In this, the most comprehensive study to date of the uses American presidents have made of executive orders, Kenneth R. Mayer, professor of political science at the University of Wisconsin at Madison, focuses on eighty-eight specific executive orders and discusses thirty-two of them in considerable depth and detail. He has chosen for his scrutiny a representative sampling from a broad range of presidential administrations. His greatest emphasis is on the use of such orders by presidents from Franklin Delano Roosevelt, who served from 1933 until his death in 1945, and the presidents that followed him up to and including Bill Clinton.
Mayer uses William Safire’s definition of executive order from Safire’s Political Dictionary (1980): “Action that can be taken by a Chief Executive without legislative action.” Executive orders exemplify a behavioral paradigm first articulated by Richard Neustadt in Presidential Power(1960), a book that influenced the presidency of John F. Kennedy considerably and was influential in the administrations of succeeding presidents.
The most influential presidents are characterized by their persuasive ability. In Neustadtian terms, such presidents are leaders actively involved in political bargaining. Mayer cites Franklin Delano Roosevelt and Harry S. Truman as examples of leaders in the sense that Neustadt defines effective leadership. He ranks Dwight D. Eisenhower the lowest of recent presidents in demonstrating this quality.
Executive orders have often been viewed as the means presidents have of accomplishing on their own what Congress refuses to give them. Presidents who are dealing with congresses dominated by the opposing party routinely find it necessary to resort to this method of getting things done and of accomplishing their political aims.
One of the major strengths of the United States Constitution is that it sets up a system of checks and balances and clearly articulates the separation of powers that the founding fathers envisioned through the establishment of relatively autonomous legislative, judicial, and executive branches of government. Presidents who do not use executive powers judiciously may well overstep—and in notable cases have overstepped—the limits placed upon them by the Constitution. A number of political scientists regard the wholesale use of executive orders as a weakness, a failure on the part of a chief executive to use persuasive skills to influence Congress.
Presidents have often used executive orders because they had no alternative. Notable among the use of such orders were those relating to the integration of the South and to the implementation of affirmative action. Presidents from Harry S. Truman to Lyndon Johnson worked to bring about a new society in which racial discrimination would not be countenanced officially. To overcome some legislative tactics, such as the filibuster, aimed at scuttling the implementation of legislation to assure all citizens equal rights under the Constitution, presidents between 1945 and 1980 frequently used executive orders.
Mayer notes that Franklin Delano Roosevelt was the modern president who made the greatest use of executive orders. He fails to mention, however, that Roosevelt served as president during the United States’ involvement in World War II (1941-1945) and that he also held office longer than any other U.S. president ever had or ever would, being elected to four consecutive terms as president, the last of these terminated by his death in 1945, only months after his inauguration.
Major questions of constitutional interpretation arise regarding the legal bases for presidents to issue executive orders. On one hand, the legal ramifications can be disputed endlessly. On the other hand, the legal considerations are often overwhelmed by the political considerations surrounding the exercising of this presidential privilege. Many argue that gradually the president has become much more powerful than the framers of the Constitution envisioned when they drew up that document. As society has gained in complexity, the dynamics existing between presidents and the law have become more complicated than the founding fathers foresaw.
Mayer laments that, before 1895, there was no systematic method for gathering and cataloguing executive orders. In that year, the federal government began printing such orders in “slip” form so that they could be collected in loose-leaf binders. Ten years later, the Department of State established a repository for executive...
(The entire section is 1848 words.)