Constitutional Powers of Government (Part 2)



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In my previous article (read it here), we took a journey back to Civics class for a lesson on the powers of the legislative branch of the US government.  Today, I want to continue that series on powers of government, now with focus on the executive branch.  Before I get into all the nuances of the executive branch’s powers, let’s define what the branch actually is.  The head of the executive branch is the President of the United States.  It also includes the Vice President, the Cabinet, and the heads of independent agencies.  In total, this branch employs over 4 million workers (which just shocks me at how large one singe branch of the US government truly is).

Now, moving on to the powers of the executive branch.  Article II of the Constitution sets up the powers given to this branch of government.  It is commonly understood that the executive branch “enforces the laws” made by the legislative branch.  Some of those powers include:

  • Commander in Chief of the Army, Navy, and National Guard
  • Grant reprieves and pardons
  • Make treaties
  • Appoint ambassadors, Supreme Court Justices, and others
  • Take care that the laws be executed faithfully
  • Veto a bill from the legislative branch
  • See sources [3] for a full list

Recently, the term “executive order” has become a common phrase seen in the news media.  This term has been derived from the first section of Article II, where it states: “The executive power shall be vested in a President of the United States of America.”  It is more broadly defined in Section 3 of Article II: “He shall take care that the laws be faithfully executed.”  Neither of these passages explicitly grant executive order power, but it has been widely allowed by the courts and implemented by nearly every President since Abraham Lincoln.

Many argue that almost every president has issued executive orders, but the first numbered executive order came down in 1862 by Abraham Lincoln.  (Side note: the number was assigned in 1907 and did not extend back beyond Lincoln’s presidency.)  The most famous executive order was issued on January 1, 1863, also by President Lincoln – the Emancipation Proclamation, which freed the slaves in every state of the country.

Through almost the end of the 1800s, it was practically unheard of to see a president sign more than 100 executive orders during his tenure.  Theodore Roosevelt changed that precedence when he signed over 1,000 executive orders in the beginning of the 20thcentury.  Franklin Roosevelt later outnumbered Theodore by signing 3,728 (although this was over 12 years in office).  Since then, no President has signed more than 1,000 executive orders, with all recent presidents signing less than 400.

While the number of executive orders given by presidents has declined in the past several decades, the scope of those orders seems to have increased greatly.  Most of the orders given in the 1700s and 1800s dealt with lowering flags to half-staff or other minor issues.  President Obama’s executive orders have increased the power of his branch of government by enormous margins.  He even went as far as to say,

“We’re not just going to be waiting for legislation, I’ve got a pen and I’ve got a phone… and I can use that pen to sign executive orders and take executive actions and administrative actions.”

He threatened and then followed through with those threats to pass new rules and legislation that, in many people’s eyes, should have been left to the legislative branch of government.

We need to stop here and look at another presidential power—the executive memorandum.  The memorandum carries with it the same power as an executive order, but is not required to be published.  President Obama used a memorandum 644 times, and so far, President Trump has used it 12 times.

A few examples of what many consider to be executive overreach by the Obama administration include: picking which parts of the Affordable Care Act he would implement and enforce, legalizing millions of illegal immigrants (later rejected by the courts), raising minimum wage of federal employees, signing unilateral nuclear treaty with Iran without Senate ratification, unilateral gun control regulations, and many, many more.

In President Trump’s tenure to date, we have seen him sign 23 executive orders (as of April 1, 2017), so he is not shying away from using his pen, as the precedent has been set by his predecessors.  Many of those orders have been used to roll back orders given under President Obama because, unlike laws passed by Congress, executive orders can be repealed with the stroke of the president’s pen.  President Obama did just that with many orders signed by President Bush.  Some have cried foul on President Trump’s orders regarding immigration, travel, the environment, etc., but no one seems to have gotten to the root of the problem here—too much power in one branch of government.  President Obama’s overreach was OK with many in the media and general public because it aligned with their agenda, but President Trump’s overreach is all of a sudden wrong because it does not fit their talking points.

The moral of the story is that government needs to get back to the original process where Congress makes the laws, the president signs the laws, and the courts interpret the laws.  The president should not be making laws and, on the same token, should not be choosing which laws he wants to enforce as part of his constitutional duties.

The problem with putting power back into the appropriate hands is that, once taken, power is hard to regain again.  Congress needs to reclaim their power before the overreach gets more out of hand.  Democrats and Republicans should be worried about the amount of power one individual has taken up himself, no matter the party in office.

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