Use and Abuse of Executive Orders

[NWRatCon]

On another thread, we got into a discussion about the abuse of Executive Orders (and Executive Actions). I thought it was worthy of the thread of its own.

The Constitution sets forth the three branches of government: Legislative, Executive, and Judicial. The "separation of powers" doctrine attempts to keep them in their lanes, and they form the "checks and balances" that (supposedly) keep the government in line. An Executive Order, like the bureaucracies it is supposed to govern, blurs that distinction between branches, and some would argue, obliterates the line.

Let's start with the theory behind Executive Orders: "An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government." What Is an Executive Order? (ABA) Seems simply enough, and seems to align with the purpose of the Executive - to execute the laws of the United States. "Every American president has issued at least one, [With the exception of William Henry Harrison] ... since George Washington took office in 1789", so it is not a new development.

But the use, and scope, of Executive Orders has expanded exponentially since the first ones issued by George Washington. That is the subject of this thread. The Wikipedia entry, Executive order, provides a succinct history of EO development and a handy chart listing how many each President has issued, ranging from 1 (not counting Harrison) to 3721 (by Roosevelt, over four terms). They only started being numbered in 1907, but retroactively to Lincoln's presidency. At present there are over 14,000 of them

Most of the earliest Executive Orders were pretty clearly merely instructions to the Executive Branch officers/agencies. Over time, however, their scope and purposes have expanded with the bureaucracy and political events. Lincoln's most famous EO was "The Emancipation Proclamation", which was a pretty significant advancement of EO as policy. (It was also Lincoln who apparently coined the term, "Executive Order".)

So, let's start a discussion. What are the legitimate uses of Executive Orders? Are they Constitutionally sound? What constitutes an "abuse" of an Executive Order?

 

[ttwtt78640]

On another thread, we got into a discussion about the abuse of Executive Orders (and Executive Actions). I thought it was worthy of the thread of its own.

The Constitution sets forth the three branches of government: Legislative, Executive, and Judicial. The "separation of powers" doctrine attempts to keep them in their lanes, and they form the "checks and balances" that (supposedly) keep the government in line. An Executive Order, like the bureaucracies it is supposed to govern, blurs that distinction between branches, and some would argue, obliterates the line.

Let's start with the theory behind Executive Orders: "An executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government." What Is an Executive Order? (ABA) Seems simply enough, and seems to align with the purpose of the Executive - to execute the laws of the United States. "Every American president has issued at least one, [With the exception of William Henry Harrison] ... since George Washington took office in 1789", so it is not a new development.

But the use, and scope, of Executive Orders has expanded exponentially since the first ones issued by George Washington. That is the subject of this thread. The Wikipedia entry, Executive order, provides a succinct history of EO development and a handy chart listing how many each President has issued, ranging from 1 (not counting Harrison) to 3721 (by Roosevelt, over four terms). They only started being numbered in 1907, but retroactively to Lincoln's presidency. At present there are over 14,000 of them

Most of the earliest Executive Orders were pretty clearly merely instructions to the Executive Branch officers/agencies. Over time, however, their scope and purposes have expanded with the bureaucracy and political events. Lincoln's most famous EO was "The Emancipation Proclamation", which was a pretty significant advancement of EO as policy. (It was also Lincoln who apparently coined the term, "Executive Order".)

So, let's start a discussion. What are the legitimate uses of Executive Orders?

To provide guidance as to how an existing law or other executive power should be enforced or exercised.

Are they Constitutionally sound?

Within the above context, yes.

What constitutes an "abuse" of an Executive Order?

Creating a new law or altering/deleting portions of an existing law. The definitions of altering/deleting are the hardest to pin down. Obviously, if congress appropriates $1K/year to enforce a given law then the executive has a very good excuse for not adequately enforcing it, but that should not require an EO/EA to accomplish.

A common reason (excuse?) for EO/EA altering/deleting enforcement of laws (or portions of them) is the “lack of resources” to do so, while asserting that such executive action was simply implementing a required (necessary?) change of enforcement priorities.

 

[OrphanSlug]

For years, decades even, and in some cases going back to George Washington, the concept of Executive Orders has danced around that fine line of issuing mandatory requirements for the executive branch to follow and every so often crossing into the swim lane of pseudo-legislative effort in spite of Congressional action (or inaction.)

This is not new territory, and it is rather futile playing the partisan game of "well that side abuses this more than mine."

I mean, have a look at some of this shit... you cannot tell me all of them, D and R, are really on the up and up.

Executive Orders | The American Presidency Project

www.presidency.ucsb.edu

Joe Biden's executive orders and actions

Ballotpedia: The Encyclopedia of American Politics

ballotpedia.org

List of United States federal executive orders - Wikipedia

en.wikipedia.org

 

[NWRatCon]

To provide guidance as to how an existing law or other executive power should be enforced or exercised.



Within the above context, yes.



Creating a new law or altering/deleting portions of an existing law. The definitions of altering/deleting are the hardest to pin down. Obviously, if congress appropriates $1K/year to enforce a given law then the executive has a very good excuse for not adequately enforcing it, but that should not require an EO/EA to accomplish.

A common reason (excuse?) for EO/EA altering/deleting enforcement of laws (or portions of them) is the “lack of resources” to do so, while asserting that such executive action was simply implementing a required (necessary?) change of enforcement priorities.

You may find, my friend, that our views on this are similar. I'm going to hold further comment on that until other posters join the discussion.

 

[NWRatCon]

For years, decades even, and in some cases going back to George Washington, the concept of Executive Orders has danced around that fine line of issuing mandatory requirements for the executive branch to follow and every so often crossing into the swim lane of pseudo-legislative effort in spite of Congressional action (or inaction.)

This is not new territory, and it is rather futile playing the partisan game of "well that side abuses this more than mine."

I mean, have a look at some of this shit... you cannot tell me all of them, D and R, are really on the up and up.

Executive Orders | The American Presidency Project

www.presidency.ucsb.edu

Joe Biden's executive orders and actions

Ballotpedia: The Encyclopedia of American Politics

ballotpedia.org

List of United States federal executive orders - Wikipedia

en.wikipedia.org

The references are greatly appreciated.

I also appreciate this: "the concept of Executive Orders has danced around that fine line of issuing mandatory requirements for the executive branch to follow and every so often crossing into the swim lane of pseudo-legislative effort in spite of Congressional action (or inaction.)" That is central to this discussion, I think: Why EOs have expanded so much.

 

[ttwtt78640]

The references are greatly appreciated.

I also appreciate this: "the concept of Executive Orders has danced around that fine line of issuing mandatory requirements for the executive branch to follow and every so often crossing into the swim lane of pseudo-legislative effort in spite of Congressional action (or inaction.)" That is central to this discussion, I think: Why EOs have expanded so much.

Because getting both a House majority and a Senate super-majority to pass legislation is much harder to do. It allows ‘campaign promises’ to serve as ‘public mandates’ to allow the executive to do what they can’t get the legislature to do.

It’s also because the courts have been reluctant to stop such (obviously unconstitutional?) nonsense, but that would likely require another thread to address.

 

[OrphanSlug]

The references are greatly appreciated.

I also appreciate this: "the concept of Executive Orders has danced around that fine line of issuing mandatory requirements for the executive branch to follow and every so often crossing into the swim lane of pseudo-legislative effort in spite of Congressional action (or inaction.)" That is central to this discussion, I think: Why EOs have expanded so much.

They have arguably expanded because they can, it is almost like unchecked power tends to see people push that envelope.

It is my understanding that in the 14088 (or something) Executive Orders signed going all the way back, less than 10 have been overturned by the Supreme Court for some reason (5 for FDR, and a few others here and there.) No matter if we are talking about actual Cases challenging an Executive Order in front of the Supreme Court, or additional action by Congress because of an Executive Order there is a real low batting average on invalidating, one way or another, these things.

I would argue that the number of EO's by President is a bit misleading, the real issue is how many arguably crossed that line into the area of what should be handled by legislative effort.

That answer may be all over the place depending on which President and EO is in question, and the nature of the argument from the other political party in opposition.

Clear as mud is an understatement with this subject.

 

[Binary_Digit]

The way they're often used isn't my favorite thing, but at least there's a bright side: If a President rules by EO then the next one can just come along and undo it all.

 

[ttwtt78640]

The way they're often used isn't my favorite thing, but at least there's a bright side: If a President rules by EO then the next one can just come along and undo it all.

Not so - see the continuation of ‘dreamers’ or DACA.

Alert: Supreme Court Overturns Trump Administration’s Termination of DACA

www.nilc.org

 

[Binary_Digit]

Not so - see the continuation of ‘dreamers’ or DACA.

Alert: Supreme Court Overturns Trump Administration’s Termination of DACA

www.nilc.org

That ruling was based on how the EO was terminated, not whether. The President can't violate other laws in the process.