The following is presented as part of The Columbian’s Opinion content, which offers a point of view in order to provoke thought and debate of civic issues. Opinions represent the viewpoint of the author. Unsigned editorials represent the consensus opinion of The Columbian’s editorial board, which operates independently of the news department.
Like other recent presidential candidates, Donald Trump was highly critical during his initial campaign of the increasing presidential use of executive orders, in this case by President Barack Obama.
“Because he couldn’t get anybody to agree with him, he starts signing them like they’re butter,” Trump said at a 2016 Janesville, Wis., town hall. “So, I want to do away with executive orders for the most part.”
But as soon as Trump took office, like other presidents, he started issuing his own executive orders to fulfill campaign promises. But he ultimately learned the downside of governing by executive order: Courts can overturn them as unconstitutional and future presidents can revoke them.
A federal judge declared unconstitutional Trump’s order ending “sanctuary cities.” A similar ruling forced him to revise an order banning Muslim immigration. And Joe Biden revoked both.
It’s a familiar pattern. Recently, a federal appeals court declared unconstitutional Obama’s 2012 order protecting the so-called “Dreamers.” But it suspended enforcement, pending a lower court’s review of Biden’s effort to revise the order protecting those brought here illegally as children.
Those examples give some sense of the complexity of using executive orders. Frustrated presidents have increasingly used them in recent years to overcome the partisan gridlock keeping Congress from resolving national problems through normal legislative action.
And their use will likely continue if gridlock persists, as long as the courts provide presidents enough leeway through delay or approval to allow executive actions to be at least temporarily effective.
Nothing in the Constitution specifically authorizes a president to issue executive orders. But the American Bar Association notes that Article II grants the president “executive power,” limited only by the requirement that he “take care that the laws be faithfully executed.”
Presidents have interpreted that from the outset as broad authority to use executive orders to implement their policies.
George Washington issued the first one in June 1789, six weeks after his inauguration. It directed the superseded departments from the Articles of Confederation to assist the new departments that Congress was creating.
According to The American Presidency Project at the University of California at Santa Barbara, every president but William Henry Harrison (who served only one month) has issued executive orders, from the single one by President James Monroe to the 3,721 issued by Franklin D. Roosevelt in just over three terms.
During the 2020 presidential campaign, some Democratic hopefuls promised to expand the use of executive orders to resolve pending problems.
Massachusetts Sen. Elizabeth Warren said she would use executive orders to cancel $50,000 in student-loan debt and ban all oil drilling on public lands. According to the Washington Post, Vermont Sen. Bernie Sanders’ advisers were preparing an array of executive orders, including legalizing marijuana and importing prescription drugs from Canada.
Biden suggested he’d take a measured attitude toward using the president’s executive powers, promising to revoke numerous Trump orders but declaring that a president shouldn’t act on broader issues like raising taxes “unless you’re a dictator.”
When he became president and signed more than 35 orders and memorandums, conservatives cited those words. “By his own definition, Biden is already governing like a dictator,” conservative columnist Joe Concha wrote in The Hill.
Though that exaggerated his comment, Biden hasn’t hesitated to use executive orders, most recently to pardon people convicted of marijuana possession and cancel up to $10,000 in student loans for lower- and middle-income Americans.
Like clockwork, some critics assailed his decisions, while others filed lawsuits in ideologically “friendly” federal courts against student loan forgiveness. They ensured that, like with his predecessors, federal courts will determine the extent of Biden’s executive authority.
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