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The Dangerous Policy of Ruling by Executive Orders

The Dangerous Policy of Ruling by Executive Orders

President-elect Joe Biden has promised to sign a flurry of Executive Orders on the first day of his administration.  They will mostly undo the many Executive Orders issued by President Trump. Just as Trump used the Executive Order power to undo those of President Obama.

The power of a United States President to issue an Executive Order is enshrined in the Constitution.  In fact, the first one was issued by our first President, George Washington.  It was addressed to all the federal department heads – and ordered them to report all relevant matters to him.

That seems fairly mild by modern standards – and it was.  For many years, such presidential requests and demands were mostly about executive management – memos to those working for the President.  They did not cover broad matters of policy.  One that did, however, was what we refer to as the Emancipation Proclamation issued by President Lincoln.  It was essentially an Executive Order – and a rare one in those times.

In 1907, Executive Orders became more formalized.

The State Department began to catalogue and number them retroactively to 1862.

The use of Executive Orders to impose policy kicked off in the early part of the 20th Century with Presidents Teddy Roosevelt, Woodrow Wilson, Calvin Coolidge and Franklin Roosevelt each issuing more than 1000 Executive Orders – with FDR the granddaddy with 3,522.  After Roosevelt, there was a gradual decline to an average around 200 to 300 per President today.

Even as they declined in numbers, the modern Executive Orders have increased in scope. They have essentially usurped the Congress’ constitutional role in making laws.  Increasingly, the Supreme Court has had to step in and declare a number of them to be an abuse of Presidential power.

In addition to the potential for abusing presidential powers, the use of Executive Orders to make law is that they are not durable.  They do not resolve an issue by creating a precedent, but merely cause dramatic swings in public policy as a new President undoes the orders of his predecessor.

The fate of the Dreamers is one good example. 

After saying that he does not have the power to issue and order regarding the fate of those brought into America illegally as children, President Obama issued a dubious Executive Order protecting the Dreamers from deportation for a few years – literally kicking the problem into the administration of his successor.  The issue is currently in the Courts with no resolution in sight.

Trump refused to issue another Executive Order when the Obama Order ran its course.  He believed that Obama’s Order was unconstitutional – and that only Congress could rectify the situation.  It is now likely that President Biden will issue an Executive Order to restore the Obama Order.  As a result, the DACA folks have been in political Limbo for the foreseeable future unless Congress acts.

There seems to be only two potential solutions to the increasing use of Executive Orders to impose policy goals of a broad nature – essentially to create laws by presidential edict. 

The first would be for the federal courts to define the legitimate use of Executive Orders more narrowly.  The second is for Congress to re-establish its authority as the nation’s law-making body.

Unfortunately, Congress has weakened the balance of power between the three branches by increasingly abrogating its responsibility – instead, deferring to the President and the federal courts to make law.

This is an issue that should elicit bipartisan congressional action since the historic record shows that the abuse of the Executive Order power by various Presidents is bipartisan.

So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

7 Comments

  1. Joe S Bruder

    Live by the sword, die by the sword. Trump made more than his share of executive orders, and Biden will reverse most of them. Trump also bypassed Congress (and the law) often to put people in charge of government on an acting basis because he knew they couldn’t be confirmed. Biden will proceed according to custom and law.

    Just because Biden is planning to reverse a lot of Trump’s decrees doesn’t mean he’s wrong. And Trump has done literally nothing (except scam people for money and TRY TO OVERTHROW THE GOVERNMENT OF THE UNITED STATES) since a month or two before the election. It’s critical for Biden to take over and get the country moving again, as quickly as possible. You might not like what he’s doing (even though it will likely benefit you, me, and most Americans), but hey, “Elections have consequences”. Trump did it his incompetent way, Biden will do it better, faster, and with more thought and planning.

    Reply
    • Dj

      Thought I’d share some of President Trumps ACCOMPLISHMENTS in his 4 years in office.

      Here’s his remarkable record of accomplishments JUST regarding the Economy.

      America gained 7 million new jobs – more than three times government experts’ projections.

      Middle-Class family income increased nearly $6,000 – more than five times the gains during the entire previous administration.

      The unemployment rate reached 3.5 percent, the lowest in a half-century.

      Achieved 40 months in a row with more job openings than job-hirings.

      More Americans reported being employed than ever before – nearly 160 million.

      Jobless claims hit a nearly 50-year low.

      The number of people claiming unemployment insurance as a share of the population hit its lowest on record.

      Incomes rose in every single metro area in the United States for the first time in nearly 3 decades.

      Delivered a future of greater promise and opportunity for citizens of all backgrounds.

      Unemployment rates for African Americans, Hispanic Americans, Asian Americans, Native Americans, veterans, individuals with disabilities, and those without a high school diploma all reached record lows.

      Unemployment for women hit its lowest rate in nearly 70 years.

      Lifted nearly 7 million people off of food stamps.

      Poverty rates for African Americans and Hispanic Americans reached record lows.

      Income inequality fell for two straight years, and by the largest amount in over a decade.

      The bottom 50 percent of American households saw a 40 percent increase in net worth.

      Wages rose fastest for low-income and blue collar workers – a 16 percent pay increase.

      African American homeownership increased from 41.7 percent to 46.4 percent.

      Brought jobs, factories, and industries back to the USA.

      Created more than 1.2 million manufacturing and construction jobs.

      Put in place policies to bring back supply chains from overseas.

      Small business optimism broke a 35-year old record in 2018.

      Hit record stock market numbers and record 401ks.

      The DOW closed above 20,000 for the first time in 2017 and topped 30,000 in 2020.
      The S&P 500 and NASDAQ have repeatedly notched record highs.

      Strengthened America’s rural economy by investing over $1.3 billion through the Agriculture Department’s ReConnect Program to bring high-speed broadband infrastructure to rural America.

      Achieved a record-setting economic comeback by rejecting blanket lockdowns.

      An October 2020 Gallup survey found 56 percent of Americans said they were better off during a pandemic than four years prior.

      During the third quarter of 2020, the economy grew at a rate of 33.1 percent – the most rapid GDP growth ever recorded.

      Since coronavirus lockdowns ended, the economy has added back over 12 million jobs, more than half the jobs lost.

      Jobs have been recovered 23 times faster than the previous administration’s recovery.

      Unemployment fell to 6.7 percent in December, from a pandemic peak of 14.7 percent in April – beating expectations of well over 10 percent unemployment through the end of 2020.

      Under the previous administration, it took 49 months for the unemployment rate to fall from 10 percent to under 7 percent compared to just 3 months for the Trump Administration.

      Since April, the Hispanic unemployment rate has fallen by 9.6 percent, Asian-American unemployment by 8.6 percent, and Black American unemployment by 6.8 percent.

      80 percent of small businesses are now open, up from just 53 percent in April.

      Homebuilder confidence reached an all-time high, and home sales hit their highest reading since December 2006.

      Manufacturing optimism nearly doubled.
      Household net worth rose $7.4 trillion in Q2 2020 to $112 trillion, an all-time high.

      Home prices hit an all-time record high.

      This is an unmatched record of achievement in American Presidential history. Thank you President Trump!

      Now you know why China & the Democrats had to get him out.

      Reply
      • Ben

        DJ,
        You are correct, trump had some historic numbers!
        Only President to lose the popular vote TWICE, only President to one impeached TWICE,
        400,000 dead due to Covid, increased the deficit to an all time high, lowest approval ratings upon leaving office. AND China won the trade war.

        Reply
  2. Tom

    Larry, I agree with you. You see, I am not a hater. The number of executive orders issued in this country is dizzying! I cannot keep up with all of them. Both parties are equally guilty of issuing executive orders like candy. And executive orders can be as addictive to a politician as candy is to a child. I disagree that the courts should define the limitations of executive order. This is the job of congress and it would go a long way to congress asserting its constitutional role. At this point, I think it would be best for all EO’s to be reviewed by a balanced subcommittee of moderate thinkers on both sides of the aisle in congress to determine if the EO should be permanent or should be reversed by replacement with a law. This would help congress exert its constitutional authority as the law making body. Now to defend the DACA executive order. I seem to recall that Obama issued the executive order in hope of stalling the harsh treatment of innocent migrant children long enough for congress to do its job. Congress failed. Your representative and my representative failed in their duty to come together for the good of ALL the people. DACA went through three revisions but the unresolved issue was “chain migration”. Republicans hyped it up saying it would lead to masses of people being able to be sponsored. This was debunked, and, as one who read the law, it could not have happened. To me, there seemed to be fertile ground for both parties to explore and compromise upon – but both parties had their agendas and used this issue as a means to make DACA fail and not pass into law. The failure disappointed me greatly. As a former public school teacher (second career) I saw first hand how much the hopelessness felt by DACA students affected them. I had to struggle trying to get these children to learn (and my pay was held accountable to their test scores) when they would look at me and say, “Why bother, I will never be able to be a citizen and use this stuff you want me to learn.” And then the next step was to turn to gangs such as MS13, selling pot, pregnancy so they could have a child and be rooted in the system and on Medicaid (tax payer dole), making drug candy out of a popular candy called “Smarties”, bring in soda bottles that were actually filled with Margaritas and selling shots at lunch, vandalism to vent their frustration over how unfair life was for them. And then ask yourself, “Why were these children brought here or born here?” Simple answer and Obama nailed it when he said, “This is the price of our hypocrisy.” He was right. We wanted that cheap lettuce, tomatoes, our houses cleaned for cheap, our elders taken care of for cheap, our lawns and gardening done for cheap! All so we could not hire American workers who cost more, thereby being able to keep more of our wealth for us and not allow them to take part in the American dream. Hillary Clinton was a shining example of this when she was caught paying her home servants less than minimum wage because she was letting them live in the basement. And construction companies owned by members of both parties saw that they could build a home for half the price and sell it for a price as if it was built by American workers and profit like crazy! I saw tremendous American Spirit in these DACA children. They dreamed of having small businesses and making it in America – just like both parties say they want. And our congress squelched it by not seeing DACA through to law. And there ’tis.

    Reply
  3. MarianO loo sR

    For a free state USA republic to survive today January 19 to acting amendment second to a free state, demand to the incumbent US45th Trump to must issuing executive orders to call news general Election Day, by the voters to fill out the ballot only inside poll for vote, to prevent another stolen election & more people protests inside congress fighting against subversive collusion of the enemy’s bipartisan coup made Pelosi-Schumer & McCarthy-McConnell, to reinstall its sham U.K. Biden’s Obama for immunity oath to third terms period to assault USA republic representative constitutional democratic founded for freedom & justice.

    Reply
  4. Ben

    Seems like America is afraid of trump and his Cult. There’s more troops in our Capital protecting it from trump’s Cult than there are in Afghanistan and Iraq combined.
    Let that sink in.

    Reply
  5. David Lagesse

    The “Executive Orders” of one President can be simply countermanded and declared invalid by the Next President.
    That is no way to run a Country! No-matter who is President!
    Therefore I am against all Regulations and Executive Orders unless given for non-critical things like declaring Flags to be flown at Half-Mast for a specific reason such as 9-11 or declaring “National Potato Pancake Day”.
    Or CRITICAL things like Federal response to a National or Local emergency like a devastating flood or hurricane.

    Reply

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