Executive Orders and the President

Executive orders are at the center of the current debate surrounding the power of the president.

During the 2014 State of the Union address, President Obama reignited this debate when he stated that if Congress refused to act on certain issues, "I've got a pen and I've got a phone, and I can use that pen to sign executive orders and take executive actions...that move the ball forward."

This statement struck terror into the heart of traditionalists everywhere because it seemed to imply that the president was willing to side-step Congress in order to break the stalemate that has gripped Washington in recent years.

Many argue that the president needs to use whatever power he has to bring about change, and if Congress is unwilling to assist him in that process, then he should take up the task himself. 

There is, however, one tiny problem with that idea: presidents aren't supposed to make law, they are supposed to execute law.

The Power of Executive Orders

Executive orders are as old as the presidency and they have a long history of courting controversy. Click here for a really great article detailing the controversial history of executive orders. Executive orders are designed to help the president implement the laws passed by Congress. They are instructions given to the 15 different cabinet agencies that offer guidelines on how to implement laws or help to clarify law.

Over time, and as the bureaucracy has grown, presidents have realized that executive orders are actually very powerful tools. An executive order is in effect until they are rescinded and they govern all of the executive branch. When you consider that the executive branch contains the Department of Homeland Security, the Department of Health and Human Services, the Environmental Protection Agency, the Department of Education, and the Department of Defense (to name a few), it becomes clear that an executive order can have a very real effect on the lives of American citizens.

The whole debate centers around power and whether or not the presidency, with its executive orders, has accumulated too much. Has the presidency tipped the delicate balance of power in Washington? Theodore Roosevelt certainly didn't think so. He is quoted as saying, "I don't think that any harm comes from the concentration of power in one man's hands."

I respectfully disagree.

Defending the Separation of Powers

The concentration of power in one man's hands is exactly where harm comes from and our Founding Fathers would agree with me. The Declaration of Independence is so much more than our favorite quote about inalienable rights, it is also a detailed list of the abuses of power demonstrated by King George III. For instance:

- "He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature..."

- He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people."

- He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."

King George III is a prime example of the danger of placing too much power in the hands of one man. The Framers of the Constitution were devoted to the idea of separation of powers and as such, they created a national government that had three branches, each with a distinct power and purpose. No one branch is supposed to act unilaterally and without oversight from the other two branches. The absence of such oversight is when power becomes dangerous. If you doubt me, let's consult Montesquieu, the philosopher who created the idea of separation of powers.

Montesquieu

"Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go." - The Spirit of the Laws, Book XI, Chapter 4

and

"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner."- The Spirit of the Laws, Book XI, Chapter 6

A Plea for Caution

Pragmatic solutions for getting things accomplished in Washington are tempting and attractive. However, the words of Montesquieu should urge us towards caution. Presidents who use executive orders aren't tyrannical dictators, but power corrupts, and power can corrupt an office just as easily as it can corrupt an individual. Our Constitution was designed to avoid the accumulation of power in one location and we should strive to uphold the balance of power that they created between the three branches by urging our president to exercise extreme caution when utilizing the executive order.

Sources and Recommended Reading

Obama to Sign Two Executive Orders Aimed at Narrowing the Gender Gap in Wages- Washington Post
Obama's Incredibly Underwhelming Executive Orders- National Journal
How President Obama Could Be Swept Away With His Executive Orders that Defy Congress and the Courts- Forbes