Presidential executive actions take the form of executive orders, memoranda, and directives. This is a rough review of executive orders.
Executive orders are in the news a lot these days. President Biden has signed dozens of them. Is that a good thing for the nation? The answer, as usual, is not a simple yes or no. Not so many years ago some friends were unhappy with government by executive order that they saw in the Obama administration. It didn’t seem right to them. They had the idea that executive orders could create new law by decree, bypassing the legislative process altogether. We had a long conversation about them as something like office memos from bosses to subordinates giving direction about what needs to be done, and how. They can’t change law or establish new law, they can only direct how law and related regulations are to be administered. Of course it isn’t that simple because the issues are of national importance with major consequences affecting millions of people. Moreover, some laws, especially ones related to national security, give the president enormous power to do things on his/her own authority.
Obama did issue a lot of executive orders, 276 in eight years. Most were about routine administrative matters. Many issued directions for economic recovery from the 2007 Great Recession. Some made significant changes to American policies affecting international relations and national security, generally in the direction of opening trade opportunities. Some addressed programs important to environmental protection and civil rights. On the whole, they strengthened both.
Trump issued fewer executive orders, but at a faster pace, 220 in just four years. Like his predecessor, most were about routine administrative matters. Many made bold statements about education, trade, infrastructure and the like, but were never followed through with plans and action. Some, such as his tariffs, and sanctions related to steel and aluminum, created serious problems for the economy without achieving their stated goals. Others created ways to avoid civil service hiring rules, and encourage limitations on organized labor in the private sector. Orders related to shutting down the border and limiting immigration proved his seriousness about those issues, and treaded beyond the limits of executive authority. Many appear to have been issued for p.r. purposes with no little or no interest in following up. COVID, drug prices, and school choice were on that list. Trump was proud of how he’d taken the regulatory burden off the back of American business and industry through executive orders. What progress he made was done not by executive order, but through the more cumbersome regulatory process. It appears few corporations benefitted. Those that did gained at the expense of employees, consumers and the environment. Few “mom and pop” businesses, family farms, or small manufacturing operations gained anything one way or the other. It was smoke and mirrors.
Executive orders can make for impressive presidential photo ops, grabbing headlines that help set the public tone of the administration. Sometimes they can push hard in the direction of making new law, but in the end, they are directives from the president to the administration on how laws and regulations are to be enforced.
So what about President Biden and the several dozen he’s signed already? They’re mostly aimed at restoring civil service integrity, halting inhuman border enforcement practices, undoing economically harmful trade actions, instructing the government to reengage with the community of nations, and restoring environmental protections eroded by the previous administration. He recently acted by executive order to put administrative teeth into long standing laws requiring the government to buy American made products. In short, he’s using them to set the public tone the president expects his agency heads to honor.
The recent history of executive orders illuminates their weakness. What one president can issue, another can revoke. An order’s authority exists only for the term of the president who issued it. As a practical matter, many are left in place from one administration to the next because the are routine, or establish sensible policies agreed to by everyone as needed.
Executive orders are a reality and have value, but they are not a substitute for legislation, nor can they be allowed to drift in that direction. We’ve had over eight years of congressional paralysis caused by obstinate Senate leadership. It’s far past time for that to end so we can return to government by legislation, not temporary lurches by executive order.