So what if the President does executive orders! Did not prior presidents do the same thing? Yes and no! George Washington did 8, John Adams 1, Thomas Jefferson 4, James Madison 1, James Monroe 1, John Quincy Adams 3, and Andrew Jackson 12.
The first seven presidents totaled 30 executive orders over 47 years. The most recent seven presidents Barack Obama 168, George W. Bush 291, William J. Clinton 364, George Bush 166, Ronald Reagan 381, Jimmy Carter 320, and Gerald R. Ford 169 totaled 1,859, over 40 years – 62 times as many. Obviously something has radically changed.
A review of the literature shows that, in fact, Barack Obama has fewer executive orders than most and proponents of him are quick to make this distinction. They also convey the idea that all executive orders are similar and constitutional unless undone by Congress or declared unconstitutional by the Supreme Court.
These ideas are easy to dismiss. Rarely does Congress undo an executive order because the president’s party runs interference. Moreover, virtually no executive orders are declared unconstitutional because personal damage to someone (not the Constitution) has to be demonstrated and those damaged must be willing to pursue a legal course for several years before their case reaches the high court.
That all executive orders are similar is the biggest fallacy and the one most perpetuated by the establishment media. Rarely do they share the different types of executive orders as I do here. Initially executive orders were largely inter-departmental directives. They were never to have the force and effect of law as only Congress was allowed to make federal law (Art. I, Sec. I, Clause I).
The President is to execute the law of the Legislative Branch, not make it himself. A few laws of Congress need a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. His executive order doing so stated their request and his selection of the last Thursday of November as that day.
An executive order implementing a single, recently passed (within weeks), law of Congress is constitutional. Very few of the executive orders of today fit the George Washington, or constitutional model.
Nearing the end of the 1800s presidents, fearing rejection of Congress on something that they wanted and not having a specific single act of Congress authorizing their action, began gluing pieces of ancient laws together, some decades old, and initiating an executive order from these. Congress should have threatened impeachment as presidents were usurping their clear constitutional jurisdiction but didn’t, largely again, because of political party.
It was Richard Nixon during the 1970s that found the burden of gluing pieces of ancient laws together too much work and issued them without it. Impeachment should have followed on this issue alone but didn’t. Presidents from his time to ours have continued the practice of making executive orders simply presidential decrees as dictators do, effectively creating new laws without any review and unconstitutionally usurping the powers of Congress.
The normal wordage now used: “By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows…” is designed to sound official but it is simply made up. Added phraseology “as President,” or “by the Constitution” or, “as Commander in Chief of the Armed Forces” still establishes no specific authority.
The Founding Fathers’ concept of separation of powers has been heavily altered the last 50 years. The Constitution allowed only the Legislative Branch to make federal law as noted. A law’s review by 536 individuals (435 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in 30 survived the rigid scrutiny of both branches and bore the signature of the President.
Today we need to reject the executive order process that increasingly allows the executive branch to replace Congress as the principal law-making branch.
This is why Barack Obama’s executive orders differ from past presidents and is far more dangerous. In his State of the Union Address he boldly threatened to replace the Legislative Branch of government by doing it alone, through executive orders, if they did not do as he wished and in a timely fashion.
Such is unprecedented and totally unconstitutional. Today, through the executive order process, the President makes half as many laws (decrees if you prefer) as does the Legislative Branch – about three a week. The practice is killing liberty.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers. He has taught history and political science for over 25 years at Taft