This article originally appeared on I Contain Multitudes.
I remember being a kid. One of my great joys was opening a new box of cereal with a toy inside the box. Having about the normal amount of patience for a kid (read: None) I would usually get the biggest bowl I could find and dump as much cereal into it as possible so as to retrieve the toy right away. Then I would try to put the cereal back into the box. Often without much success. I look back at this practice with fond bemusement, remembering it as a time before I learned that while it is all well and good to cheat a little to get a toy there are some processes that trying to circumvent them seems to eventually if not immediately lead to a great deal of difficulty. I am starting to think that Executive Orders are one of those things.
What Are Executive Orders?
From Information Station
here is a brief explanation of what Executive Orders are, the history of their use, and why they are problematic.
"An executive order is a directive handed down from a president or state governor without involvement from the legislative or judicial branches. Executive orders can only be given to federal or state agencies like the Department of Homeland Security or the State Department.
Even though executive orders are not mentioned in the constitution, they have been used by every President since George Washington—and more often in times of war or during national disasters when government policy needs to work more quickly than the traditional legislative process. Sometimes the Supreme Court has stepped in to rein back Presidential powers, like when Harry Truman tried to use executive orders to have the government seize America’s steel plants in the 50s.
Presidents have increasingly used executive orders to make policy that circumvents Congressional control. In recent years, George W. Bush used executive orders to approve more aggressive surveillance after 9/11, and President Obama has used them for several things, including immigration reform.
While executive orders can be an essential tool for Presidents, some fear that their increased use threatens the long-standing checks and balances set up in the Constitution. In that system, Congress makes the laws, the Courts interpret the law, and the President and the executive branch enforces the law.
So the next time you hear a president is issuing an executive order it really means one person is making a decision for 322 million Americans, without input from Congress, state legislatures or Courts, and it can be just as easily changed by the next president with the stroke of a pen and no input from anyone else."
So What Exactly Is The Problem Here?
The first problem is to an extent symbolic. The fact that it seems that the processes in place to effect change, in the Legislative and Judiciary have become so glacial and fraught with the ability to be stymied that increasingly Presidents seem to feel the only way to effect change is through Executive Orders. Personally I feel that they should be a tool of last resort only. But the bigger problem is in the last sentence I quoted above, "(I)t can be just as easily changed by the next president..." It seems that often one of the very first things that a President does after he has been sworn in is to begin to issue Executive Orders undoing many of the things done by Executive Order by his predecessor, especially if that predecessor was from the opposing party. This is a bit like living in a house where one day the rules are X and the next day they are Y. It leaves one feeling as if there is no stability to be had. The idea of being a nation of laws is that the law is supposed to apply to everyone more or less equally and that they should be consistent. While not immutable it should take more to change or end existing laws or enact new ones, than the stroke of one persons pen.
What Might Be Done To Change Things?
I think there are a few ideas that should be explored. First of all because Executive Orders are extra constitutional it seems to me that one way to handle things would be to draft a constitutional amendment clearly spelling out their purpose and the ways in which they may or may not be used. However because they are not in the Constitution it may not even take that large a step if basic laws governing their use could be passed. My ideas for guidelines for Executive Orders include...
- Before a president can issue an executive order they must demonstrate that they have exhausted all the usual means of effecting change and shaping policy. One example of this is the obstructionist Republican led Congress that President Obama had to deal with.
- They must demonstrate clearly that the change they wish to effect is in the national interest and that waiting for the usual processes would be contrary to those interests. The best example of this in my opinion would be Obama's Executive Orders regarding immigration.
- There should be a moratorium on issuing an Executive Order that contradicts an Executive Order of the president immediately previous until a certain amount of time has passed. Say at least six months. Unless they can show that allowing the current order to stand would result in undue harm to certain groups, or the national interest. After the moratorium period has passed however they still would be bound by the first two strictures.
Would This Really Help Anything?
While I don't think that denying the president the use of Executive orders altogether would be a good idea, I do feel that serious reform is needed for the long term health and stability of our nation and our democracy.
These are some of my ideas, I would love to read what other people think. Are you bothered by Executive Orders? If not, why not? If so what do you think should be done to reform their use?
Keep The Faith My Sisters And Brothers!