Dakota Beacon

Our American government is essentially impervious to debasement but it isn’t perfect. There are duplicitous ways in which our tripartite government might be undermined. One way is through the use of presidential Executive Orders (EOs) in the face of congressional roadblocks. This is not conspiratorial. It’s a fact. The president can adapt existing laws to advance his own understanding of how to legally manage and secure America.

Between 1789 and 1907 US presidents issued a total of 2,400 EOs. Since 1908 more than 13,700 EOs have been issued – Bill Clinton 364, George W. Bush 291, Barack Obama 276, and Donald Trump 92. Compare this with FDR’s 3,721 (from The American Presidency Project). Some very notable EOs were used for better or for worse. They promulgated Abraham Lincoln’s Emancipation Proclamation. They were used by FDR to inter Japanese Americans in camps during WWII. EOs were used by Harry Truman to integrate the US Armed Forces and by Eisenhower to desegregate public schools.

According to the Federal Register, “Executive orders are official documents numbered consecutively through which the President of the United States manages the operation of the United States.” EOs appear in the daily Federal Register as each EO is signed by the president and received by the Office of the Federal Register.

An Executive Order (EO) is a rule or regulation issued by the President that has the effect of law. No specific provision of the U.S. Constitution nor any federal statute allow for Presidential EOs. However, custom, precedent, and broad Constitutional interpretation establish the basis for Presidential EOs.

Although there is no direct Constitutional provision for EOs, there is a vague grant through the executive power clauses (Art. II, Sec. 1, Clause 1 and Art. II, Sec. 3, Clause 5) of the US Constitution. They help executive branch office holders carry out their delegated duties and normal operations. EOs have the full force of law. It is when the effect of the EOs move outside the executive branch that they become a problem. Just like laws, EOs are subject to judicial review. The Supreme Court or lower federal courts can nullify or cancel an EO.

In other words, the intent of EOs is to implement provisions of the US Constitution along with existing treaties and statutes. EOs typically apply to departments, agencies, and personnel of the executive branch.

In addition to EOs there are Executive Memoranda and Executive Proclamations. National Security Directives and Homeland Security Directives are a few examples. Obama used EOs and other directives to advance his energy, environmental, and fiscal objectives.

For example, the Obama administration effectively set aside portions of the 1996 welfare reform act. Under a February 28, 2011 Presidential Memorandum, Health and Human Services and the Department of Labor were authorized to waive the work requirements for welfare, a central facet of the 1996 law, without congressional approval. HHS implemented its decision on July 12, 2012.

In a reverse manner, because Congress failed to pass the “Dream Act” on immigration, Obama used an EO to grant amnesty to a million children of Hispanic parents illegally in the US.

EOs may remain in effect from one administration to the next unless changed. President Obama used 137 EOs to modify or eliminate over 900 EOs from previous administrations by amending or rescinding them. Some EOs went as far back as the Eisenhower administration. All accumulated EOs establish powers that President Trump can use to cobble together his Presidency to “Make America Great Again.”

A crisis or national emergency presents a special situation. At these times it is appropriate that the federal government speak with one voice and that voice is the President’s. A declaration of war by Congress is an example. When Congress declares war, it cedes vast power and authority to the President. Upon a declaration of war, the President rules America in a total sense through the use of EOs. These EOs are already in place and need only the President’s signature upon declaration of war. Appropriately, Congress is hesitant to declare war whimsically.

On August 31, 2016 in Phoenix President Trump identified the root of a national emergency. “Whether it is dangerous material being smuggled across the border, terrorists entering on visas or Americans losing their jobs to foreign workers, these are the problems we must focus on fixing….” Congress did not take action. On January 8, 2019 the problem of illegal immigration had become so bad Trump stated, “Thousands of Americans have been brutally killed by those who illegally entered our country and thousands more lives will be lost if we don’t act right now.”

If Congress does not act in a national emergency, and the Justice Department takes no action, the president could correctly address that emergency through EOs. Control over the US borders preserving America’s integrity as a sovereign nation free from a variety of threats may well be within President Trump’s purview. It can be easily argued that an endless tide of illegal immigrants flowing into the US across non-secured borders presents a national emergency. Perceived EO abuse can always be challenged in court. In the end, the courts may yet have to sort this out.

The Founding Fathers did not craft the US Constitution designating an executive with the power of a king. By the same token, they had every intension of securing America’s destiny through sound executive management.

Dennis M. Patrick can be contacted at (JavaScript must be enabled to view this email address).