by Carl P. Leubsdorf
Like other recent presidential candidates, Donald Trump was highly critical during his initial campaign of the increasing presidential use of executive orders, in this case by President Barack Obama.
“Because he couldn’t get anybody to agree with him, he starts signing them like they’re butter,” Trump said at a 2016 Janesville, Wis., town hall. “So, I want to do away with executive orders for the most part.”
But as soon as Trump took office, like other presidents, he started issuing his own executive orders to fulfill campaign promises, such as banning Muslim immigration and ending so-called “sanctuary cities” protecting illegal immigrants.
But he ultimately learned the downside of governing by executive order: Courts can overturn them as unconstitutional, and future presidents can revoke them.
A federal judge declared unconstitutional Trump’s order ending “sanctuary cities.” A similar ruling forced him to revise the order banning Muslim immigration. And his successor, Joe Biden, revoked both.
It’s a familiar pattern. Recently, a federal appeals court declared unconstitutional Obama’s 2012 order protecting the so-called “Dreamers.” But it suspended enforcement, pending a lower court’s review of Biden’s effort to revise the order protecting those brought here illegally as children.
Those examples give some sense of the complexity of using executive orders. Frustrated presidents have increasingly used them in recent years to overcome the partisan gridlock keeping Congress from resolving national problems like immigration through normal legislative action.
And their use will likely continue if gridlock persists, as long as the courts provide presidents enough leeway through delay or approval to allow their executive actions to be at least temporarily effective.
Nothing in the Constitution specifically authorizes a president to issue executive orders. But the American Bar Association notes that Article II grants the president “executive power,” limited only by the requirement that he “take care that the laws be faithfully executed” or face impeachment and removal for “treason, bribery or other high crimes and misdemeanors.”
Presidents have interpreted that from the outset as broad authority to use executive orders to implement their policies.
George Washington issued the first one in June 1789, six weeks after his inauguration. It directed the superseded departments from the Articles of Confederation to assist the new departments that Congress was creating.
According to The American Presidency Project at the University of California at Santa Barbara, every president but William Henry Harrison (who served only one month) has issued executive orders, from the single one by President James Monroe to the 3,721 issued by Franklin D. Roosevelt in just over three terms.
From declaring a bank holiday upon assuming the presidency to creating agencies to fight the Depression, Roosevelt never hesitated to use his executive powers, especially when the Supreme Court’s conservative majority rejected some of his initial legislative solutions.
During his first term, the court not only invalidated some laws Congress passed to fight the Depression, but also overturned Roosevelt’s subsequent executive orders carrying out their provisions.
The retirement of several conservative justices ended that judicial blockade in his second term, enabling many later Roosevelt directives to pass muster.
In 1944, the court — now dominated by his nominees — upheld his controversial post-Pearl Harbor 1942 directive to relocate to detention camps all persons of Japanese ancestry from large parts of the western United States designated as “military areas.” By 6-3, it concluded the action was a “military necessity” and was not based on race.
In 1951, however, the Supreme Court blocked his successor, President Harry Truman, from seizing the nation’s steel factories to stop a strike during the Korean War. By 6-3, it ruled he exceeded his authority. Truman’s four appointees divided 2-2 in the decision.
That decision did not become a precedent preventing future presidents from acting without congressional approval. In the 1960s and 1970s, the court rejected suits challenging actions by several presidents during the Vietnam War.
More recently, immigration became a major subject for executive orders, especially after Congress twice failed to pass the kinds of broad reforms many in both parties considered necessary.
During the 2020 presidential campaign, some Democratic hopefuls promised to expand the use of executive orders to resolve other pending problems.
Sen. Elizabeth Warren said she would use executive orders to cancel up to $50,000 in student-loan debt and ban all oil drilling on public lands. According to the Washington Post, Sen. Bernie Sanders’ advisers were preparing an array of potential executive orders including legalizing marijuana and importing prescription drugs from Canada.
Biden suggested he’d take a more measured attitude toward using the president’s executive powers, promising to revoke numerous Trump orders but declaring in an ABC town hall that a president shouldn’t act on broader issues like raising taxes “unless you’re a dictator.”
Unsurprisingly, when he became president and signed more than 35 executive orders and memorandums, conservatives cited those words. “By his own definition, Biden is already governing like a dictator,” conservative columnist Joe Concha wrote in The Hill.
Though that exaggerated his comment, Biden hasn’t hesitated to use executive orders, most recently to pardon people convicted of marijuana possession and cancel up to $10,000 in student loans for lower- and middle-income Americans.
Just like clockwork, some critics assailed his decisions, while others filed lawsuits in ideologically “friendly” federal courts against his student loan forgiveness. That ensured that, like with his predecessors, federal courts will determine the extent of Biden’s unilateral executive authority.
