Some facts about Executive Orders … and why Trump’s might work

As a Constitutional conservative, I am not a fan of Presidential Executive Orders, per se.  I prefer that lawmaking be reserved to the Congress – not the President or the Supreme Court.  Still, there are times when Executive Orders are in order.

The initial concept of the presidential Executive Order is to have it available in limited situations or in times of imminent national crisis – when the Congress lacks the time to act quickly.  The Supreme Court has addressed the issue on numerous occasions – sometimes concurring that the President has the power to issue such an edict and sometimes the justices of the high court strike them down as an abuse of presidential power.

There is a widely held belief in political circles that presidents have been increasingly using and abusing the power to issue Executive Orders.  Not necessarily so.  Most of the early presidents issued very few – less than 100, and many in single digits.

The era of excessive presidential Executive Orders began with President Theodore Roosevelt and ended with President Eisenhower – each of the presidents from Teddy to Ike has issued more than 500 Executive Orders.  The least issued in that era was 522 by President Harding.  Teddy Roosevelt kicked off the era with an astonishing 1081 Executive Orders.  But he was not number one.  His cousin Franklin Roosevelt issued a record-setting 3721 – more than 1000 per year for the three terms he completed. Others in the Mille Executive Order club were President Wilson with 1803 and President Coolidge with 1203.

Every president since Jack Kennedy has issued less than 400 Executive Orders.  Considering they served only one term, President Carter (320) and President Johnson (325) likely would have been in the major leagues of Executive Orders had they served a second term.

President Trump has issued 172 Executive Orders – putting him in line with the first terms of his recent predecessors.  Although he has been subject to unprecedented political criticism and accusations, he has done well in having them implemented — even those that were reviewed by the Supreme Court.  He had a couple that were declared excessive to his presidential powers, but a subsequent refined version accomplished his goals and passed muster in the high Court.

Arguably, the most controversial are the Executive Orders he recently issued to bypass the legislative deadlock that is holding up Covid-19 relief legislation.  He has used Executive Orders to provide a $400 increase in unemployment benefits — $200 less than the first round, but more than some Senate Republicans believed is fiscally responsible.

Democrats are holding out for the $600, but Trump’s bird-in-the-hand approach puts Democrat leaders in a box.  They can go to court to stop the payment, but that looks a bit like political suicide.

Trump is also offering a moratorium on evictions.  He has stolen another of the items that Democrats saw as one of their strong points.

Trump is ordering health insurers to cover pre-existing conditions.  That is consistent with his and the GOP’s position from the get-go – although Democrats claim that Republicans are trying to do away with the provision.  Democrats are using the administration’s court case to abolish Obamacare – which would technically abolish the pre-existing provision.  BUT the GOP plan to replace Obamacare would include a protection for pre-existing conditions.

This is one Executive Order that could run afoul of the courts, but Trump is using it to underscore the administration’s commitment to protecting those with pre-existing conditions and push back against the Democrats’ dishonest claim.

It is entirely possible that Trump’s recent Executive Orders may never have to be implemented.  Democrats face the unhappy choice of either going to court to fight against them – a risky political strategy.  They would be fighting against what they say the people need.  And the court challenges could go on well past the election.

The alternative is for Democrats to sidle up to the negotiating table in a weakened position.  They have already hinted at reducing their ridiculously extravagant $3 trillion relief plan – with its bailout for Democrat-run cities suffering from decades of fiscal irresponsibility and mismanagement.

Though anything Trump does will be spun against him by Democrats and their media allies.  But the truth be known, Trump is no autocrat – and his rather limited and successful use of Executive Orders when Congress refuses to do its job is the proof.

So, there ‘tis.