This article was adapted from “Constitution Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About.” For more information about the book, visit ConstitutionOwnersManual.com.
In 2014, President Barack Obama raised the ire of Republicans when he circumvented Congress and effectively legislated from the Oval Office utilizing executive orders.
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama quipped at the time.
Fast forward six years — that pen and phone belong to President Donald Trump, and he’s following right along in Obama’s footsteps.
At some point, another Democrat will inherit the pen and the phone, and the legacy will undoubtedly continue. Each executive order sets a precedent and effectively expands the power of the next person in office.
Presidents have been issuing EOs since the George Washington administration. So what’s the deal with EOs. Are the legitimate exercises of executive authority? Or are the usurpation of power?
People seem to adopt one of two extremes. On the one hand, many argue the president can legitimately issue executive orders with virtually no limitation. The left aggressively advanced this idea during the Obama years. In many cases, the president did indeed utilized EOs to formulate policy, shape rules and essentially legislate from the Oval Office. This clearly went beyond the scope of legitimate executive authority.
On the other side of the debate, some claim the president cannot issue executive orders for any purpose whatsoever.
Constitutionally, the truth falls somewhere in the middle.
The president has the authority to issue EOs relating to the operation of the executive branch, and to direct and manage its personnel. For example, Pres. Trump signed an order during his first full day in the White House instituting “a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch.” The president remains perfectly within his authority to direct staffing levels in executive branch agencies.
On the other hand, the president cannot constitutionally issue orders that implement rules, regulations and edicts applying to the people, orders that bypass the legislative processes, or orders that subvert legislation that was passed by Congress and signed into law. This crosses over into legislative authority. As just one example, EOs establishing environmental rules fall outside of presidential executive authority.
Historian and lawyer Kevin Gutzman summed it up succinctly.
“Article II, Section 1 of the Constitution says the executive power will be vested in a president of the United States. Other members of the Executive Branch are his subordinates. He can legitimately order them to carry out his legal policies. What he can’t legitimately do is order them to carry out illegal policies, as when Obama ordered them to ignore the calendar established by the PPACA and when he used one to rewrite the immigration laws.”
Modern presidents exercise powers far beyond those delegated to them in the Constitution and constantly usurp legislative authority. Much of the blame lies with Congress. It often delegates legislative authority to the president by writing vague, open-ended laws that expand executive authority into the legislative realm. Congress’s delegation of war powers to the executive branch provides one of the best examples.
In the American system, Congress should serve as the most powerful branch, as it most directly represents the people. Instead, America has evolved into a system very much like the one the American revolutionaries sought to destroy.
