Executive Orders: Tit for Tat, or Are Executive Orders in Jeopardy?

 

The reasoning behind executive orders has always been a mystery to me, so I decided to do a little research into their history, as well as speculate on their use in these chaotic times. I’m not sure the justification for them will be any clearer, but we may see some alternatives to their use by the president if Trump is elected. Here is one definition of Executive Orders:

An executive order is a directive from the President that has much of the same power as a federal law. Several landmark moments in American history came about directly from the use of executive orders issued from the White House’s desk, including one Supreme Court decision that limited a presidential executive order issued by Harry Truman. . .

The constitutional basis for the executive order is the President’s broad power to issue executive directives. 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.’

It appears, then, that any order may fit the bill, as long as it doesn’t violate the Constitution. I’m not sure a violation is always obvious.

For the record, President Roosevelt issued the most orders at 3,728 between 1933 and 1945. President Biden has issued 118 of them; President Trump issued 220 of them. Many of Biden’s orders were reversals of orders by Trump.

Trump has already stated that he will reverse several of Bidens orders; yes, Biden issued executive orders to reverse Trump’s orders, and now Trump will likely do the same. Although it’s apparently not uncommon for this to happen, this tit-for-tat activity seems absurd, and I can’t help but wonder if someone will try to protect Biden’s orders from reversal.

I was speculating on how that might happen. First, with the rollback of the Chevron Doctrine, SCOTUS was trying to send the clear message that they don’t want the bureaucrats writing legislation. It is Congress’s job to write legislation. Do you suspect, as I do, that the Democrats will act to stop President Trump from enacting certain executive orders, claiming it falls into the category of legislation and is the responsibility of Congress?

Second, particularly with the liberal justices on SCOTUS, will the Court reject some executive orders by Trump because they are legislation that belong under the venue of Congress? Remember, even the conservative Justices insisted that Congress must write the legislation, not the agencies.

There may be other barriers to executive orders, and I’d appreciate your input on those.

How can Trump avoid being stymied by delusional Democrats and the partisan members of the Supreme Court?

I’d suggest, that if he has a majority in the two Houses, he tries to get legislation through; he could enact EOs, particularly if there is an urgent need, but indicate that he is going to have it voted on by the House and Senate. This approach will indicate to the public that he is working in concert with Congress, not in opposition to it. My concern is that with all the hyperbole and hysteria about his becoming a dictator, the opposition will use every opportunity to stop him.

Another way for them to create barriers would be to appeal to the Supreme Court, every chance they get; that approach doesn’t guarantee a hearing by the Court, but it will slow things down. (For the record, Congress can create legislation to stop an EO, but Trump would be able to veto it.) And I wouldn’t be surprised to see Congress try impeachment again.

A Trump presidency will be rocky if he’s elected. I hope he will try, with his four years of experience in the role, to get Congress on board. This strategy will give him the chance to avoid some of the slurs and accusations of his presidential role.

Let’s hope for majorities in the Senate and House to support a Trump presidency.

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  1. cdor Member
    cdor
    @cdor

    If he wins with coattails, I hope that the Republican Congress has learned some lessons and supports their Republican President.

    • #1
  2. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    cdor (View Comment):

    If he wins with coattails, I hope that the Republican Congress has learned some lessons and supports their Republican President.

    Wouldn’t that be a pleasant change? The more the Republicans support him (and they won’t if they’re part of the swamp), the less effective Leftists blowback will be.

    • #2
  3. Rodin Member
    Rodin
    @Rodin

    It’s a 4 step process:

    1. Repeal Biden Executive Orders.
    2. Appoint competent cabinet members that will have their departments adhere to law but not flog the people.
    3. Fill open judgeships with competent and non-ideological (beyond reverence for the rule of law) people.
    4. Prepare, sign and defend new Executive Orders.

    Lawfare will not end until, and if, it begins to cost too much with too little benefits to the plaintiffs. 

    • #3
  4. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Rodin (View Comment):

    It’s a 4 step process:

    1. Repeal Biden Executive Orders.
    2. Appoint competent cabinet members that will have their departments adhere to law but not flog the people.
    3. Fill open judgeships with competent and non-ideological (beyond reverence for the rule of law) people.
    4. Prepare, sign and defend new Executive Orders.

    Lawfare will not end until, and if, it begins to cost too much with too little benefits to the plaintiffs.

    I still hope that Trump will move to get legislation passed rather than passing multiple EOs.

    • #4
  5. kedavis Coolidge
    kedavis
    @kedavis

    The way I heard it, Executive Orders are directed to the Executive Branch, which the President is in charge of.  So, an Executive Order could not – for example – be directed at Congress.

    • #5
  6. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    kedavis (View Comment):

    The way I heard it, Executive Orders are directed to the Executive Branch, which the President is in charge of. So, an Executive Order could not – for example – be directed at Congress.

    I didn’t say it would be. That doesn’t mean that the President can’t ask Congress to initiate legislation. And Executive Orders originate in the Executive Branch; they aren’t directed there by anyone outside.

    • #6
  7. Hartmann von Aue Member
    Hartmann von Aue
    @HartmannvonAue

    Susan Quinn (View Comment):

    cdor (View Comment):

    If he wins with coattails, I hope that the Republican Congress has learned some lessons and supports their Republican President.

    Wouldn’t that be a pleasant change? The more the Republicans support him (and they won’t if they’re part of the swamp), the less effective Leftists blowback will be.

    It would, Susan, but I laughed bitterly at the notion of Republican legislators learning anything useful or beneficial to the republic.

    • #7
  8. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Hartmann von Aue (View Comment):
    It would, Susan, but I laughed bitterly at the notion of Republican legislators learning anything useful or beneficial to the republic.

    You might be right, HvA, but I’m an incurable dreamer.

    • #8
  9. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    The president’s job is to manage the bureaucracy. It’s natural that this would require the president to order the bureaucracy to do something, or to refrain from doing something, from time to time.

    As long as the order does not contradict the constitution or legislation that has been constitutionally enacted by Congress then there should be no controversy regarding the president’s authority to order the bureaucracy around.

    • #9
  10. kedavis Coolidge
    kedavis
    @kedavis

    Misthiocracy has never (View Comment):

    The president’s job is to manage the bureaucracy. It’s natural that this would require the president to order the bureaucracy to do something, or to refrain from doing something, from time to time.

    As long as the order does not contradict the constitution or legislation that has been constitutionally enacted by Congress then there should be no controversy regarding the president’s authority to order the bureaucracy around.

    Except Trump, of course.

    • #10
  11. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Misthiocracy has never (View Comment):

    The president’s job is to manage the bureaucracy. It’s natural that this would require the president to order the bureaucracy to do something, or to refrain from doing something, from time to time.

    As long as the order does not contradict the constitution or legislation that has been constitutionally enacted by Congress then there should be no controversy regarding the president’s authority to order the bureaucracy around.

    You’re so darned rational, Mis.  I can’t help believing they’ll try something and I lack the imagination to figure out what it is. They’re too crazy.

    • #11
  12. Red Herring Coolidge
    Red Herring
    @EHerring

    The president’s job is to ensure laws passed by Congress are faithfully executed. EOs are directives to his branch to do just that. They are the office memo from the boss. 

    We have seen a growing abuse of their use. Democrats, especially, have used them to do what they want when Congress couldn’t pass laws allowing that. I believe the Chevron decision last week will help roll back the abuse of EOs as well as the abuses committed by the administrative state. This won’t be automatic. Dems will continue on their path unless stopped in court. They don’t respect laws or this court ruling. 

    • #12
  13. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Red Herring (View Comment):

    The president’s job is to ensure laws passed by Congress are faithfully executed. EOs are directives to his branch to do just that. They are the office memo from the boss.

    We have seen a growing abuse of their use. Democrats, especially, have used them to do what they want when Congress couldn’t pass laws allowing that. I believe the Chevron decision last week will help roll back the abuse of EOs as well as the abuses committed by the administrative state. This won’t be automatic. Dems will continue on their path unless stopped in court. They don’t respect laws or this court ruling.

    I believe that EOs have been abused, too, but the abuse is not always obvious. 

    • #13
  14. Globalitarian Misanthropist Coolidge
    Globalitarian Misanthropist
    @Flicker

    Here are the listings of the presidents who issued mor than 100 EOs per year.  The second column from the right is the number per year (from wikipedia).

    26

    Theodore Roosevelt

    Republican

    1,081

    141-1050

    7.47

    144.7

    September 14, 1901 – March 4, 1909

    27

    William Howard Taft

    Republican

    724

    1051-1743

    4

    181.0

    March 4, 1909 – March 4, 1913

    28

    Woodrow Wilson

    Democratic

    1,803

    1744-3415

    8

    225.4

    March 4, 1913 – March 4, 1921

    29

    Warren G. Harding

    Republican

    522

    3416-3885

    2.41

    216.9

    March 4, 1921 – August 2, 1923

    30

    Calvin Coolidge

    Republican

    1,203

    3885-A-5075

    5.59

    215.2

    August 2, 1923 – March 4, 1929

    31

    Herbert Hoover

    Republican

    968

    5075–6070

    4

    242.0

    March 4, 1929 – March 4, 1933

    32

    Franklin D. Roosevelt

    Democratic

    3,728

    6071–9537

    12.11

    307.8

    March 4, 1933 – April 12, 1945

    33

    Harry S. Truman

    Democratic

    907

    9538–10431

    7.77

    116.7

    April 12, 1945 – January 20, 1953

    It appears generally that the number of EOs increased as the rate of government growth and bureaucracy increased.  So perhaps they are inherent in government growth, and reducing government bureaucracy would ultimately reduce the utility and prevalence of EOs.

    • #14
  15. EJHill Staff
    EJHill
    @EJHill

    On of the worst actions of the United States government was Executive Order 9066 that authorized the relocation and internment of 125,000 people of Japanese ancestry in WWII (83,000 of which were American citizens.) 

    No due process, no nothing. 

    • #15
  16. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    EJHill (View Comment):

    On of the worst actions of the United States government was Executive Order 9066 that authorized the relocation and internment of 125,000 people of Japanese ancestry in WWII (83,000 of which were American citizens.)

    No due process, no nothing.

    I completely agree, EJ. Horrible.

    • #16
  17. kedavis Coolidge
    kedavis
    @kedavis

    Susan Quinn (View Comment):

    EJHill (View Comment):

    On of the worst actions of the United States government was Executive Order 9066 that authorized the relocation and internment of 125,000 people of Japanese ancestry in WWII (83,000 of which were American citizens.)

    No due process, no nothing.

    I completely agree, EJ. Horrible.

    And I note that when I’ve searched for articles about that, they tend not to mention that FDR was a Democrat.

    • #17
  18. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Susan Quinn (View Comment):

    EJHill (View Comment):

    On of the worst actions of the United States government was Executive Order 9066 that authorized the relocation and internment of 125,000 people of Japanese ancestry in WWII (83,000 of which were American citizens.)

    No due process, no nothing.

    I completely agree, EJ. Horrible.

    I disagree, in part.  The situation was more complex than indicated here.

    I’m going from memory, having looked into the issue some years ago.  About 1/3 of those interned were Japanese citizens living in the US, who were enemy aliens in wartime.  I see nothing outrageous about interning such enemy aliens.

    About 1/3 were the minor children of Japanese enemy alien parents, who had been born in the US and were therefore US citizens.  It does not seem outrageous, to me, to keep those children with their parents, when the parents are properly interned.

    The troubling part is the final group, also approximately 1/3, who were adult US citizens, generally the adult children of enemy aliens.

    I don’t see anything strange about anticipating that US citizens with ancestry in a particular country may have a strong affinity for that country.  This is typical, I think, and it is also typical for that affinity to wane over the generations.  I remember my own grandfather, who was the son of immigrants, proudly displaying a signed picture of Mussolini in his home.

    There is reason to doubt the loyalty of recent immigrants.  This doesn’t mean that they are automatically disloyal, but I find it unrealistic to expect that, in the event of war, recent immigrants from a country with which we are at war, and their children, would behave in exactly the same way as others.

    There was an event in Hawaii in December 1941 called the Niihau incident, in which two American citizens of Japanese ancestry aided a Japanese pilot who crash-landed after battle damage to his plane in the Pearl Harbor attack.  It wasn’t innocent.  The Japanese-Americans helped the Japanese pilot to escape custody, and a native Hawaiian was shot in the confrontation, though he survived.

    • #18
  19. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Globalitarian Misanthropist (View Comment):

    Here are the listings of the presidents who issued mor than 100 EOs per year. The second column from the right is the number per year (from wikipedia).

    26

    Theodore Roosevelt

    Republican

    1,081

    141-1050

    7.47

    144.7

    September 14, 1901 – March 4, 1909

    27

    William Howard Taft

    Republican

    724

    1051-1743

    4

    181.0

    March 4, 1909 – March 4, 1913

    28

    Woodrow Wilson

    Democratic

    1,803

    1744-3415

    8

    225.4

    March 4, 1913 – March 4, 1921

    29

    Warren G. Harding

    Republican

    522

    3416-3885

    2.41

    216.9

    March 4, 1921 – August 2, 1923

    30

    Calvin Coolidge

    Republican

    1,203

    3885-A-5075

    5.59

    215.2

    August 2, 1923 – March 4, 1929

    31

    Herbert Hoover

    Republican

    968

    5075–6070

    4

    242.0

    March 4, 1929 – March 4, 1933

    32

    Franklin D. Roosevelt

    Democratic

    3,728

    6071–9537

    12.11

    307.8

    March 4, 1933 – April 12, 1945

    33

    Harry S. Truman

    Democratic

    907

    9538–10431

    7.77

    116.7

    April 12, 1945 – January 20, 1953

    It appears generally that the number of EOs increased as the rate of government growth and bureaucracy increased. So perhaps they are inherent in government growth, and reducing government bureaucracy would ultimately reduce the utility and prevalence of EOs.

    Just eyeballing the figures, it seems more likely that executive orders are more common in wartime, accounting for the high figures for Wilson, FDR, and perhaps Truman.

    • #19
  20. Red Herring Coolidge
    Red Herring
    @EHerring

    I don’t worry about the number of EOs but by the number not attached to any law and the number attached to deliberately vague laws that can be abused by EOs. An EO could be a necessary instruction following the passing of a new bill. Increasing the number of EOs could also be directly proportional to the federal government’s desire to lord over so many areas of our lives by adding more laws on the books. I am disturbed by the number of people who judge a Congress critter’s effectiveness by the number of laws he sponsors or co-sponsors.

    • #20
  21. Misthiocracy has never Member
    Misthiocracy has never
    @Misthiocracy

    Red Herring (View Comment):

    The president’s job is to ensure laws passed by Congress are faithfully executed. EOs are directives to his branch to do just that. They are the office memo from the boss.

    We have seen a growing abuse of their use. Democrats, especially, have used them to do what they want when Congress couldn’t pass laws allowing that. I believe the Chevron decision last week will help roll back the abuse of EOs as well as the abuses committed by the administrative state. This won’t be automatic. Dems will continue on their path unless stopped in court. They don’t respect laws or this court ruling.

    It’s worse when the directives aren’t issued in writing. One should be happy when presidents issue unconstitutional EOs, because at least that way it’s out in the open.

    • #21
  22. DaveSchmidt Coolidge
    DaveSchmidt
    @DaveSchmidt

    Misthiocracy has never (View Comment):

    Red Herring (View Comment):

    The president’s job is to ensure laws passed by Congress are faithfully executed. EOs are directives to his branch to do just that. They are the office memo from the boss.

    We have seen a growing abuse of their use. Democrats, especially, have used them to do what they want when Congress couldn’t pass laws allowing that. I believe the Chevron decision last week will help roll back the abuse of EOs as well as the abuses committed by the administrative state. This won’t be automatic. Dems will continue on their path unless stopped in court. They don’t respect laws or this court ruling.

    It’s worse when the directives aren’t issued in writing. One should be happy when presidents issue unconstitutional EOs, because at least that way it’s out in the open.

    Good point. 

    • #22
  23. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    A few or maybe quote  a lot of the EO’s put forth by Presidents from JFK all the way thru to  Bill Clinton are rather scary in terms of the ability to impose martial law:

    From the following rather conspiratorial website (Although the info regarding FEMA and the list of EO’s are actually true)

    https://gazetteller.com/red-alert-femas-blueprint-for-america-executive-orders-regional-control-and-the-march-towards-martial-law/

    The Federal Emergency Management Agency (FEMA), a name that resonates with authority and protection, presents a trio of threats that should send shivers down the spine of every freedom-loving American. These threats are not mere speculation: they are the culmination of years of expanding executive power, a power that now teeters on the brink of tyranny.

    The confiscation of supplies, a nightmare for any prepared citizen, has been codified into law. Under the guise of public safety, the government, through executive orders, has granted itself the power to seize virtually any resource deemed necessary. This isn’t just about hoarding medical supplies; it’s about control over every basic necessity of life.

    The executive orders, a series of decrees that read like a playbook for authoritarian rule, lay the groundwork for a reality that many would dismiss as dystopian fiction. These orders encompass the seizure of communication media, electric power, transportation, and even the American people themselves. The power to split families, to seize health and education facilities, and to control housing and finance, paints a picture of a government unchained, a government that has stepped beyond the bounds of democratic oversight. Also, the documentation surrounding prison camps, labor inmate programs, and national emergency centers reveals an agenda that is as clear as it is chilling. This is not about managing emergencies; it’s about managing people, about reshaping society into a mold that serves the interests of the few at the expense of the many.

     

    Here is a list of  Executive Orders — all of which pave the way for FEMA Camps to be instituted within America:

    1. Executive Order #10995: Seizure of all communications media in the United States.
    2. Executive Order #10997: Seizure of all electric power fuels and minerals, public and private.
    3. Executive Order #10999: Seizure of all means of transportation, including personal cars, trucks or vehicles of any kind and total control of highways, seaports and waterways.
    4. Executive Order #11000: Seizure of all American people for work forces under federal supervision including the splitting of families if the government finds it necessary.
    5. Executive Order #11001: Seizure of all health, education and welfare facilities, public and private.
    6. Executive Order #11002: Empowered the postmaster general to register all men, women and children in the U.S.
    7. Executive Order #11003: Seizure of all airports and aircraft.
    8. Executive Order #11004: Seizure of all housing and finance authorities to establish Forced Relocation Designated areas to be abandoned as “unsafe.”
    9. Executive Order #11005: Seizure of all railroads, inland waterways and storage facilities, public and private.
    10. Executive Order #12919: Signed on June 3, 1994, by President Clinton. Encompasses all the above executive orders.

     

     

     

     

    • #23
  24. Globalitarian Misanthropist Coolidge
    Globalitarian Misanthropist
    @Flicker

    Jerry Giordano (Arizona Patrio… (View Comment):

    Globalitarian Misanthropist (View Comment):

    Here are the listings of the presidents who issued mor than 100 EOs per year. The second column from the right is the number per year (from wikipedia).

    26

    Theodore Roosevelt

    Republican

    1,081

    141-1050

    7.47

    144.7

    September 14, 1901 – March 4, 1909

    27

    William Howard Taft

    Republican

    724

    1051-1743

    4

    181.0

    March 4, 1909 – March 4, 1913

    28

    Woodrow Wilson

    Democratic

    1,803

    1744-3415

    8

    225.4

    March 4, 1913 – March 4, 1921

    29

    Warren G. Harding

    Republican

    522

    3416-3885

    2.41

    216.9

    March 4, 1921 – August 2, 1923

    30

    Calvin Coolidge

    Republican

    1,203

    3885-A-5075

    5.59

    215.2

    August 2, 1923 – March 4, 1929

    31

    Herbert Hoover

    Republican

    968

    5075–6070

    4

    242.0

    March 4, 1929 – March 4, 1933

    32

    Franklin D. Roosevelt

    Democratic

    3,728

    6071–9537

    12.11

    307.8

    March 4, 1933 – April 12, 1945

    33

    Harry S. Truman

    Democratic

    907

    9538–10431

    7.77

    116.7

    April 12, 1945 – January 20, 1953

    It appears generally that the number of EOs increased as the rate of government growth and bureaucracy increased. So perhaps they are inherent in government growth, and reducing government bureaucracy would ultimately reduce the utility and prevalence of EOs.

    Just eyeballing the figures, it seems more likely that executive orders are more common in wartime, accounting for the high figures for Wilson, FDR, and perhaps Truman.

    I don’t think so at all.  Most presidents throughout US history issued few EOs — well less that 100 per year — well less than 40 per year up until TR.

    The list above is sky high, and only 2 out of the 8 served during any major war.  In contrast, Lincoln during the Civil War, which was arguably a major war — 48 total, or  only 12 per year.

    Abraham Lincoln Republican 48 unnumbered 4.11 11.7 March 4, 1861 – April 15, 1865
    • #24
  25. Al Sparks Coolidge
    Al Sparks
    @AlSparks

    Globalitarian Misanthropist (View Comment):
    Here are the listings of the presidents who issued mor than 100 EOs per year.  The second column from the right is the number per year (from wikipedia).

    Globalitarian Misanthropist (View Comment):
    It appears generally that the number of EOs increased as the rate of government growth and bureaucracy increased.  So perhaps they are inherent in government growth, and reducing government bureaucracy would ultimately reduce the utility and prevalence of EOs.

    I found it interesting that Calvin Coolidge made the list.  He was known as the last president who was truly active in reigning in the federal government.

    But maybe that’s what his EO’s were about.  Telling government departments to stop, not do more.

    • #25
  26. Skyler Coolidge
    Skyler
    @Skyler

    kedavis (View Comment):

    The way I heard it, Executive Orders are directed to the Executive Branch, which the President is in charge of. So, an Executive Order could not – for example – be directed at Congress.

    Yes, that is exactly right.  

    Similarly, when the president makes an agreement with a foreign nation without having it ratified as a treaty, it is only binding on the executive branch and is just as easily over ridden by any other (or even the same) president.

    There is nothing inherently wrong with an executive order.  They will always exist.  What is wrong is the efforts to use administrative agencies to bypass Congress.

    • #26
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