Executive ‘legislation’

The term rises and ebbs with the political climate. It serves as a directive for mundane policies such as changing agency authority of the Midway Islands. It also shapes peoples’ lives and impacts international politics. The term is “Executive Orders,” and presidents have customarily used them since George Washington.

Executive orders are not subject to the Madisonian model of checks and balances. This is what makes them so dangerous. The Constitution provides the president with a broad range of powers, most notably Article 2 Section 3 of the Constitution, and another concept called inherent powers.

Article 2 Section 3 calls for the President to “take care so that the laws be faithfully executed.” This “take care” clause states that the president must prioritize the country’s interests over personal matters. It is here that we find inherent powers, which allows the chief executive to take appropriate measure to protect national security.

The Constitution never specifies the term “executive order.” It is an executive customary power dating back to the Washington administration. Back then, the security fear was an invasion from Britain. Today the global threats are significantly different, but executive orders are measures to protect national security. They enable the president to do two things: 1) reinforce the laws of the Constitution and 2) reorganize government, such as the creation of the Department of Homeland Security in 2002.

The problem is more with the first point. Executive Orders run the gamut. President Roosevelt used an executive order to place Japanese-Americans into intern camps after Pearl Harbor. President Truman used an executive order to desegregate the Unites States armed services in 1948. Some people felt it had more to do with the 1948 presidential election. Regardless, this order was clearly a key step in leading to the civil rights movement. President Kennedy established affirmative action policy with an executive order in 1960.

The interesting thing is that all 45 president have used executive orders. However, most early presidents used them sparingly. This may have had to do with the fear of endowing the presidency with too much power.

One of the early titles ascribed to the presidency was the term “Chief Custodian,” which meant that the President would simply follow through legislation passed by Congress. However, times changed and by the 19th century, Presidents began to issue more executive orders and relied on them more as policy tools. Franklin Roosevelt holds the record by issuing 3,522 executive orders. The main reason for this was to help push his New Deal legislation.

Most modern presidents have issued about 300 executive orders for their entire presidencies. President Trump has already issued a bevy of orders in just a few weeks in office. Several take strident policy positions, including the recent banning of refugees from countries connected to terrorism However, not all countries connected to terrorism are on this list. This includes Saudi Arabia, which was home to many of the 9/11 attackers.

Admittedly, combatting international terrorism is no simple task; 9/11 will forever be a painful part of our collective memory. There should be concern about who enters the United States. Today, we all give up a little privacy to protect security, as noted with stringent airport checks. This utilitarian approach or greatest good for the greatest number” allows us to fly safely.

Executive orders must be used tactfully and equitably in balancing liberty and security. This is no easy task, and the Middle East refugee crisis shows why

This story was originally published February 7, 2017 at 1:54 PM with the headline "Executive ‘legislation’."