The Tenth Amendment is the foundation of the Constitution.
– Thomas Jefferson
Most schoolchildren are taught in civics and history classes that America’s government is based on a system that separates powers among three distinct entities: the judiciary, the executive, and the legislative. Legislators make the laws, courts interpret them, and the president swears an oath to the Constitution to uphold them.
Nowhere does the Constitution give the president the authority to declare laws with – as former aide to President Clinton, Paul Begala, famously said to a New York Times reporter after a July 1998 White House trip to China – a stroke of the pen.
Yet, that’s what executive orders accomplish.
It’s bad enough that this nation has already seen the near-complete destruction of its Tenth Amendment, guaranteeing that rights not already granted to the federal government are reserved to the states or to the people. It’s equally dire that the Ninth Amendment, stipulating that individuals retain the rights that aren’t specifically delegated or enumerated in the Constitution, is a long-forgotten memory.
But this steady centralization of power into the hands of Washington, DC, politicos has grown even narrower.
Executive orders in effect usurp the powers and authorities of the legislative and judicial branches, and centralize control in the hands of the executive. Our once-genius system of checks and balances, with a diverse spread of powers among the states, the people, and lastly the federal government, is torn apart and in its place stands a government that’s more akin to what the Founding Fathers fled – a monarchy.
Still, even George Washington issued executive orders. Eight of them, in fact.1 His first came on June 8, 1789, just three months after he was sworn in as the nation’s first president. It wasn’t actually called an executive order at the time; that term didn’t come into common use until 1862, under President Abraham Lincoln. And it was rather generic in content, instructing all the leftover officers from the Confederate government to “impress me with a full, precise, and distinct general idea of the affairs of the United States” that they were tasked with overseeing. That’s akin to an employer asking for employees to prepare and present reports on the state of their individual departments – quite proper and necessary. On top of that, the Constitution itself allows for the president to make such requests. Article 2, section 2, clause 1 states: “The president... may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
Washington’s next executive order – defined as the nation’s first presidential proclamation – came on the heels of a congressional committee request for the president to suggest the people of the United States engage in a national day of thanksgiving. On October 3, 1789, Washington signed a proclamation that declared Thursday, November 26, just that day.2
Contrast that to President Bill Clinton’s multiple orders to label millions of acres of federal land as national monuments. Clinton may have been using existing law to justify his declarations – the Antiquities Act of 1906. But establishing a massive 1.7 million-acre national monument – the Grand Staircase-Escalante in Utah, declared on September 18, 1996, complete with all the accompanying federal land use restrictions – with a quick stroke of a pen is hardly a righteous presidential act.3 That declaration sparked national outrage on several fronts: First, it came absent congressional approval. Second, it came during a highly charged presidential campaign season. Third, it completely disregarded the wishes of Utah state representatives, not to mention the then Republican governor. And fourth, it came as mining rights – and the accompanying million-dollar coal industry that was tied to the property – were coming under fire from the growing influential environmental lobby.
In other words, Clinton’s sweeping decree was not exactly done in the spirit used by some earlier presidents to issue proclamations and orders. It was much more the act of an arrogant tyrant, set on fulfilling a personal agenda and simultaneously dismissive of the confines of constitutional law. Then interior secretary Bruce Babbitt’s oft-repeated media quote summed up the attitude of that White House administration toward executive orders: to paraphrase, he bluntly said the executive had changed the rules of the Constitution and grabbed the powers of the legislative branch.4 And that’s the new law of the land.
President Obama has proven equally dismissive of constitutional confines on the executive branch, turning toward his pen rather than Congress to halt deportations of certain illegal immigrants.5 In June 2012, Obama signed an order that open border activists were quick to defend as simply a directive, rather than an executive order, for the Department of Homeland Security to show restraint in deportations of certain youth, particularly those with clear criminal backgrounds. But as clear eyes reveal, the directive had pretty much the same effect as an executive order. More than that, Obama’s order came not long after the failed DREAM Act – the Development, Relief and Education for Minors Act, opposed by Senate Republicans as a step toward amnesty – and gave the impression of a president bypassing Congress to enact a personal agenda.6
A month later and Obama was at it again, with welfare policy, taking a backdoor approach rather than the more visible and diplomatic route through Congress, to issue a memorandum through Health and Human Services that ultimately gave states an opportunity to reform the work requirements for recipients.7 Critics assailed the memo as providing the means by which states could broaden Temporary Assistance for Needy Families and relax restrictions so more could obtain welfare services without having to abide by 1998 work rules.8 But this time, Obama’s order would cause a bit of a stir among watchdog groups. The Government Accountability Office slapped back at his lone-star decree, saying he didn’t have the authority as president to call for such reforms.9 Rather, law required he take his policy proposal before Congress for approval.
Orders, memorandums, dictates, and proclamations – nowadays, they’re all pretty much the same beast. The lingo may change, but what doesn’t is the fact that the office of the presidency affords the seat holder plenty of opportunity to enact wide-reaching policy, without having to deal with Congress. Not all presidents through history took full advantage to the same degree, however.
Some presidents have actually exercised caution and restraint during leadership. Moreover, some congresses used to actually do their jobs and represent the interests of the people rather than cave and cower to presidential overreach.
At their most basic, executive orders are simply written directives that presidents send to their cabinet and department officials. Prior to the Lincoln administration, the written orders weren’t classified by the now-accepted term of executive orders. Rather, they were called directives, proclamations, policy decrees – or even left untitled.10 The president would simply sign them, like a letter that contained a political directive. Such written orders took a decidedly more formal turn during the Lincoln years, however, and researchers and historians began to number and categorize the directives.
Nowadays, executive orders are signed by the president – sometimes with much fanfare and publicity – and then assigned a number by the Office of the Federal Register. They’re then printed in the Federal Register and formally recorded in the section “Title 3: The President, Code of Federal Regulations.”11
Regardless, they’re still not found in the enumerated powers for the president in the Constitution. Neither are presidential proclamations and presidential memorandums, two other means the executive branch has at its disposal to enact policies without legislative approval.
As of 1957, the generally accepted definition of executive orders, as put forth by that year’s House Government Operations Committee, is that they are written presidential directives that carry the force of law. They are usually aimed at directing the actions of government officials and agencies and are to have only indirect impact on private citizens. But in addition to executive orders, presidents have the power to decree proclamations – signed orders that are aimed at influencing the private citizen more than a government agency.12 Proclamations, however, are not considered legally binding since the president does not have the constitutional authority to order around the private citizen.
Presidential memoranda, meanwhile, seem to take on facets of both orders and proclamations, seeming at times tame-sounding in topic – like President Obama’s September 17, 2013, memo to the secretary of state to compile data about human trafficking activities of several nations that receive US aid – and at other times much more controversial.13
On June 25, 2013, President Obama directed the Environmental Protection Agency in a memorandum to “issue proposed carbon pollution standards, regulations or guidelines” for power plants by June 1, 2014.14 The memorandum furthered an EPA standard from the previous year that targeted newly constructed power plants. Obama’s memo specifically ordered the EPA to develop standards and regulations for existing plants too.15 That’s rather a sneaky way of pushing for more environmental mandates on power plants without having to go through Congress and the open-government route.
Obama’s justification for the issuance of the memo was the Clean Air Act – that he was only giving the EPA a directive that carried out existing and congressionally approved law.16 But his memorandum was hardly devoid of impact. What it did, with a stroke of the pen, was cut Congress out of the debate and set in motion the wheels for more and unfettered EPA regulation.
And in fact, it didn’t take long for those additional environmental regulations to take shape. In October 2013, Obama announced a new executive order requiring federal agencies and local jurisdictions to factor in climate change – including controlling certain emission levels – while taking on new projects, like bridge construction or roadwork.17 Congress still controlled the purse strings on any projects the government wanted to pursue in line with environmental mandates.18
Still, Obama’s run around Congress was not exactly in the same spirit that guided our earliest presidents, who managed to exercise caution when it came to bypassing the Constitution with executive orders and dictates.
Our first six presidents, from George Washington through John Quincy Adams, only signed a total of eighteen of them. Andrew Jackson broke into double-digit land, with twelve. Presidents William Henry Harrison, Zachary Taylor, and James Garfield issued, in order, zero, five, and six.19 Then came Abraham Lincoln, and civil libertarians found their foe.
History paints Lincoln kindly, and he may now be regarded as one of America’s most revered presidents. But during his term, he actually caused a massive constitutional crisis with his issuance of an executive order during the unfolding of the Civil War, in 1861, at a time when federal troops were facing constant attack from militias in Virginia and Maryland.
Lincoln, hoping to quell the attacks, signed an executive order that suspended the right of habeas corpus – the right for an arrested individual to appear before a judge and hear the charges – for anyone detained for inciting acts of violence along the train route between Philadelphia and Washington.20
One of the militia’s major leaders, a Maryland lawmaker named John Merryman, was subsequently captured and thrown in jail at Fort McHenry.21 Merryman’s legal team argued his imprisonment was illegal because his right of habeas corpus was wrongfully violated, a line of logic they turned to the Constitution to argue.22 Article 1, section 9 reads: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” They also argued that only Congress had the right to suspend habeas corpus, not the president, given that the section of the Constitution that spoke of the law, article 1, is the portion of the text that speaks to the powers of the legislative branch, not the executive.23
Yet Merryman stayed in prison for another seven weeks, after which he was never charged with a crime.24 And in the legal fury that ensued, Congress actually passed a law that ceded to Lincoln the very same power he had already grabbed, via the Habeas Corpus Act of 1863.
A couple of years later, Lincoln again sparked a massive uproar with his Emancipation Proclamation, declaring on January 1, 1863, that “all persons held as slaves” in the rebel states “are, and hence-forward shall be free.”25 Of course, its success depended wholly on a Union win – and contrary to what popular culture teaches, the order did not end slavery. It only addressed slavery among the states that had actually seceded from the Union.
But it did drive home the point that a pen in the hands of a president is a very powerful thing.
Still, in terms of sheer numbers, Lincoln – with a total of forty-eight – did exercise considerable restraint when it came to signing executive orders. It wasn’t really until the progressive era and its accompanying nanny-type government mantra that presidents really started grabbing at the power of the legislative branch and decreeing by pen new laws of the land.
Theodore Roosevelt has the dubious honor of breaking the 1,000 mark with 1,081 signed orders, nearly five times more than any other president in history. Then came Woodrow Wilson, Calvin Coolidge, and Franklin Delano Roosevelt, and it was almost as if former White House chief of staff and key Democrat political strategist Rahm Emanuel had traveled back in time and whispered his famous words: never let a crisis go to waste. Plagued by war, economic depression, and a mind-set that government can solve all problems, these three presidents collectively issued more than 6,500 executive orders.26
Ten weeks after the Japanese bombed Pearl Harbor, in February 1942, FDR signed Executive Order 9066, granting the power to US authorities to remove anybody they “deemed necessary” from declared military areas. So the military labeled the entire West Coast a military area and began ordering its evacuation.27 The region was heavily populated by those of Japanese descent, but within weeks of the executive order, 127,000 Japanese Americans had been pushed into internment camps around the nation.28 One plaintiff, Fred Korematsu, did test the right of the president to issue such a far-reaching command against an entire segment of American citizenry without obtaining congressional authority. But in Korematsu v. the United States, the Supreme Court ultimately determined that the order was in line with the president’s commander-in-chief powers over the military.29
With a quick stroke of the pen, Roosevelt was able to upset an entire population, prompting them to sell their homes and possessions , abandon their careers and jobs, and live in sometimes subpar conditions – under the watchful eyes of armed guards – while the war ensued.30 The irony is that by war’s end, a total of ten Americans were convicted on charges related to spying for Japan, but none were of Japanese heritage.31
In June 1933, Roosevelt signed an executive order that appointed a leader of the Federal Emergency Administrator of Public Works, a special board for his Public Works projects – and granted that agency the authority to spend up to $400 million to build highways and $238 million for the Navy to construct vessels.32
Among his other executive orders: He signed a proclamation the day after his inauguration, on March 5, 1933, to declare a bank holiday and shut down all financial transactions and exports of gold, silver, and other commodities for four days.33 He issued a series of orders in about a three-week period in April 1933 that banned the export of gold and that removed gold as the standard of US currency.34 He created the National Labor Board in August 1933 to bolster collective bargaining powers for unions by executive order.35 And he established via a November 1933 executive order the Civil Works Administration, a project of the congressionally approved Federal Emergency Relief Administration to provide jobs for the unemployed.36 But it was a poorly planned project: the CWA shut shop just a few months later under the weight of its own payroll demands. Four million were hired under the program, but taxpayers were shelling out $200 million each month to keep the workers employed.37
That’s just a quick glance at FDR’s first year in office. By the end of his terms, he issued a total of 3,522 executive orders and proclamations – by far, the most of all presidents. Woodrow Wilson is second, with 1,803.38 But the number doesn’t tell the full story.
Both Jimmy Carter and Ronald Reagan, two presidents at ideological opposites on the political spectrum, nevertheless both signed similar numbers of executive orders, at 320 and 381, respectively.39
What matters more than the number is how far an executive order extends into the domain of another branch of government – the judicial and the legislative – and how much chipping to the natural order of the Constitution occurs with its issuance.
After the government shutdown of October 2013, Democratic Party strategists suggested that the standoff that waged between congressional members and White House officials for sixteen days would lead to President Obama’s issuance of more executive orders.40 The reason? He obviously couldn’t work with Congress – so he had little recourse but to slam his agenda into law with a quick stroke of the pen.
In January 2014, Obama set off a firestorm with remarks made during his first official cabinet meeting of the year about the need to press forward with his desired agenda, with or without Congress. His words, captured by press around the nation: I’ve got a pen and I’ve got a phone, and I’m ready to use them. And I’m not just going to sit around and wait for Congress to pass legislation.41 He then mixed the threat of executive order with a rather silly vow to work with Congress – much as a playground bully works with victims, so long as they turn over their lunch money.
That’s not really the spirit that is supposed to guide this nation’s government.
The three branches were created as separate but equal powers, and executive orders automatically tip the scales toward the president. For that reason alone, they should be tossed from America’s system of governance and banned from future presidencies. But when presidents snatch that power to decree by pen for purposes of personal agenda and personal politics – only because Congress won’t pass a pet policy, for example – that’s an arrogant mock at Congress, the entire legislative process, and the Constitution, and America’s entire rule of law takes a major hit.
Recall George Washington’s response when the British surrendered at Yorktown, Virginia, in October 1781. This is the spirit that’s supposed to guide our nation. Congress was reneging on its promise to pay the troops, and as the war wound down, Washington struggled to find a way to compensate his men. One of his officers, Col. Lewis Nicola, wrote him a letter, suggesting that the inability of Congress to provide the military with its earned salaries was only proof that the new government was doomed to fail.42 Nicola said Washington should take a bold step and use his popularity to seize control of the government – to declare himself king.43
Washington’s response was swift.
In a letter sent back that same day, he first expressed shock at Nicola’s suggestion and then abhorrence. He made clear, in just a few brief sentences, that he was about the last person in the world such an idea would appeal to and called on Nicola to turn quickly from that thought – and never again broach the topic.44
That’s a sharp contrast to many of the presidents who followed with far less humble attitudes. And sad to say, but more presidents in modern-day America would probably agree with Nicola than with Washington.