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.