There has been an awful lot of talk about Presidential Executive Orders lately. I think it’s fair to say that there has been an element of controversy and some amount of misunderstanding of or confusion over what exactly an Executive Order is and how or how not it has been used by President Trump recently. This letter is by no means an attempt to take sides or express an opinion concerning the recent actions of Trump’s Cabinet, Border Enforcement Policy or Personnel or Executive orders of President Trump; rather it is an attempt to examine the following: what is a Presidential Executive Order, what is the scope, reach and limitations thereof, when did the practice of Executive Orders begin and a brief look at how many Executive Orders have been issued by our current President in historical context compared to his predecessors.
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I have heard worried voices express the opinion that The American President has the ability to abuse Executive Orders to subvert and override Congress in order to become a dictator or tyrant. This is untrue and mechanisms exist in our system or government to prevent an attempt by any President to become a supreme ruler, king or dictator; regardless in this instance of who currently occupies that post or how I or anyone else may feel about whoever may be President of the United States at any given time.
As legal scholar and former National Security Council staffer Philip Bobbitt has written, there are also times when it is incumbent on government officers and officials to “break the law” in order to protect the nation. That could cut several ways of course, but it highlights that determination of what orders to enforce does not reside with the sole discretion of whoever occupies the Oval Office. What of the legitimate argument that a president could simply fire or demand the resignation of any Cabinet member or military officer who refused to carry out a presidential directive? That is certainly what happened during the Nixon administration during the infamous Saturday Night Massacre of October 20, 1973.
Special Prosecutor Archibald Cox had subpoenaed the president for documents relating to the Watergate break-in. Rather than comply, Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned. Then Nixon ordered the deputy attorney general to fire Cox. He too refused and resigned. Nixon then turned to the solicitor general, a young Robert Bork, and ordered him to fire Cox. Believing the order to be a valid exercise of presidential power, Bork complied. Had the story stopped there, it would be a prime example proving the case the presidency carries enough unfettered power to justify the impending sense of danger that the office might soon be occupied by someone who could use that power to great harm. What happened, however, was that Nixon’s exercise of power pushed Congress to accelerate impeachment proceedings on the grounds that the president had abused that power, and he was forced from office less than a year later.
This may be cold comfort, especially to those who have envisioned all the ways that an individual such as Trump would quickly direct the powers of the presidency toward some very unsavory authoritarian actions. But the reality does not match the fear.
Presidents find themselves constrained from every side—and far more than autocrats or generals. Any president would need the active complicity of thousands and thousands of skilled and able bodies to even begin to do what many fear Trump will do. As Harry Truman said when he contemplated Dwight Eisenhower succeeding him, according to the scholar Richard Neustadt, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”
Lyndon Johnson, who understood the powers of the presidency about as well as anyone, also reflected on the limits of that power, confessing after he left office to his young amanuensis Doris Kearns Goodwin his repeated dreams of executive impotency.
American government has, in other words, a large and unwieldy bureaucracy and centuries of checks and balances and traditions that have proven resilient in the face of ineptitude and even illegality. At the same time, this system remains deeply resistant to reform. This same system is often blamed, on the other hand, for having a slower pace of progress than molasses in January—but in the case of a President who is hell-bent on becoming a sole dictator, we may be thankful for it.
An Executive order is defined as “a directive from the President that has much of the same power as a federal law. The constitutional basis for the executive order is the President’s broad power to issue executive directives.” (source: National Constitution Center). According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.” But Article II of the U.S. Constitution vests executive powers in the President, makes him the commander in chief, and requires that the President “shall take Care that the Laws be faithfully executed.”
Laws can also give additional powers to the President. While an executive order can have the same effect as a federal law under certain circumstances, Congress can pass a new law to override an executive order, subject to a presidential veto. (National Constitution Center). Every of our 45 Presidents, starting George Washington, have used the executive order power in numerous ways. Washington’s first orders were for executive departments to prepare reports for his inspection, and a proclamation about the Thanksgiving holiday.
After Washington, other Presidents made substantial decisions using executive orders and presidential proclamations. Two other executive orders comprised Lincoln’s Emancipation Proclamation. Lincoln was fearful that the Emancipation Proclamation would be overturned by Congress or the courts after the war’s end, since he justified the proclamation under his wartime powers. The ratification of the 13th Amendment ended that potential controversy.
President Franklin Roosevelt established internment camps during World War II using Executive Order 9066. Roosevelt also used an executive order to create the Works Progress Administration. And President Harry Truman mandated equal treatment of all members of the armed forces through executive orders. However, Truman also saw one of his key executive orders invalidated by the Supreme Court in 1952, in a watershed moment for the Court that saw it define presidential powers in relation to Congress.
The Court ruled in Youngstown Sheet and Tube Co. v. Sawyer that an executive order putting steel mills during the Korean War under federal control during a strike was invalid. “The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” Justice Hugo Black said in his majority opinion. It was Justice Robert Jackson’s concurring opinion that stated a three-part test of presidential powers that has since been used in arguments involving the executive’s overreach of powers. Jackson said the President’s powers were at their height when he had the direct or implied authorization from Congress to act; at their middle ground – the Zone of Twilight, as he put it, when it was unsure which branch could act; and at their “lowest ebb” when a President acted against the expressed wishes of Congress.
The use of executive orders also played a key role in the Civil Rights movement. In 1957, President Dwight Eisenhower used an executive order to put the Arkansas National Guard under federal control and to enforce desegregation in Little Rock.
Affirmative action and equal employment opportunity actions were also taken by Presidents Kennedy and Johnson using executive orders. President Roosevelt issued the most executive orders, according to records at the National Archives. He issued 3,728 orders between 1933 and 1945, as the country dealt with the Great Depression and World War II.
President Truman issued a robust 896 executive orders over almost eight years in office. President Barack Obama issued 277 orders during his presidency. His predecessor, President George W. Bush, issued 291 orders over eight years, while President Bill Clinton had 364 executive orders during his two terms in office.
The most-active President in the post-World War II era, in terms of executive orders, was Jimmy Carter, who averaged 80 orders per year during his four-year term. In the June 26, 2018 edition of USA TODAY, Aaron Hegerty reports the following reliable, accurately verifiable Timeline of How family separations at border unfolded: The Trump administration launched a "zero tolerance" policy on the southwest border in April. But officials floated the idea of separating children from parents at the border more than a year earlier as means to deter illegal crossings.
March 7, 2017: John Kelly, then secretary of Homeland Security, confirms a report that the administration is considering separating families at the border. He tells CNN it would "deter more movement along this terribly dangerous network."
April 5, 2017: Kelly says parents and children would only be separated at the border "if the child’s life is in danger."
October 2017: Separations begin no later than October, according to a New York Times report published in April 2018.
December 11, 2017: Immigration advocacy organizations file a joint complaint to the Department of Homeland Security about family separations.
2018
April 6: Attorney General Jeff Sessions announces a “zero tolerance” policy at the southwest border. It directs federal prosecutors to criminally prosecute all adult migrants entering the country illegally. The policy change leads to the separation of families because children cannot be held in a detention facility with their parents.
April 11: Homeland Secretary Kirstjen Nielsen testifies before the House Homeland Security Appropriations Subcommittee that there is no policy that calls for the separation of families as a deterrence. "The standard is to – in every case – is to keep that family together as long as operationally possible," she says. "When we separate, we separate because the law tells us to, and that is in the interest of the child.”
April 16: The Homeland Security Inspector General will look into whether the agency is improperly separating families, CNN reports. The move comes after Democratic senators urged the office to open an investigation in letter.
April 20: The New York Times publishes a report that says more than 700 children have been taken from their parents since October, 100 of those under the age of 4. It was the first report to call attention to the scale of separations.
May 7: Sessions makes clear that the Border Patrol and Justice Department intend to prosecute every adult who crosses the southwest border illegally. He acknowledges this will require the government to separate children from the adults traveling with them. "If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law," Sessions says. "If you don’t like that, then don’t smuggle children over our border." From May: AG Jeff Sessions vows to separate kids from parents, prosecute all illegal border-crossers
May 11: Kelly, who became White House Chief of Staff in July, defends the separation of undocumented immigrants from their children as a necessary evil in the administration's effort to increase border security during an interview with National Public Radio. In the effort to enforce U.S. border laws, "a big name of the game is deterrence," he says. And separating families "could be a tough deterrent."
May 15: Nielsen defends the separation of children from parents before the Senate Homeland Security and Governmental Affairs Committee. She denies that Trump ordered the separation as a deterrent to illegal immigration. "My decision has been that anyone who breaks the law will be prosecuted," she says.
June 14: Sessions defends the policy by citing a Biblical passage from Apostle Paul’s epistle to the Romans: “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order,” Sessions says. “Orderly and lawful processes are good in themselves and protect the weak and lawful.” White House Press Secretary Sarah Sanders says the president is “simply enforcing the law.” “The separation of alien families is the product of the same legal loopholes that Democrats refuse to close, and these laws are the same that have been on the books for over a decade.”
June 15: For the first time, the Department of Homeland Security says how many children have been separated during the zero-tolerance initiative: Nearly 2,000 children from April 19 to May 31.
June 17: Public attention to the issue spikes, according to Google Trends data.
June 18: Nielsen says the administration "will not apologize" for separating families. "We have to do our job. We will not apologize for doing our job," she says. "This administration has a simple message — If you cross the border illegally, we will prosecute you."
June 19: Iowa's GOP governor calls the separation of immigrant families "horrific" and says the government shouldn't treat children as “pawns.” Methodists sign a formal denominational complaint complaint against Sessions for his role in causing the separation of families.
June 20: Facing a national outcry, Trump signs an executive order designed to keep migrant families together at the U.S.-Mexico border, abandoning his earlier claim that the crisis was caused by an iron-clad law and not a policy that he could reverse. The order, drafted by Nielsen, directs Homeland to keep families together after they are detained crossing the border illegally. In addition, Homeland reports 2,342 children were separated at the border from 2,206 adults from May 5 to June 9.
June 21: A USA TODAY analysis of thousands of cases, reveals the Trump administration border crackdown that separated thousands of children from their parents is built on a mountain of small-time criminal prosecutions that typically end with people sentenced to spend no additional time in jail and pay a $10 fee. The Justice Department asks a federal judge to change the rules for detaining undocumented immigrants as the Trump administration presses its effort to halt the family separations while continuing the "zero tolerance" policy. At issue is the Flores consent decree and related court rulings that require release of children within 20 days. The problem is that under zero tolerance the government is criminally charging adults – and their cases generally take far more than 20 days to litigate. The government wants approval to allow the kids to stay with their detained parents.
June 24: In a tweet, Trump calls for illegal immigrants to be immediately deported back to their home countries without any court involvement.
June 25: Customs and Border Protection Commissioner Kevin McAleenan says Trump’s executive order has temporarily halted criminal prosecution of parents and guardians unless they had criminal history or the child’s welfare was in question. However, he insists the White House’s zero tolerance policy remained intact.
June 26: A federal judge in California orders U.S. immigration authorities to reunite separated families on the border within 30 days, describing the Trump administration's handling of the crisis as attempts "to address a chaotic circumstance of the government’s own making." The preliminary injunction, issued by U.S. District Judge Dana Sabraw in San Diego, says “children younger than 5 must be reunified within 14 days.”
At the end of the day, no matter who occupies the office of The Presidency of The United States of America is subject to the same Rule of Law, the same Uniform Code of Military Justice as any of the military under his or her command, The Geneva Convention, The President can be Impeached and Removed from office for High Crimes or Gross Misconduct including abuse of power and subversion of law.
The American system of checks and balances (our division of powers between the Executive, Legislative and Judicial Branches of our federal government) is still functioning. There are differences in opinion on just exactly how well our government is functioning especially along political lines.
My opinion is, if you are worried that our system is compromised to the extent that the sitting President of the United States is poised to become a dictator or king, my advice would be deep breathing, relaxation (in any form you find it) and focus of your concern elsewhere.
J. David Parker
Centralia, Illinois
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