There are plenty of examples of an out-of-control
Executive Branch, but here are our top four! (click on each)
Our system of checks and balances has gotten completely out of whack.
Checks and balances are fundamental to our democracy and rule of law. The United States Constitution is crystal clear: The Legislative Branch (Article 1), the Executive Branch (Article 2), and the Judicial Branch (Article 3) each have separate and independent powers, and each branch is given equal weight. There is ZERO question about this.
Except that’s not how it’s currently playing out. We have an increasingly political judiciary, a power-hungry executive branch, and an impotent Congress that won’t do a damn thing about either.
Please believe us when we say this is an incredibly dangerous path we are on, America. We cannot be like that frog in the pot who, because the temperature is raised ever so slowly, doesn’t realize he is getting boiled to death until it’s too late. A United States without healthy checks and balances is not somewhere you want to be. We need to get this back under control. Right now.
Let’s start with the Executive Branch. Although Donald Trump pushed executive power to unfathomable levels, the Lone Wolf mentality of the Executive Branch has been inappropriately increasing for decades.
One mechanism that presidents use to abuse their power is the executive order. Executive orders were designed as a way for presidents to establish directives, communicate priorities, and provide guidance within the bounds of existing law. A great example of the true intention of the executive order is the very first one, issued in 1789 by President George Washington to those in charge of the federal departments. In part, his order said:
I am desirous of employing myself in obtaining an acquaintance with the real situation of the several great Departments, at the period of my acceding to the administration of the general Government. For this purpose, I wish to receive in writing such a clear account of the Department, at the head of which you have been for some years past, as may be sufficient (without overburdening or confusing the mind which has very many objects to claim its attention at the same instant) to impress me with a full, precise, and distinct general idea of the affairs of the United States, so far as they are comprehended.
In other words, President Washington used the executive order kind of like a management tool, which makes sense because the U.S. Constitution says that “the executive power shall be vested in a President of the United States of America” and that s/he may “require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.”
Now however, executive orders are being used as a substitute for actually having to build consensus in Congress to legislate. This approach is somewhat understandable given our two-party system has severely limited the ability to get things done, but the fact remains that the way executive orders are being used is straight-up unconstitutional.
It’s true that, since George Washington’s time, Congress has given the president a certain degree of additional discretionary power, but the U.S. Supreme Court has also ruled that every executive order must adhere to Article II and/or by statutes that Congress has already legislated. In other words, Congress still makes laws, not the president.
A great example of presidential overreach by executive order is President Abraham Lincoln’s Proclamation 95 (a.k.a. the Emancipation Proclamation). This 1862 proclamation was an executive order/presidential proclamation that changed the legal status of over 3.5 million slaves. To all of us, this remains the most brave, noble and powerful action in American history.
However, since the Emancipation Proclamation essentially overturned the Fugitive Slave Act of 1850 — a law that forced slaves to be returned to their “owner” if captured — it fell outside Constitutional presidential action. Of course, no one recognized this better than President Lincoln, who quickly followed the Emancipation Proclamation up with a demand that southern states include abolition in their plans for Reconstruction, as well as a hard push for the passage of the Thirteenth Amendment — which finally ended slavery for good.
President Lincoln’s actions after the Emancipation Proclamation are the most instructive when it comes to executive orders. In their essence, executive orders are nothing more than theatre because they are temporary. They provide a way for presidents to look like they are doing something — and they actually may be for three or four years — but in the end they achieve nothing because they can simply be rescinded by the next president.
Imagine if Lincoln had just stopped after he made his initial proclamation by executive order. Andrew Johnson was the next president. Andrew Johnson, one of the most hideous, racist presidents in American history. Andrew Johnson who opposed Reconstruction, the Civil Rights Act of 1866, and the Fourteenth Amendment.
Imagine if President Lincoln had just gotten lazy and simply left the freedom and protection of enslaved African Americans to the fate of an executive order. Imagine if Andrew Johnson could have just repealed the Emancipation Proclamation? …which under the rules he most certainly could have.
This is a perfect example of why it’s worth the time and effort to actually pass legislation. It’s harder, no doubt. But it’s lasting.
Beyond the constitutionality of executive orders, one of the most damaging things they do is create chaos and uncertainty. Take DACA, for example. The Deferred Action for Childhood Arrivals (DACA) is a policy that allows kids who are not U.S. citizens but were brought here as children to receive a two-year period of deferred action from deportation. They also may be eligible for a U.S. work permit. President Obama established DACA through an Executive Branch memorandum on June 15, 2012.
The kids protected by DACA — also referred to as “Dreamers” — were ecstatic and started to make plans for their unencumbered future in the United States. That is, until five years later when Donald Trump announced plans to phase DACA out. Four years after that, President Biden issued an executive order reinstating DACA.
Although Dreamers are surely relieved about DACA’s revival, their lives are still subject to political whiplash. Although the prevailing sentiment favors them today, they continue to live in a perpetual state of limbo about tomorrow.
DACA is just one example. Although Democrats threw a fit when Donald Trump used executive orders to move his agenda forward, naturally their side did the exact same thing the minute they resumed power.
Within hours of taking the oath of office, President Biden had already signed 15 executive orders and two additional actions to rescind Trump-era policies, including ones regarding immigration, the pandemic response, and climate change. Within 16 days, Biden had signed three times the number of executive orders than past presidents had at the same point in their presidencies.
Among other things, he ended the bans on Muslim travel and transgender military service; revoked the abortion “global gag rule,” the “1776 Commission,” and the permit for the Keystone XL pipeline; plus stopped construction on “The Wall.” He also rejoined the Paris Climate Agreement and reiterated U.S. support for the World Health Organization.
The most destructive consequence of an overly empowered Executive Branch is that, as the power of the presidency has grown, the power of Congress has equally diminished. Worse, Congress just sits there like lap dogs and lets it happen.
For example, the U.S. Constitution gives Congress the power to protect civilian control of the military by setting forth congressional war powers (Article I, Section 8). This is critical not only to protect our rule of law, but also to ensure that the United States has solid national security objectives and a smart, thoughtful foreign policy strategy. Most importantly, our troops must be certain that the dangerous missions we ask them to engage in are fully warranted and vetted.
However, for almost two decades, Congress has avoided tough votes on military action, which has essentially given the U.S. president unlimited power to unilaterally make military decisions…which is straight-up unconstitutional. < Read more about this in the Authorization for Use of Military Force (AUMF) section, here. >
Another one of Congress’ main responsibilities is inquiry and oversight (Article I, Section 8), a congressional responsibility that Donald Trump felt empowered to completely ignore… which is also straight up unconstitutional.
The U.S. Supreme Court has already ruled on this: “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”
This high court ruling is in addition to a judgement by the U.S. Court of Appeals for the District of Columbia Circuit nineteen years earlier which found “a legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.”
As the Executive Branch’s power has inflated, so too has the assertion of executive privilege. Among many other things, Donald Trump invoked executive privilege to try to block Congress from receiving the entire Mueller Report and other important documents related to the investigation and to block key witnesses from testifying before Congress.
In other words, he invoked executive privilege to try to stop Congress from conducting their constitutionally mandated oversight responsibilities.
This is absolutely outrageous. The term executive privilege is not even in the U.S. Constitution. The U.S. Supreme Court did finally address this in the Richard Nixon case in 1974, acknowledging “the President’s need for complete candor and objectivity from advisers.” However, in that instance the Court was speaking specifically to judicial subpoenas.
In any event, the closest comparison we have to Donald Trump’s behavior on this point is, in fact, Nixon, who infamously tried to invoke executive privilege in order to not turn over the infamous White House tapes. In the same case referenced above, the Court unanimously ruled against him.
Do we need any more examples? What the heck, we'll give you a couple more.
Article I, Section 9, Clause 7 of the U.S. Constitution says: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Which means Congress, and Congress alone, has control of spending policy. The Constitution is pretty clear, right?
In the Federalist Papers: No. 58 (uh oh! we're bringing out the big guns!), James Madison called this “the power of the purse,” as in “this power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”
Donald Trump tried to circumvent this mandate a thousand different ways although, to be fair, so did practically every president before him.
For example, President Obama did when he paid for cost-sharing subsidies after the Affordable Care Act passed, while Donald Trump decided to reallocate $44 million from the Federal Emergency Management Agency (FEMA) to bolster Covid-19 unemployment benefits — which may have actually been a sweet gesture if it weren’t completely unconstitutional.
By far, the most disturbing Donald Trump attempt was, naturally, tied to his beloved border wall. On February 15, 2019, Donald Trump declared a “national emergency” at the U.S-Mexico border, which gave him more authority to reallocate taxpayer money from other accounts to fund more than 230 miles of barriers along the U.S.-Mexico border.
At the risk of sounding like a broken record, yes, this too is blatantly STRAIGHT-UP UNCONSTITUTIONAL.
At the time, there was no national emergency at the border and certainly not one that could have waited for an entire border wall to be constructed. Were there issues at the border that we needed to address? Certainly. Were they national emergencies? Certainly not.
To be fair, one reason this gets a little confusing is the National Emergencies Act passed by Congress in 1976, which significantly weakens Article 1, Section 9, Clause 7. This legislation allows the president to essentially declare a national emergency at his or her discretion. However, the Act offers no specific definition of “emergency” — which is a recipe for total disaster.
Although Congress can reverse an emergency declaration by passing a resolution through both Houses, this specific example proves that is not an effective counterbalance. Even if both Houses pass a resolution, presidents can simply veto it.
A better way would be to pass legislation that automatically terminates an emergency declaration within 30 days unless Congress votes to extend the order and also requires strong reporting requirements of the president.