The specifics of executive orders issued this week by Donald Trump will be hashed out by the legal system and in the court of public opinion.
But regardless of the details surrounding birthright citizenship or climate policy or pardons for Jan. 6 criminals, the abuse of executive orders demands scrutiny. As The Columbian wrote editorially in 2021: “Executive orders have come to replace the act of legislating, giving excessive power to the executive branch and reflecting how Congress has abdicated its duty.”
That was in the early days of the Joe Biden presidency, but the words were applicable during the first Trump administration and during Barack Obama’s presidency, as well. The observation has been reinforced in recent days, with the second Trump inauguration providing another jolt to the nation’s political philosophy.
New administrations typically result in policy changes, but the vast use of executive orders to define those policies creates pendulum swings that lead to instability and contribute to an imperial presidency.
An executive order is a directive from the president that has power equivalent to a federal law. The power has been used by every American president except for William Henry Harrison (who was in office for 31 days), but it increasingly is being used to define significant policy changes.
The first executive order, issued by George Washington on June 8, 1789, called for executive department heads to provide “a full precise, and distinct general idea of the affairs of the United States” they oversaw. Now, the orders are used to dictate many decisions that should fall under the purview of Congress.
One recent example involves the Paris Climate Accords, a series of goals set by the 2015 United Nations Climate Change Conference during the Obama administration. In 2020, Trump withdrew the United States from the agreement; in 2021, Biden had the nation rejoin the accord; this week, Trump again withdrew the nation’s commitment.
Instead of relying on the whims of the president, the United States’ commitment to a vast treaty that includes nearly 200 nations should be determined by Congress. As Article II, Section 2, Clause 2 of the U.S. Constitution states: “(The president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
Congress, however, has gradually abdicated that authority, providing the executive branch with power that is not defined by the Constitution.
In recent decades, members of Congress also have abandoned their authority for declaring war, writing the federal budget and issuing tariffs. As columnist George Will of The Washington Post wrote in 2021: “The members who linger in a curdled Congress are the least admirable: They don’t care that they don’t matter.”
That is dangerous under any circumstance. It is particularly disconcerting now, with Trump returning to office.
During his first term, Trump demonstrated little understanding of the checks and balances defined by the Founding Fathers. Now, he has been emboldened by a Supreme Court that increased presidential power under the loose definition of “official acts” and by a Republican Party that caters to his most outlandish impulses.
But the imperial presidency is not an invention of modern Republicans; it is a reality that has undermined American democracy during the reign of presidents from both parties, posing a threat regardless of who controls the White House.