Once a Critic of Executive Orders, Trump Embraces Unilateral Action
With Congress essentially AWOL, the courts offer the only real check on presidential power.
There may be no greater convert to the dubious virtues of unlimited executive power than a former skeptic who has taken up residence in the White House.
President Donald Trump, once a critic of the use of executive orders to bypass congressional inaction or opposition, now boasts of how many he's issued in his own name. The once-limited U.S. presidency looks increasingly like a not-so-constitutional monarchy that threatens to leave the legislative branch as a vestigial organ.
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A Big Reversal on Executive Orders
Over the weekend, the White House announced, "@POTUS is signing Executive Orders at the fastest pace in decades. No president has signed 200 Executive Orders this quickly since President Franklin D. Roosevelt."
Not all of us were aware of a contest around the issuance of decrees by White House residents—though, considering the low quality of people who have occupied the Oval Office, it's not that big a surprise. But for this administration to tout its executive order bona fides is a bit of a turnaround, considering how critical Trump was of their use in the past.
"I don't like executive orders," Trump told Face the Nation's John Dickerson in 2015. "That is not what the country was based on. You go, you can't make a deal with anybody, so you sign an executive order. You really need leadership." He added, "that hasn't happened under President [Barack] Obama. So now he goes around signing executive orders all over the place, which at some point they are going to be rescinded or they're going to be rescinded by the courts. We will see what happens."
Earlier, in 2012, Trump complained, "why is @BarackObama constantly issuing executive orders that are major power grabs of authority?"
It's a long way from criticizing executive orders as "power grabs" to advertising that your administration issues them more eagerly than any chief executive since FDR, who inspired such fears of dictatorial overreach that the 22nd Amendment was passed to prevent future presidents from lingering so long in office. Not that Trump's taste for unilateral power is new; during his first term he immediately embraced the tool, issuing dozens of them during his first 100 days in office.
The Modern Method of Rule by Executive Order
As Trump's justified criticism of then-President Obama illustrates, executive orders aren't a novel expression of presidential authority. In his 2008 book, The Cult of the Presidency (revised last year) Cato Institute senior vice president for policy Gene Healy taps former President Theodore Roosevelt as having "helped initiate the modern method of rule by executive order." Healy writes: "In his seven years in office, TR alone issued 1,081, nearly as many as all prior presidents combined."
If he keeps up this pace, Donald Trump is on track in just one term to meet or exceed the number of executive orders issued by Theodore Roosevelt. But he has a long way to go to beat the 3,726 executive orders issued by FDR over four terms.
The orders issued by Trump in his second term cover a range of topics from crime, to flag-burning, to, of course, tariffs. The president is largely using orders as a substitute for shepherding legislation through Congress. As Trump suggested in his 2015 interview, that's not really what they're for.
As the Federal Register details, "the President of the United States manages the operations of the Executive branch of Government through Executive orders." They're basically interoffice memos from the boss to the people he directly manages. That doesn't sound like a lot. But because so many of the rules under which we now live are subject to administrative interpretations of vague laws, directives from above to administrative agencies can redirect resources and turn what was once considered legal into a felony—as gun owners have discovered more than a few times.
"The last three presidents in particular have strengthened the powers of the office through an array of strategies," Harvard Law School's Erin Peterson wrote in 2019. "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."
What Can Be Decreed Can Be Rescinded
But because executive orders are interoffice memos from the boss, they can be rescinded by later orders from new bosses with different ideas. Some of Trump's second-term orders have been devoted to reversing former President Biden's earlier decrees, such as last month when Trump revoked Biden's Executive Order 14036 (Promoting Competition in the American Economy).
"Biden's order never promoted genuine competition," Clyde Wayne Crews of the Competitive Enterprise Institute commented as he welcomed the move. "Instead, it expanded Washington's reach into the economy, branding more regulation as 'competition' in true Orwellian fashion."
But the revocation also illustrated the limits of executive orders. Crews went on to warn that since this was a matter of battling orders redirecting excessively powerful administrative agencies, "the next progressive administration can revive the same approaches and will likely be inclined to do so even more aggressively than Biden did."
Judges Battle Presidents, With Congress Nowhere To Be Seen
Like earlier presidents, but perhaps even more so, Trump is prone to stretching the limits of executive power, as he did in federalizing and deploying National Guard Troops to Los Angeles—a move described by U.S. District Court Judge Charles Breyer as "a serious violation of the Posse Comitatus Act." Likewise, the U.S. Court of Appeals for the Federal Circuit upheld a lower court ruling that federal law "does not authorize the tariffs imposed by the Executive Orders."
Executive orders by Joe Biden—notably, an attempt to forgive student loans—were also turned away by the courts for exceeding presidential authority. An order issued by Obama regarding immigration received similar treatment. For years, the executive branch has pushed its power to act unilaterally through executive actions, restrained only by judicial branch interpretations of the boundaries placed on such authority by laws and the Constitution.
Absent through most of this has been Congress. Legislators campaign for office and appear on television, but they show little interest in protecting their responsibility to make or repeal laws from presidential encroachment. That leaves us with judges battling an increasingly monarchical presidency while an almost vestigial legislative branch watches from the sidelines.
