Stroke of the pen, law of the land, kinda cool: Executive orders and the American Presidency

In his first couple of weeks in office, President Donald Trump has taken a lot of criticism for his executive orders, both the content and the number. He has used his pen to address the Affordable Care Act, immigration, the U.S.-Mexican border wall, and government regulation—all issues upon which he campaigned. Trump is certainly not acting in a manner outside the norm in his use of this executive function. The use of such orders has been around since George Washington, but like much else since the 18th century, this use of power has grown.

Nowhere in the United States Constitution is the president granted the authority to use the executive order. As the executive in charge of administering national laws, all presidents have written them to direct their agencies in “faithful execution.” A law granting the president to issue a specific order must be cited with the order.

The executive order is closely tied to the presidential memorandum and proclamation. The distinction is typically that an executive order sets government-wide policy, while the memorandum directs a specific department secretary to take a specific action and proclamation tends to be ceremonial (e.g. Red Ribbon Week), though Abraham Lincoln once used a proclamation to famous effect.

In 1907, the Department of State began numbering the executive orders, starting with one issued by President Lincoln in 1862. In 1936, the Federal Register Act created a more stringent process for documenting and number the orders. Still, orders pop up that have gone undocumented or unnumbered, in which case they are given a letter with an existing order number.

The American Presidency Project at the University of California – Santa Barbara has posted a table showing the number of orders by president. George Washington did in fact use the executive order, but sparingly. In fact, no president averaged more than one executive order per year until our seventh president, Andrew Jackson, wrote two per year. Martin Van Buren followed him, issuing 12 in his lone term in office. John Tyler averaged four per year. And so the use of the executive order climbed. But compared to today, this looks like the presidential equivalent of baseball’s dead ball era before Babe Ruth burst onto the scene.

So who was the executive order issuing Babe Ruth? It appears to be someone who shared Ruth’s penchant for “carrying a big stick.”

The Civil War and Reconstruction period saw a major rise in the use of the order. Lincoln issued 48 in his four years in office from 1861-65, an average of 12 per year. Franklin Pierce, from 1853-1857, had averaged nine. Following Lincoln, Andrew Johnson wrote 79 in just under four years in office, dramatically increasing the use of the power.

These figures steadily rose until William McKinley was averaging 41 per year. In 1901, his assassination vaulted Theodore Roosevelt into the big chair. A man of action, Roosevelt used the executive order to push his agenda. Whereas no one had ever written more than 217 (Ulysses Grant), Roosevelt issued 1,081 in his 7.5 years in office. Babe Ruth was the man who built Yankee Stadium and Roosevelt was the man who built the West Wing. Fairly symbolic, I believe.

From that point through World War II, the executive order increased in frequency. Woodrow Wilson issued over 1800. Even “do-nothing” President Calvin Coolidge issued 1200 in five and half years in office.

Franklin Roosevelt was elected president in 1932 during the Great Depression. A tool he used frequently to attempt to curb the financial collapse was the executive order. He remained in office for 12 years and wrote 3721, an average of 307 per year. Since that time, no president has come close. Using the baseball analogy, FDR was the steroid era.

Truman issued over 100 per year, but no president since has averaged more than 80 (Jimmy Carter). Reagan averaged 48, Bush 42, Clinton 46, Bush 36, and Obama 35.

So historically speaking, what Trump is doing has historical precedent. Obama issued a number of orders and memoranda in his first few weeks in office, but then slowed down. The same could be true for Trump. The reason I believe presidents use orders frequently after their inauguration is because they have been elected by a public on promises they make during campaigns and given the gridlock in Congress and the focus on the first 100 days, they know they don’t have time to wait to take the action for which voters are looking.

But in my mind, their desire to “get things done” and our similar demand that they act accordingly has had negative consequences. Amidst much fear and panic in the face of the Great Depression, President Franklin Roosevelt was able to dramatically and, in many ways, permanently increase the size of government and the power of the presidency. The precedent has been set for a president to make sweeping changes in the name of the common good with a signature. Are we sure that’s really in our collective best interest?

  1. Executive Orders. (n.d.). Retrieved February 03, 2017, from http://www.presidency.ucsb.edu/data/orders.php
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