When we talk about how laws are traditionally created by the United States government, we generally reference the legislative branch, not the executive one. And yet President Barack Obama has been more prominent in that discussion of late, because of what some consider an excessive willingness to issue executive orders. But is it really so excessive?
The balance of power
In 1788, James Madison wrote in The Federalist Papers, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
While campaigning for president, Barack Obama seemed to agree, criticizing George W. Bush and promising to restore a proper balance to the government. In 2008, he said,
“I taught constitutional law for 10 years. I take the Constitution very seriously. The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America.”
Political strategist Mary Anna Mancuso asserts that he didn’t fulfill this promise. “Barack Obama ran on a platform that included ending executive overreach—President Obama failed miserably in that regard,” she says.
13,700 executive orders
As of December 2015, US presidents have signed more than 13,700 executive orders. “Other presidents have issued more executive actions than President Obama,” says John Ubaldi of Ubaldi Reports, “but one should not look just at the number but also what type of executive actions were issued.”
Occasionally, the executive order deals with a situation of major importance, such as Lincoln’s Emancipation Proclamation of 1863. In the vast majority of cases, however, they’re issued for matters of minor consequence, such as giving federal employees a half-day off on Christmas Eve.
“Where they won’t act, I will”
“The duty of the executive branch is to ‘take care that the laws be faithfully executed,’” explains Ubaldi. “The President can’t change aspects of a law he doesn’t like or not enforce certain laws over others.”
Obama is using executive orders to write sweeping new laws as he—not elected legislators—sees fit. He issues orders when he knows he’ll be unable to push his desired legislation through Congress, infamously stating in October 2015, “We can’t wait for Congress to do its job, so where they won’t act, I will.”
Executive orders are not intended to implement massive programs that have not been written by Congress. “President Obama has used executive actions in areas where the Constitution gives authority to the legislative branch to write laws and the President to enforce those laws,” says Ubaldi.
But is it necessary?
The counter-argument, of course, is that the Republican-led Congress, in its zeal to oppose Obama’s agenda, has become intransigently, historically ineffective on purpose, as a strategy to win back the presidency. In this context, Obama’s executive actions are not the efforts of a despotic ruler trying to forego the Constitution in order to make laws of his own nefarious design, but are instead the result of a legislative body that has fundamentally failed to do its job, to the increasing detriment of the country.
Even some of Obama’s fiercest critics, like recent Republican presidential candidate Marco Rubio, acknowledge how impotent Congress has become, declaring “we’re not going to fix America with senators and congressmen,” and calling for term limits.
Furthermore, Obama might not be too worried about using this strategy, given the immensely terrible approval rating of Congress as an institution, and increasing evidence that inaction is very much having real world consequences.
Still, the absence of oversight that Congress normally provides is cause for concern. “President Obama uses the ‘inaction of Congress’ as his reasoning, but Congressional ‘inaction’ was purposefully built into the American system of government as a way to prevent a president from acting unilaterally,” says attorney Michael B. Abramson, author of A Playbook for Taking Back America. “If a president wishes to enact certain policies, he should draft bills and present them to Congress.”
Eventual rulings may undo a number of Obama’s orders but, in many instances, the repercussions of an order can’t be undone. In keeping with the balance of power, executive orders are subject to legislative and judicial review, and many of Obama’s will be challenged in the court system and, ultimately, overturned. Doing so, however, will take a significant amount of time, and in some cases it will be too late.
Consider the energy industry. Executive orders regarding emissions will cause coal-fired power plants to close, at costs of billions of dollars.
President Obama has used executive overreach via executive agencies as well, according to Ubaldi. “The president,” he says, “has used the EPA to write rules and regulations that go far beyond their legal authority, all without legislative approval.”
Utilities cannot wait it out while Obama’s orders are challenged—lead times for investment reliability are often in the five- to eight-year range. Instead, they must embrace executive orders regarding compliance timelines as law. Reversing the orders down the road will not bring the coal-fired generators (or the mines that supported them) back into operation.
A broken, not balanced, Washington
Liberal Georgetown University law professor Jonathan Turley, in December 2013, warned the nation that Obama is “becoming the very danger the Constitution was designed to avoid.”
Adds Mancuso, “The lasting legacy of Obama is that he ran on hope and change and intentionally governed otherwise. Obama’s legacy is not a repudiation of a broken Washington, it’s an exacerbation of it. Obama will leave DC worse than he found it. Plain and simple.”
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.