Deeper look into executive orders

If Alexander Hamilton were alive, he'd probably be cheerleading. Hamilton argued not for an even balance of powers among the three branches, but for a stronger executive. In that sense I am not a Hamiltonian; I cringe and shudder when one branch - any branch - tries to dominate.

So while our current president is a skilled orator and should probably use that more to his advantage, his "Congress had better do something, or I will" crux of the State of the Union address was disturbing.

He meant executive orders (and rulemaking) - an American president's Excalibur.

When President Bush (the second) stepped them up I wrote, equally unhappy, comparing his use of EOs to his predecessors. Was he the EO heavy-hitter? Not by a long shot, and neither is President Obama, relatively speaking. That was FDR, who in fairness was coping with World War II. The least in a four-year presidency was Mr. Bush-senior at 166. By comparison, President Obama's 167 in five years isn't much (yet), but numbers never tell a whole story.

Nevertheless here they are, by total and averaged by years in office. This information is available from the disposition tables at Archives.gov:

FDR: 3,522 (287)

Truman: 907 (117)

Eisenhower: 484 (60)

JFK: 214 (76)

LBJ: 325 (62)

Nixon: 346 (63)

Ford: 169 (67)

Carter: 320 (80)

Reagan: 381 (48)

G.H.W. Bush: 166 (41)

Clinton: 364 (45)

G.W. Bush: 291 (36)

Obama: 167 so far (33)

Looking at this chart perhaps my angst seems premature; over time the parenthetical rate of executive orders seems to be plummeting. Yet I remain anxious. It isn't just the numbers, but the choice of subject that matters. Many EOs are simply administrative or mundane, some are non-controversial (medals, Peace Corps, committees), and others provoke ire (labor relations, finance).

However, use of, or threats to use, an EO (or executive agency rulemaking) to tackle issues such as minimum wage, immigration, and healthcare seem to trump the traditional purview of Congress. It's certainly happened before; a similarly frustrated President Reagan made Medicare changes that way, among others. Such uses should make a constitutional scholar, including former con-law-prof-turned-President Obama, highly uncomfortable.

Then again what does a president do when faced with persistent legislative gridlock, infighting, vengeful maneuvering, and refusals to act, too often bordering on childish behavior? Historically, they use executive orders. Reading the Federalist Papers this is what some of the framers predicted among the branches - an occasional need to "parent." Then again, concentrated power in an executive is frighteningly imperial.

Is this bad for the country? Is it better or worse than the effects of no action on issues vital to the citizenry? Which issues are vital? All three answers vary by personal and temporal perspective.

Certainly the sort of wide-ranging issues which are historically the subject of federal legislation should be put to a vote by Article II-elected representatives. Politically, however, important issues sometimes gain momentum - even legislative momentum - by unilateral executive actions.

Perhaps the looming threat of executive order is behind Congressional use of a resurrected rule to force movement on bills (story in Monday's Press). President Kennedy, some say, got shot over his decisive attempts to move civil rights in America forward, perhaps kicking and screaming but in retrospect, so very necessary. His executive orders (e.g., nondiscrimination in housing and the showdown over university enrollment in Alabama), seen as strong-arming and overreaching at the time, were precursors to historic civil rights legislation and long-overdue societal growth.

Also, executive orders are only effective as long as a current executive permits them to remain in force. The next president could revoke, amend, or supersede them, and in certain cases Congress may effectively overrule with legislation or the Supreme Court, with legal interpretation if petitioned by the right party.

So some checks and balances remain. Is that enough? Is presidential action more justified by a Sisyphean Congress? Our children will judge, as we have our predecessors.

Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at [email protected].