A president-centric nation was not part of the plan by the Founders
By Charles Mitchell
Slowly but surely, the script has been flipped on the division of government duties created in the U.S. Constitution. A capstone moment came in January when President Donald Trump actually tried to cancel a basic provision in the nation’s operational document. He’s not the only president to test the powers of the presidency - not by far – but signing more than 100 executive orders during the first week of his second term and a daily dozen since has to be a record.
Almost everything in news media tilts anti-Trump or pro-Trump. This is not that. It’s about how the game plan for the nation is not what it was, specifically related to executive orders.
To illustrate, the first 25 presidents signed a total of 1,262, averaging about 50 executive orders each. The next 21 presidents, ending with Joe Biden, signed a total of 13,122, averaging 570 each. That’s more than a 10-fold increase.
Executive orders are, themselves, an invention. The words don’t appear in America’s basic law that defines who does what. Instead, it has been deemed implicit based on Article I, Section 8, which says, “The Executive Power shall be vested in a President of the United States of America.” So, it follows that chief executives may issue executive orders. George Washington, in office eight years, signed an average of one per year.
As any 12-year-old who passed 6th grade civics will tell you, there are three branches. The legislative branch is to make laws, the judicial branch is to interpret laws, and the role of the executive branch is to oversee and manage putting laws into action.
The surge in executive orders is real, but context is needed: Most are frou-frou. They are more like proclamations, which presidents can also issue. They are a fancy way a president can emphasize a topic as important, not much more. Most do not make any new law, but many – especially in recent years – have crossed a line. When that happens, presidents have sometimes been reminded by courts that Americans ridded themselves of being governed by one-person decrees back in 1776.
For example, Biden’s signature in 2022 on a vast student loan forgiveness fiat was an overreach. It was 2022 and mid-term elections were coming up. Biden signed what many saw as a vote-buying order to move money authorized by Congress for one purpose to provide up to $20,000 in debt relief for millions of borrowers. The Supreme Court (after the election) invalidated Biden’s order, finding he clearly exceeded his authority.
As for Trump, his executive order to cancel “birthright citizenship” was almost instantly voided by a U.S. District Court. The 14th Amendment says, “All persons born or naturalized in the United States … are citizens of the United States….” Presidential authority might have wriggle room, but it definitely doesn’t include reversing an explicit provision in the Constitution.
In his first term, Trump issued 220 edicts, 72 of which were reversed by Biden who issued 162 during his term, almost all which have been canceled, again, by Trump who reinstated a lot of his orders Biden had canceled. So, how did we get to the ping-pong point where law and order has expanded to law BY order? There were at least four pathways.
1. Civil Rights. After 1954 when the Supreme Court ruled assigning students to public schools by race was unconstitutional, several states, most of them in the South, did nothing. Citizen pressure on federal authorities followed and the federal government was forced by public opinion to enter the realm of education, which had been under state management. More federal laws followed related to housing, employment and voting – all because states refused to enforce desegregation.
2. The Purse. During this same era, members of Congress learned to attach strings to federal grants states increasingly sought. The choice states faced was to agree to a uniform national age for voting, drinking beer or whiskey, buying cigarettes, firearms or ammunition – or give up billions of federal dollars. States opted to keep the money, so national standards replaced state standards.
3. The Media. By 1960, most people were getting their information from television. National networks, quite naturally, covered national stories. The influence of local newspapers and television fell to second place behind big stories such as the aforementioned Civil Rights Movement, Vietnam, Watergate…. In turn, the networks focused more attention on the White House because it’s easier to keep up with one person than 535. The increased attention resulted in an increase in presidential power, or at least the perception of increased power.
4. Gridlock on Capitol Hill. This has been the big one. Since the start of this century, members of the U.S. House and the U.S. Senate have been at war with each other. It has been a war of words, talking points, photo ops and keeping donors happy. Take immigration as one example. No Democrats and certainly no Republicans advocate open borders, dismantling Customs or doing away with passports. Everyone seems to agree there should be a process to enter the nation legally, and that it should be enforced. Why can’t that be done? Because neither party will allow the other party to get credit for anything.
So, this is where we are, edging back toward more of a monarchy and less of the balanced operational script ratified in 1789.
On one wall of the official library of former President Harry Truman is a simple chart listing powers a president has and doesn’t have. It says presidents don’t have the power to “make laws” or “decide how federal money will be spent.”
Maybe a copy of the chart should be on the wall of the Oval Office, too.
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Charles Mitchell is an associate professor in the School of Journalism and New Media at the University of Mississippi and a member of the Overby Center panel of experts.