has issued some 50 executive orders – many of them cancelling or revoking orders issued by his predecessor. What are executive orders? Are they legal and constitutional? People probably wonder if these are some White House toy that presidents employ to do end runs around the slow moving or even resistant U.S. Congress.

Presidents since George Washington (he issued eight) have been using them. Though we do not know the exact number, there have probably been about 14,000 to 15,000 of them. Lincoln was the first president to use the term. One of his executive orders may be the most famous —his Emancipation Proclamation which freed the slaves living in the Confederate states.

The U.S. Government did not begin to number executive orders until early in the 20th century. Confusing matters, too, is that executive orders were usually called executive proclamations in the early days. Even today it is somewhat murky as to what precisely is an executive order as opposed to proclamations, presidential directives, and national security memorandums.

Our constitutional framers never anticipated the scope and size of today’s U.S. Government. They assumed Congress would be the preeminent and dominant policymaking branch of the newly proposed national government. Yet presidents, for many reasons, have long made legally binding policy without the direct participation of Congress.

They issue executive orders that direct government workers to take or to refrain from taking particular administrative actions. Executive orders have been the source of occasional congressional-presidential tensions, especially in this hyper-partisan era. Still executive orders issued with a valid claim of statutory or constitutional authority are legally binding.

U.S. courts have occasionally overturned an executive order, as they did with President Trump’s initial Muslim travel ban. In l952, when President Harry Truman tried to have the U.S. Government take over privately owned steel mills during the Korean War, the Supreme Court ruled that action unconstitutional.

Congress can pass a law revoking an executive order yet rarely does so. The failure of Congress to take any action on an executive order is assumed to be acquiescence in the new policy.

The executive order is an implied power, which means it is not specifically mentioned in the U.S. Constitution. It derives from Article Two of the Constitution, which gives the president the power to “take Care that the Laws by faithfully executed” and that “the executive Power be vested in the President.”

Every constitutional democracy has some form of executive order, even though it may be called by different names. A chief executive needs a certain amount of authority to perform the job and to issue administrative clarifications to subordinates.

Whether one approves of a particular executive order often depends on the president in office and the purposes for which the order is being used. Interest groups, on the left or right, want “their” president to act by executive order when they know Congress will be painstakingly slow or opposed to their policy preferences.

During the Great Depression of the 1930s, President Franklin D. Roosevelt famously stopped a run on the nation’s banks by declaring a Bank Holiday with an executive order. Roosevelt issued at least 3,500 executive orders.

Roosevelt’s most controversial executive order was issued in the first months of U.S. involvement in World War II. It confined Americans of Japanese descent in internment camps. Roosevelt acted after Japan attacked the U.S. naval base at Pearl Harbor and invaded U.S. possessions such as the Philippines and Wake Island.

Executive orders are a powerful tool to use against the Senate filibuster. A filibuster occurs when a small group of senators talk endlessly about a bill and thereby prevent a vote on the bill. A two-thirds vote of the Senate – 67 out of 100 senators – used to be required to end a filibuster and get the bill passed. Such a vote was called a “cloture vote.”

From the 1930s to the early 1960s, Southern senators used the Senate filibuster to stop civil rights legislation favoring African-Americans. The Southerners had enough votes to keep pro-civil rights senators from getting the two-thirds vote needed to end the filibuster (cloture), so no major civil rights bills were enacted during that period. Presidents from both political parties turned to the executive order as the best way to get around the filibuster and help African-Americans reach civil rights goals.

Prior to World War II, President Franklin Roosevelt used an executive order to require equal treatment of blacks and whites in employment in U.S. defense factories. In 1948 President Harry Truman racially integrated the U.S. Armed Forces with an executive order.

In 1957 President Dwight D. Eisenhower used an executive order to send U.S. Army troops into Little Rock, Ark., to enforce court-ordered school desegregation at Central High School. President John F. Kennedy, in November 1962, issued an executive order that banned racial discrimination in U.S. funded housing projects.

Be assured that, if any of the above civil rights proposals had been submitted for passage by Congress, all four would have been permanently delayed (defeated) by a Southern filibuster in the Senate.

Still, passing legislation or amending the Constitution is a better way of gaining lasting change. This is why Lincoln worked tirelessly in his last months to get Congress to approve the 13th Amendment to the Constitution abolishing slavery. He understood his Emancipation Proclamation might be revoked or ignored after the Civil War.

Congress, the courts, and investigative watchdogs should regularly ask: Does this executive order exceed authority delegated by Congress? Does this violate any rights protected in the Constitution?

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