The increased use of executive orders, as well as other presidential directives, is a fundamental issue in modern-day American governance. The U.S constitution does not give any person an ‘executive pen’, which exclusively gives a particular institute or person the authority to write or pass a biased policy into law. Despite this lack of constitutional authority, the current political field has seen an increase in the use of presidential directives, particularly executive orders to promulgate legislation to support public policy initiatives in a process that circumvents the prescribed law-making body (the U.S Congress.) Arguably, it is foolhardy to overlook the inherent risks presented by this current trend because of the support of the individual currently occupying the presidential seat. Additionally, the continuation of such a trend may set a dangerous trend in the future when the U.S may be led by individuals using executive powers. As such, there is a clear need for additional public awareness as well as finding ways to hold the president accountable when using powers awarded to his or her office.
Debates over the nature of executive powers are not new. Since the set up the foundations of the American liberty by developing the U.S constitution congressional representatives, heads of state, scholars, and citizens have set out to define the boundaries of the executive powers. At first, executive orders and other presidential directives, were used principally as administrative tools. As explained by Cooper (2014), originally, executive orders were informal and often uncontroversial as they fell in line with the founding farmers’ vision of a tripartite government. That is, these orders relied on the separation of power to secure the nation’s liberty the first twenty-four presidents issued 1262 executive orders on the other hand the last nineteen have issues over 12,000 orders. Nevertheless, these statistics are only part of the problems that have arisen in the use of executive orders. As explained by Goodnow (2018), the U.S government has grown exponentially and so has the need for elected leaders to seek federal solutions to state as well as personal problems through executive orders in an unconstitutional manner.
The Importance of Separation of Power
There exists a plethora of literature from the 1770s confirming the significance of the separation of power by the U.S founding fathers. According to Waldo (2017), it was imperative to both the delegates at the Convention and the states endorsing the Constitution not to allow a single branch of government to hold the all the responsibility of creating and executing national orders. The division of authority was seen as necessary to keep “public security” as well as to avert arbitrary and dictatorial rule. The placement of legislative powers in the hands of few individuals needed multiple safeguards in order to prevent the government from behaving with all the violence of an oppressor as seen in the previous English Monarch that had been deposed by the founding fathers. “There can be no liberty where the legislative, as well as executive powers, are united in the same person or body of magistrates” (Bergman, 1990, p.11). In any case, in such an instance, “apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner” (Bergman, 1990, p.12). The increased use of executive orders undercuts the farmers wish to hold the government accountable in the destruction of liberties. An example of such tyrannical executive orders can be highlighted in the American intelligence community that has been authorized almost exclusively by the executive directive in conducting questionable actions such as spying on U.S citizens’ digital communications, from listening to calls to reading text messages and emails. As explained by Shull (2017), The Central Intelligence Agency (CIA), established by the 1947 National Security Act, has been controlled by presidential directives.
Delegation of Legislative Authority
The United States Constitution grants authority to the legislative as well as executive branches by indicating “all legislative Powers herein granted shall be vested in a Congress of the United States”. Additionally “the executive Power shall be vested in a President of the United States of America” (Goodnow, 2018). From the extracted texts, it is clear that the language of the two awards of power differs significantly. Article I states that “all legislative powers herein granted,” on the other hand, Article II stated that “the executive Power shall be vested”. The extensive use of executive powers leads to two major inquiries; firstly, to what extent did the founding fathers intend the grant of legislative authority to be detached from the executive power? Secondly, to what point did they propose the executive to take part in the lawmaking practice to take up the role of exchequer on the legislative branch? According to Waldo (2017), the founding Framers created new presidential powers built upon the traditional, extensive notions of executive power that existed during the English monarchy regime. However, these regulations limited the head of state’s powers. Conceivably, the Americans assumed the presence of a number of authorities such as lawmaking ability in the executive would limit presidential powers. However, other aspects dispute the impression that the founding Framers assumed, thus leading to unremunerated grants of power to the executive. For instance, the use of executive orders was only granted to the head of state once many of the customary royal prerogatives had been vested to Congress. It can be argued that the Founders did not want to integrate traditional philosophies of a “royal” executive into the Constitution. However, they did not consider what is seen today whereby presidents write and execute executive orders unchallenged. From the information presented, it is clear that the Founders continually proclaimed the necessity for the people to protect themselves from the exercise of unimpeded legislative power. However, the continued misuse of executive orders disrupts the delegation of legislative authority, thus undercutting democracy.
Over the last two decades, because of the information the American society is exposed to, there has been a request for reforms in limiting the presidential directives offered in the U.S constitution within the acceptable boundaries. The use of executive orders has changed with time from its initiation by the founding fathers. Presidential declarations were used before as tools of administration that cemented the significance of the separation of powers. Today, these orders have been used to circumvent the authorities of Congress in the law-making process. The increased use of executive orders gives the head of state the authority to pass personal or party related policies that do not stand for the best interest of many but the few who are in support of the presidential pen. The U.S constitution is all-inclusive, in that, it offers equality, which constitutes a perfect but not pure democracy. The use of executive powers undercuts the liberties of awarding a single person with free autonomy to act as a tyrant. Secondly, the use of executive orders undermines the directive of derivative legislative authority. The Founding farmers, through Article 1 and 2, chose to separate the powers of authority by granting the president with power but vesting the constitutional authority to congress. This made sure that all liberties of the citizens, the United States democracy, was well protected from a royal executive. During the times of English rule in the United States, the monarchy made sure that a select few individuals had the power to rule the land, thus oppression was always a part of leadership. When writing the American Constitution, the Founding Farmers wished to reduce the powers of a royal executive, thus splitting legislative authorities in two houses of congresspersons. The use of presidential declarations undermines the farmer’s views, thus reducing the liberties of democracy.
Bergman, M. P. (1990). Montesquieu’s Theory of Government and the Framing of the American Constitution. Pepp. L. Rev., 18, 1.
Cooper, P. J. (2014). By order of the president: The use and abuse of executive direct action. University Press of Kansas.
Goodnow, F. J. (2018). Politics and administration: A study in government. Routledge.
Shull, S. A. (2017). A kinder, gentler racism?: the Reagan-Bush civil rights legacy. Routledge.
Waldo, D. (2017). The administrative state: A study of the political theory of American public administration. Routledge.