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The drafters of the Constitution of the United States deliberately devised a system of government designed to prevent the consolidation of power by any one individual or group of individuals. The resulting document established a system of "checks and balances" among the three branches of government (legislative, executive, and judicial). Since the Constitution's ratification, there has been a continuous struggle between the legislative and executive branches for influence over the country's direction -- struggles that have grown especially intense when, as is often the case, the legislative and executive branches of government were controlled by opposing political parties. The result may be viewed by the public as deadlock, but that was the intent of the Constitution's framers: to prevent the emergence of a dictatorship. In addition to the three branches of government, there is also within democratic systems what is known as "the Fourth Estate," the free press that watches those in power and reports on their actions and on potential abuses of power. It is within the realm of the Fourth Estate that one of the greatest transformations in the exercise of power by the president has taken place. The press has always played an important role in reporting on government abuses and incompetencies, but it was the Watergate scandal of the early 1970s that fundamentally altered the balance of power in Washington, D.C. in favor of the public. The resignation of President Richard Nixon on August 9, 1974, the first in the nation's history, was the direct consequence of the unethical actions of his administration and was due entirely to the perseverance on the part of a small number of intrepid journalists, especially those working for the Washington Post and the New York Times. In the wake of Nixon's departure from the White House, the Fourth Estate was elevated in stature and has since then served as an even more powerful check on presidential power. That, then, is one way modern presidents are more constrained in their actions than those who came before them. Now, the advent of Barack Obama to the presidency, more than with any president since Nixon, has injected a major wrinkle on the restraints within which presidents function. Every president has had and has used what are known as Executive orders. Executive orders are, in a very real way, laws put into effect by the president alone, sometimes without the knowledge and often without the consent of the legislative branch of government. Executive orders carry the force of law, but are not the product of a deliberative, transparent process such as is the case with most laws. These instruments of power, then, pose one of the greatest challenges to the democratic system established in the Constitution.
To respond to Lorraine Caplan's post, while the system of checks and balances written into the Constitution certainly places some constraints on presidential power, it's also true that those restraints do not really limit presidential power to the degree originally envisioned. One of the reasons for that is the historical reluctance of Congress, even when controlled by the opposition party, to exercise its power of the budget to constrain the chief executive. The other failure on the part of the Framers of the Constitution was their inability to foresee the extent to which presidents would circumvent the democratic process in pursuit of their own agendas. This is where the question of the incumbent president's use of executive orders comes in. Yes, as Caplan correctly pointed out, other presidents signed a larger number of executive orders. No president since Richard Nixon, however, has abused presidential powers to the extent Barack Obama has. This educator spent 25 years in Washington, D.C. employed in the capacity of national security affairs. I never witnessed a president exploit executive powers for non-national security purposes to the extent experienced during the current presidential administration. Executive orders are often used to address pressing national security matters, such as Ronald Reagan's signing of Executive Order 12333 that, among other issues, banned the assassination of foreign leaders by agents of the U.S. Government. Executive orders were used by Presidents Clinton and Bush to place economic sanctions on corporations (foreign and domestic) and foreign governments that conducted business (e.g., selling weapons to hostile regimes) with Iran and North Korea. Executive orders have frequently been used -- sometimes misused -- to authorize covert military and/or intelligence activities. President Obama, however, has made very clear in stated intent and in practice his willingness to use such presidential powers to address virtually every issue of his agenda that runs counter to the majority of Congress. That is the point: not the question of numbers of executive orders issued, but the context of those orders and the extent to which they are used solely to circumvent the legislative process envisioned by the nation's founders.
Modern or of old, United States presidents have few enumerated powers. The few there enumerated are set forth in Article II, Section 3 of the United States Constitution, summarized as follows:
- Act as Commander in Chief of the United States military and state militias, which are now known as the National Guard, when called upon for national defense;
- May "require the Opinion" of the heads of the various executive departments, for example, the Cabinet heads;
- Has the power to grant pardons for any federal crime conviction;
- May enter into treaties with the advice and consent of the Senate;
- May appoint various officials such as ambassadors and Supreme Court Justices, with the consent of the Senate when the Senate is in session and without the consent of the Senate when it is recessed and there is a vacancy.
It should be very clear after examining that list that presidents really cannot do much at all, and in instances in which Congress refuses to pass legislation proposed by a president, presidents do turn to the use of executive orders, which may be issued concerning any agency or department that is part of the executive branch. This includes the Cabinet.
There certainly has been an increased use of executive orders in modern times, but a review of the data provided through the second link below shows that to call this an increasing trend is not accurate. Interestingly, there has only been one president who never issued an executive order, William Henry Harrison, most likely because he died in his 32nd day in office and simply never had the chance to.
It appears that the height of the issuance of executive orders took place during the administration of Franklin Delano Roosevelt, who issued 3,721 such orders. However, it should be kept in mind that Roosevelt was in office through three complete administrations and part of a fourth. The numbers thereafter fluctuate, with no one approaching Roosevelt's record, and with no pattern to suggest a continuous upward trajectory. For example, Eisenhower issued 484 such orders, while Barack Obama has issued 213. There seems to be a great deal of commentary today on the misuse and abuse of the executive order, but Obama's use of these is completely unremarkable and on the low side for this century.
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