Executive Power Gone Wild?

By Clare Buckley


Immigration reform. Minimum wage. Abortion funding. What tool allows Presidents and some Governors to unilaterally make policy changes in these and other areas that have the full force and effect of law without a single vote by a lawmaker? That tool is the Executive Order. Before your eyes glaze over, let me explain why you should care.

Executive Orders have the power to affect lives.

Case in point. Immigration reform has stalled in Washington, DC for years. Yet in 2012 and 2014 President Obama issued Presidential Directives (similar to Executive Orders) giving undocumented immigrants brought to the U.S. as children a chance to work in the U.S. legally and not get deported and extended some of those protections to their parents. Court challenges to the 2014 directives are still pending. In January 2017, President Trump issued an equally provocative Executive Order that banned those traveling from seven Muslim countries from entering the U.S., which he subsequently repealed and replaced with a “watered down” Executive Order, now also being challenged in court. These executive orders, while still in flux, have affected millions of people in the U.S. and abroad.

Executive Orders allow presidents and governors to direct agencies under their control to take certain actions. Presidents get their power to issue Executive Orders from the U.S. Constitution and in some cases from federal statutes. According to a compilation by the National Archives, President Trump’s most recently issue EO is number 13,773 but there are many more because counting EOs only started in the early 20th century. President George Washington issued the first one. President Roosevelt issued the most at 3,728 (but he served four terms as president). The most four recent presidents to serve two terms (Obama, G.W. Bush, Clinton and Reagan) issued in the 275 to 400 range.

The Constitution puts limits on a President’s power to issue executive orders. Congress can change Executive Orders by passing a bill but the President can veto the bill, which requires a supermajority of both bodies to override.

The old adage “easy come, easy go” applies to Executive Orders. It only takes a stroke of a pen to issue an EO but the same is true for repeal. An Executive Order that bars federal funds going to overseas organizations that perform abortions originally signed by President Reagan has been rescinded twice (by Presidents Clinton and Obama) and reinstated twice (by Presidents G.W. Bush and Trump).

Significantly for those of us who work in the states, many Governors can issue Executive Orders, through powers derived from their respective state constitutions, statutes, or case law. The National Governors Association has compiled a list of those powers in each state.

As a long time Vermont State House observer, I couldn’t help scratching my head this past spring after the Vermont House voted to reject and kill Vermont Governor Phil Scott’s Executive Order to merge the departments of liquor and lottery in Vermont. While that topic is mundane, the process left me perplexed. In Vermont, when a governor issues an Executive Order to reorganize government that is not consistent with the law, the Executive Order becomes law in 90 days unless one body, either the House or the Senate, rejects it by majority vote. This process is set in Vermont statue (wouldn’t the US Congress love to have that power over the President?). During the debate, a lawmaker raised whether the rejection by one body alone is constitutional. Good question but it has yet to be tested in the courts.

Presumably governors in states whose power is derived from a state constitutional provision would have broader powers to issue Executive Orders than in states like Vermont where the governor has only implied or statutory power to do so.

So getting back to why anyone beyond a policy wonk should care. With gridlock in Washington, D.C. and many state houses around the country, we may see the President and some governors push the limits of the Executive Order beyond the mundane to the edges of pressing public policy matters to get what they want. That can affect all of us.