A couple of years ago, after President Trump backed out of the Paris Climate Treaty and the Iran Nuclear Deal, I wrote a column for “Historically Speaking,” justifying his actions because those deals had been made by executive orders so could legally be overturned by executive order. At the same time, I argued that modern executive orders such as these went beyond the authority of the president and should be handled by Congress. If you want more proof of the folly of executive orders, on the first day of President Biden’s term, he signed into effect 15 new executive orders, one of which was to reenter the Paris Climate Deal. As with my first article, I am not arguing that we should or should not join with the climate agreement. My argument is about the process. The very fact that Obama can join it, Trump pull us out, then Biden rejoin – all done by one man and the stroke of his pen – goes beyond the scope of power the founders envisioned.
Last time, I cited the Constitution as an example to show how only Congress is authorized to make laws and approve of all treaties. The Paris Accords and the Iran deal are both treaties with foreign nations and hence should fall under the powers of Congress, yet they were not. There is nowhere in the Constitution that explicitly gives presidents power of executive orders; instead, the power is implied from Article II.
Not all executive orders are the same; some are perfectly legitimate. The Supreme Court has said a president can use the power if given authority by a clause in the Constitution or if Congress delegates it. All presidents have issued orders, starting with George Washington. Washington’s first order was that all department heads report to him what was happening in their departments. As head of the Executive Branch as prescribed by the Constitution, Washington had the right to request reports from his departments.
As Commander and Chief, presidents can make decisions about the military. Lincoln’s Emancipation Proclamation was an executive order. It was done as a military order to hurt the South by taking away their work force. Agree with the idea or not, Biden’s use of an executive order to allow transgenders into the military is legitimate. It falls under his military authority.
Another legitimate use of executive orders is in the enforcement of laws, another duty prescribed to the president. After the Brown v. Board of Education ruling, President Eisenhower issued an order to desegregate schools.
Finally, though not in the Constitution, allowing presidents to act in time of emergency seems legitimate, but only for the duration of the crisis. FDR, who guided the nation through two of the hardest episodes in our history – the Great Depression and WWII, used orders to create the Works Progress Administration and later the Manhattan Project. Under this thinking, any of Biden’s executive orders issued to stop COVID have some validity.
The second part of the Supreme Court’s ruling of when Congress delegates is more problematic. Who’s at fault is too long for this article but starting in the Progressive Age and expanded during FDR and the Cold War, presidents little by little have taken away (and Congress has let them) the primary task of Congress which is to make laws. Whereas orders were meant for executing presidential duties, many are now used to bypass Congress to legislate. Again, I am not arguing for or against any of Biden’s orders, but his executive orders on immigration and transgendered athletes are establishing law and should be dealt with by Congress. It has been argued to me that presidents need to act on these issues because either Congress refuses to or moves too slowly. While I understand, the Constitution does not grant the president legislative powers in cases where the Congress is too slow, refuses to act, or cannot get enough votes to pass its legislation.
When the Founders gathered in Pennsylvania to create our governing document, their most difficult task was creating an executive branch. The other two branches were easy by comparison, but America had just broken away from a monarch and was not in a hurry to recreate a new one. In fact, the first national government, The Articles of Confederation, did not even have an executive branch.
When creating the Executive Branch, the man who inspired the Founders’ thinking was the French philosopher Montesquieu, who argued the idea of “trias politica” or “separation of powers.” The Founders were scared of creating a strong president, but what Montesquieu argued, and the Founders understood, was that in order to keep the people safe from a tyrannical government the Executive Branch had to be as powerful as the Legislative and Judicial Branches. If not, the Legislative Branch had the power to become tyrannical. Therefore, the Executive Branch had to be strong.
However, none of the Founders ever imagined what the President has become in the 21st Century. No matter if you support or condemn Biden’s orders, which he now holds the record for in his first days, the Founders never envisioned so much raw power in the hands of just one person. It goes against everything they feared and everything Montesquieu taught. Biden needs to be careful. For a man who claimed Trump was a tyrant, Biden has more than doubled the number of Trump’s executive orders for the same amount of time in office.
Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.