The checks and balances of executive orders
Q: Before he was elected, President Trump criticized President Obama for signing executive orders, saying during one speech I remember, “Executive orders sort of came about more recently. Nobody ever heard of an executive order. Then all of a sudden Obama, because he couldn’t get anybody to agree with him, starts signing them like they’re butter. I want to do away with executive orders for the most part.” Now the media gives me the impression that Trump signs an executive order almost every day. Is that accurate?
Fred Malone, of New Athens
Q: Could you do a piece on executive orders? When were they started? Are they law or just a president’s wish? If they’re law, don’t they make the president a dictator?
Tom Hurlburt, of St. Jacob
A: At the risk of drawing a POTUS tweetstorm for spreading fake news, allow me without editorial comment to offer the latest accurate numbers.
As of May 9, President Trump has signed 24 executive orders during his first 110 days in office, according to the American Presidency Project at the University of California Santa Barbara. If he continues at this rate, he would be on pace to sign 79 orders during his first year in office. By comparison, Bill Clinton averaged 46 a year, George W. Bush 36 and Barack Obama 35 during their two terms.
Signing as many as four a day (Feb. 9), Trump argues that they are necessary to undo what he has called the damage done by Obama’s executive orders — for example, rescinding regulations that “unduly burden the development of domestic energy resources.” Others have ranged from ordering studies to identify trade abuses and review tax regulations to identifying measures to spur agricultural growth. If you’re interested, you can read executive orders dating back to 1828 at www.presidency.ucsb.edu/executive_orders.php.
To further defend his actions, the White House argues that while Obama’s orders often ran around Congress to expand the size and scope of the federal government, Trump is using his authority to reduce and restrain the bureaucracy. Besides, Trump further contends, they’re needed to more quickly accomplish the things that voters elected him to do. Critics charge that Trump is so accustomed to being a corporate owner and executive that he still thinks he can do things by fiat rather than working with government’s true lawmaking branch.
You can decide that argument for yourself, but as for when they started, Trump, I say reluctantly, flunks history. Executive orders have been around since the father of our country, George Washington, gave birth to eight of them during his eight-year tenure some 230 years ago. The very first was a proclamation Washington signed on April 22, 1793, ordering federal officers to prosecute any citizen interfering with the war between England and France. He did it because Congress was out of session at the time.
Ever since, presidents have argued that they are empowered by the U.S. Constitution to issue them. No, you won’t find a specific provision that specifically provides for them. Instead, they point to this one phrase in Section 3 of Article II: “(The president) shall take care that the laws be faithfully executed ...”
Presidents say executive orders sometimes are necessary to execute the laws that Congress has passed. Like the establishment of the Federal Emergency Management Agency (E.O. 12148) under Jimmy Carter, such orders allow the president’s officers to implement provisions of various laws as well as the normal operation of the federal government.
They took a while to gain popularity. The first six presidents issued a total of 18. No president issued more than 100 until Ulysses S. Grant put out 217 in his eight years. But ever since Theodore Roosevelt signed 1,081 during his seven-plus years at the start of the 20th century, some would say it has been Katy-bar-the-door. To try to get the country out of the Great Depression, Theodore’s cousin Franklin perhaps came close to developing writer’s cramp as he signed 3,721, which came close to an average of one a day throughout his 12-year tenure.
Yet in all that time, only two such orders have been overturned so far. When Harry Truman issue E.O. 10340 to place the nation’s steel mills under federal control, the Supreme Court ruled it invalid because Truman was attempting to make law rather than clarify or further an existing law. Since then, presidents usually cite which existing laws they are acting under when issuing such orders. Then, in 1995, an order by Bill Clinton went down in flames when he tried to prevent the federal government from contracting with companies that had strikebreakers on the payroll.
Even so, some orders that were allowed to stand are now seen by many as shameful. After the attack on Pearl Harbor, FDR issued E.O. 9066, which denied Japanese citizens the right of habeas corpus and took their homes merely because of their ancestry. Truman later issued E.O. 9835, the so-called Loyalty Order that may have helped fuel Sen. Joseph McCarthy’s Communist witch hunts. On the other hand, an executive order by Truman banned discrimination in the armed services while another by Richard Nixon extended those rights to police, fire services and U.S. Postal Service.
Now, of course, at least portions of Trump’s order banning immigration from several Middle East countries have been put on hold as unconstitutional. We’ll see what happens, but for now executive orders continue to be both a legal and historic presidential power.
Who is the only president in U.S. history who never issued an executive order?
Answer to Wednesday’s trivia: Don’t let the name fool you. The deepest salt lake in the world is the Dead Sea in Israel, which reaches a maximum depth of 997 feet. That makes the Great Salt Lake in Utah, which reached a maximum depth of 45 feet in 1987, look like a puddle. The Dead Sea is about 30 miles long and nine miles wide and is nearly 10 times saltier than the ocean. You won’t find the name in the Bible, though, where it is variously called the Salt Sea (Genesis 14:3), the Sea of the Arabah (Deuteronomy 3:17) and the Eastern Sea (Ezekiel 47:18). Usually averaging 35 percent salt, the Dead Sea gained its popular name because only a few bacteria and fungi can survive the harsh conditions.