Embedded deeply in the American Constitution is a clear and necessary separation of powers. According to The Federalist Papers, the legislature was to be the author, composer, and writer of law while the executive was to be the sword, the enforcer, the commander of law. These branches were to be separate, their powers distinct and unique. Today, the inappropriate use of executive power threatens that separation.
Executive orders give presidents the authority to create policy outside of the usual law-making process. Executive orders have the force of law, and they remain the law of the land indefinitely unless they are either revoked by the executive or overturned by judicial review. While these orders are limited because they can only pertain to operations within the executive branch, they allow the president to profoundly affect policy.
Even in political theorist John Locke’s ideal version of government, the executive held a strong “prerogative” power that enabled him to make the upfront decisions for the betterment of the nation even if it meant breaking existing laws. Overall, despite being protected by Article II of the Constitution, the executive order contradicts the separation of powers.
For this reason, early presidents were less inclined to use executive orders, respecting the line between enforcer and legislator. For example, Presidents Adams, Madison, and Monroe only made one executive order each. In the early years of U.S. history, the presidents were content with the title of enforcer. They did not stray from their role, from their swords.
Fifty years later, that began to change. In times of war or national strife, the prerogative power shines. For example, President Abraham Lincoln suspended habeas corpus during the Civil War to silence Northern dissidents via an executive order. He went around the regular legal process to make a controversial decision that infringed upon civil liberties but may have been necessary to preserve the Union. Henceforth, the precedent was set for any future presidents to use executive orders more freely.
However, executive orders today function quite differently than they did before 1861.
During his time as President, Donald Trump introduced a Muslim travel ban and a ban on transgender people in the military and nullified Obama-era policies that ensured companies stuck to particular environmental standards. He made all of these changes through executive orders.
When President Biden took office, he spent his first few weeks reversing all of these Trump-era policies using executive orders.
Executive orders are powerful, but only for the presidential term in which they are issued. They are not law and they are guaranteed no permanence during presidential transitions. Yes, Biden may have signed on to an international climate agreement, but there is no guarantee the U.S. will honor that commitment once Biden is no longer in office. In four years, the next president could redirect the nation towards fossil fuels and fracking again.
While the use of executive orders may be justified by both precedent and the Constitution, we cannot rely on executive action to make substantial changes. The president cannot act as a real legislator because, as evidenced by the impermanence of Trump’s orders, executive orders do not last. The role of the president is to enforce, and they should do so as instructed by the Constitution. By ignoring the stipulations of the Constitution, lawmakers allow for the decay of our chief lawmaking standard.
The Constitution safeguards democracy. Our elected representatives must work to preserve it.
But the onus of minimizing presidential power is not only on one person. Yes, the role of the president must change, but so must that of Congress. When the president’s power is reigned in, the legislature must step in and do as the Constitution prescribes: write the laws.
America cannot afford to have temporary, overused executive power rule the geopolitical climate or the livelihood of citizens. The legislature must step in and provide the nation with permanence, structure, and confidence. The current circumstances do not provide the people with the best nation or the best government. The government must adapt, reconfigure, and revert to the original intent presented in the Constitution to protect and preserve the general will and welfare of the people.
Categories: Domestic Affairs