With Executive Order Avalanche, Trump Continues Trend Toward a Monarchical Presidency
We have too much rule by decree by whoever currently holds the office of president and a pen.
Well before President Donald Trump returned to office, his supporters boasted that he would start the second term with a flurry of executive actions. The new president exceeded expectations with an avalanche of pardons, orders, and edicts on matters great and small. Some should be welcomed by anybody hoping for more respect for liberty by government employees. Others extend state power in ways that are worrisome or even illegitimate. All continue the troubling trend over the course of decades and administrations from both parties for the president to assume the role of an elected monarch.
From an Interoffice Memo to 'Shock and Awe'
"When President Trump takes office next Monday, there is going to be shock and awe with executive orders," Sen. John Barrasso (R–Wyo.) predicted last week.
The president signed some of those orders as he bantered in the Oval Office with members of the press, engaging in more interaction than we saw from his predecessor over months. Wide-ranging in their scope, Trump's orders "encompassed sweeping moves to reimagine the country's relationship with immigration, its economy, global health, the environment and even gender roles," noted USA Today.
Executive orders, which made up the bulk of Trump's actions (he also pardoned and commuted the sentences of participants in the January 6 Capitol riot), are basically interoffice memos from the boss to executive branch agencies. "The President of the United States manages the operations of the Executive branch of Government through Executive orders," according to the Office of the Federal Register of the National Archives and Records Administration.
That doesn't sound like much—and at first, it wasn't. Executive orders as we know them evolved into their modern form from notes and directives sent by the president to members of the cabinet and other executive branch officials. Nobody tried to catalog them until 1907.
But because executive branch officials interpret and enforce thickets of laws and administrative rules under which we try to live, guidance from the boss is powerful. Interpreted one way, a rule regulating unfinished gun parts leaves people free to pursue their hobbies; interpreted another, and those owning the parts are suddenly felons. The president can push interpretations either way.
They Can Be Used Correctly, or Abusively
So, some of Trump's executive orders are very welcome, indeed, for those of us horrified by federal agencies pushing the boundaries of their power.
"The vicious, violent, and unfair weaponization of the Justice Department and our government will end," Trump said in his inaugural address regarding an order intended to punish politically motivated use of government power. "I also will sign an executive order to immediately stop all government censorship and bring back free speech to America," he added of another.
If a president wants to use the power of office to tell federal minions to mind their manners and respect individual rights, nobody should object.
But other orders seek to exercise power beyond the boundaries of presidential authority—or even the power of the federal government. One executive order purports to redefine birthright citizenship so as to exclude those who are born to parents illegally, or legally but temporarily, in the United States.
"This is blatantly unconstitutional," argues George Mason University law professor Ilya Somin, since the 14th Amendment "grants citizenship to anyone 'born … in the United States and subject to the jurisdiction thereof.' There is no exception for children of illegal migrants." The issue has also been addressed by the U.S. Supreme Court, which found that the provision applies to anybody subject to American law—basically, all non-diplomats.
Likewise, writes Somin, Trump's plan to invoke the Alien Enemies Act to deport immigrants who commit crimes runs afoul of the fact that the U.S. is "not in a 'declared war' with any foreign nation."
These issues will be hashed out in court—the ACLU has already filed suit over the birthright citizenship order. But flaws in these ideas could have been exposed during congressional testimony and debate. It's especially difficult to justify many of these orders given that Republicans hold the majority in both houses of Congress. But even if the legislature was divided or controlled by Democrats, the federal government consists of three branches intended to slow action and encourage deliberation.
Not that Donald Trump invented the vice of unilateral presidential dictates.
Executive Actions and an Empowered Presidency
"If it seems as if more recent presidents have had more power than even Washington or Lincoln, it's not an illusion," Harvard Law School's Erin Peterson wrote in 2019. "The last three presidents in particular have strengthened the powers of the office through an array of strategies. One approach that attracts particular attention—because it allows a president to act unilaterally, rather than work closely with Congress—is the issuing of executive orders."
Peterson addressed concerns about Trump's actions during his first term. But President Joe Biden, who took office in 2021, was told to "ease up on the executive actions, Joe" by even the sympathetic editors of The New York Times after a flurry of executive orders that set a new record up to that point.
"These directives," the Times editors wrote "are a flawed substitute for legislation." Sympathetic to his policies, they pointed out the orders could be reversed by a future executive.
Inevitably, and understandably, many of Trump's actions upon assuming office for the second time have involved reversing Biden's orders—some of which had themselves nullified Trump's first-term actions. It's a battle of government by decree with the advantage going to whoever currently holds the presidency and a pen.
"That turns the Constitution on its head," Gene Healy observed in his recently revised book, The Cult of the Presidency. "The Framers erected significant barriers to the passage of legislation in an attempt to curb 'the facility and excess of lawmaking'.…But when the executive branch makes the law, those constitutional hurdles then obstruct legislative efforts to repeal it."
Note that just last year, 74 percent of respondents to a Pew Research poll said, "it would be too risky to give presidents more power to deal directly with many of the nation's problems." Over 70 percent of both Democrats and Republicans agreed. Executive actions are all about unconstrained power.
Trump is on firm and even welcome ground when he uses his presidential power to rein in executive agencies and undo the excesses of his predecessor. But making policy and passing laws is supposed to be difficult and should be left to the messy channels established by the Constitution.
