As we approach a new Presidency, Donald Trump has notified us that he plans on implementing over 100 Executive Orders. Some people wonder what an Executive Order is; others wonder how far the President can go in using this power. Still other people ask how checks and balances can be used to make sure that a balance of power in our government is maintained. Although there is a definition of Executive Powers, the description is quite limited.
The Executive Powers are part of Article II of the Constitution. The President is our Commander-in-Chief, the head of state, our chief law enforcement officer, and the leader of the executive branch. His power to issue executive orders has been defined in this way:
An executive order is a directive from the President that has much of the same power as a federal law. Several landmark moments in American history came about directly from the use of executive orders issued from the White House’s desk, including one Supreme Court decision that limited a presidential executive order issued by Harry Truman.
The president’s power is not unlimited regarding Executive Orders. The checks and balances of the other branches come into play. Congress can pass legislation to nullify the Executive Order. The Supreme Court, in fact all federal courts, can also rule against the Executive Order if it believes the president has violated the Constitution.
Executive Orders are built into our Democratic Republic:
Every President since George Washington has used the executive order power in various ways. Washington’s first orders were for executive departments to prepare reports for his inspection, and a proclamation about the Thanksgiving holiday. After Washington, other Presidents made significant decisions via executive orders and presidential proclamations.
President Abraham Lincoln suspended the writ of habeas corpus during the Civil War using executive orders in 1861. Lincoln cited his powers under the Constitution’s Suspension Clause, which states, ‘the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it.’
The number of Executive Orders passed, from one presidency to another, varies substantially:
The turn of the 20th century saw an uptick in the usage of executive orders with Presidents like Theodore Roosevelt and Woodrow Wilson issuing over a thousand orders each. Roosevelt utilized executive orders to expand the national parks system and regulate various aspects of industrial and political life.
Franklin D. Roosevelt, holding office during the Great Depression and World War II, issued the most executive orders of any President, with a total of 3,721. His presidency exemplified the expansion of executive power in times of national emergency. Through executive orders, he established key New Deal programs and controversially implemented the internment of Japanese-Americans during World War II.
More recently, Executive Orders issued during the first Trump Administration and during the Biden Administration through 2024 can be found here.
At a time of extreme polarization between the branches of government, we are likely to see an abundance of Executive Orders. Part of the problem is trying to determine whether the president can rely on Congress to pass the legislation he wants to see enacted. Another difficulty he will encounter is that he has only one term to see changes he wants made. Although he has the majority in both the House and Senate, it’s unclear whether they will be willing to fully support his agenda.
The degree to which Executive Orders will be used raises the issue of overreach in the federal government. How far will the president go in issuing these Orders to see that he achieves his agenda? How active will the Supreme Court be in weighing in on these decisions, at a time when it prefers not to make political decisions? What will Congress do in response to Executive Orders that go against their own agenda?
The Convention of States and the Article V Convention provide the opportunity to ask these questions and decide if the current balance of power encourages political overreach. With an Article V Convention, the people can determine the best way to achieve balance in our federal government.
We want that decision to be in the hands of the people.
