Presidential use of the executive order, along with its relative, the executive agreement, has become the “very definition of tyranny” and an affront to limited government. The use of executive orders has dramatically increased over time. George Washington issued about one executive order a year. However, by the 1960s, Richard Nixon and Lyndon Johnson were averaging about 60 a year. The numbers went down under George W. Bush and Barrack Obama to about 35 a year. Just a few months into his presidency, Donald Trump has already issued some 30, according to the American Presidency Project (APP), as Trump, frustrated by Congress, has sought, as so many other presidents, to ignore Congress and use executive orders to govern unilaterally.
A short history of executive orders
Executive orders have been much debated since George Washington issued the first one. These orders, which were not specified in the Constitution, were initially used by presidents for several things: to designate certain lands for military use or for the disposition of public property or as presidential proclamations. Controversy began when presidents started issuing them under their powers as commander in chief to maneuver the nation into wars that were not approved by the public or by Congress. (For example, Trump has ordered U.S. forces into war situations and is now ready to take the nation to war with North Korea without any approval from Congress.)
Executive orders, along with the expansion of other executive powers, have given presidents the power to push the country into war without the consent of Congress or the people. These are presidential wars. They are wars not backed by a congressional declaration of war, they are often in contravention of public opinion. They have been some of the most disastrous wars in our history.
There are several types of executive orders that can have legal force. They include presidential proclamations that can be directed toward agents of the executive branch, those in connection with the president’s role as commander in chief, and those pursuant to congressional authorization.
Since the executive order power is not specifically granted in the Constitution, presidents issue them by virtue of their general power as head of the executive branch and commander of the armed forces. And here — as the powers have broadened, as presidents have attempted to preclude discussion on controversial issues — is the source of a bitter debate. The controversy is over the use, or misuse, of executive orders and agreements, which have become essential parts of an imperial presidency
Disagreement over executive orders by the last two presidents is nothing new. That’s because executive orders, executive agreements, and the general expansion of presidential powers can give presidents prerogatives as dangerous as those wielded by Charles I, whose violations of the British constitution and whose attempt to destroy the powers of Parliament led to the English Civil War. Charles began it by marching his soldiers into Parliament with orders to arrest some of its leaders, John Hampden and John Pym, who challenged the claimed prerogatives of the king by denying him funds. Charles said as king he was above the law. By the way, that is similar to a claim of presidential power made by former president Richard Nixon in an interview with TV talk-show host David Frost. (Nixon, facing certain impeachment, had resigned in 1973.)
Parliament, under Charles I faced up to this tyranny the way every legislature, parliament, or Congress can and should if it follows the principles of limited government and of government under law: Cut off money to the king, or the president, or the prime minister, until the leader obeys the meta-law, a nation’s constitution. Still, presidents have had many tools to ignore laws, especially in foreign affairs, which is one reason why America seems perpetually at war in the era of the imperial presidency.
Executive agreements, like their cousins, executive orders, are used in lieu of treaties. They are not subject to Senate advice and consent limitations. Then there is no need for Congress. It is the same approach the last two presidents have taken on immigration reform. The danger of these practices is that they have at times come to be defended by leaders of both major parties. They are similar to certain entitlements that can never be revisited by either party, even if they could be leading the country to unheard-of red ink, with entitlements potentially one day swallowing all government revenues, as detailed in the Kerrey-Danforth Entitlement Report of 2000. The foreign-policy precedents of executive orders and agreements, backed by the power of the modern president and unchallenged by the Congress and the courts, have become crushing.
Executive orders and agreements continue to be used when imperial presidents want to go around Congress and public opinion. But the frequent use of executive orders and agreements to avoid controversial issues is a mockery of one of the basic principles of the original Constitution: the separation of powers. It was designed as a protection against the abuse or monopolizing of power by any one official, party, or branch: The separation of powers was explained by, among others, Montesquieu in his book The Spirit of the Laws.
He wrote, “Il faut que le pouvoir arrete le pouvoir.” (It is necessary that power stops power.) That principle, now often violated by presidents who want to go to war or take other action with little or no discussion, was embodied in the original Constitution. The war power was “separated.” The president was the commander in chief. But the president could not legally take the country to war without Congress’s approval.
Separation eroded and tyranny enthroned
“The doctrine of separation of powers is fundamental to the American system,” writes Leanna M. Anderson in the Hastings Constitutional Review of 2002 (Hastings Constitutional Law Quarterly). In her article, “Executive Orders. The Very Definition of Tyranny,” she poses a series of disturbing questions about how this vital principle of liberty could be destroyed.
“The Constitution vests legislative power in Congress, judicial power in the courts, and executive power in the President. But what if the President were to usurp legislative powers? What if the common law made it almost impossible for citizens and state and local government officials to challenge the exercise of these powers?” she writes.
Executive orders are presidential actions that often have legislative effects, but such orders are frequently shielded from review in the courts, she warned. Worse than that, many courts don’t think they have any right to review illegal commander-in-chief actions, yet such actions result in presidential wars. To be sure, the courts are often blocking Trump’s executive orders. But what about what the actions of his national-security state? When will the courts block or stop an illegal war?
Courts have generally shied away from taking a position on the legality of presidential wars. They have tended to agree with Chief Justice John Marshall in the case that established judicial review, Marbury v. Madison. Presidential war powers, he held, were beyond the reach of the courts. The president, Marshall noted, is “accountable only to his country in his political character, and to his own character.”
Some 160 years later, Chief Justice Warren Burger also denied that the courts had jurisdiction over war cases. He said it was difficult to imagine “an area less suited for juridical action.” He warned that suitors seeking relief from the courts for the excesses of presidential war powers were wasting their time. Still, others have looked to the courts to stop presidential wars.
In 1990, some 55 members of Congress led by Rep. Ronald Dellums (D-Calif.), tried to prevent George H.W. Bush from launching the Gulf War without approval of Congress. They sought the intervention of a federal district court. The court turned them down because they represented only 10 percent of Congress. That implied, said John Lehman in the book Making War, that, if “a majority had joined, it [relief] might have been granted.” But if a majority of members of Congress had agreed with Dellums, then the Congress could have blocked Bush’s attempts to go to war by cutting off war funding. That is a critical factor in keeping wars going, as we will see later when will discuss America’s most unpopular war, the Vietnam War.
But the majority of Congress didn’t agree with Dellums. And, by the beginning of this century, the excesses of presidential warmaking had become blatant. They are accepted by some as an inevitable byproduct of an electronic age in which decision-making must be quicker and quicker.
Leanna Anderson was writing a decade after the Gulf War. Since then we continue to see more examples of presidents who think they can ignore Congress and act unilaterally in both domestic and foreign-policy issues. In the Gulf War of 1991, George H.W. Bush said he had the executive power to wage war without the approval of Congress. Although Congress narrowly authorized him to make the decision on whether to go to war, Bush claimed he had the right to wage such a war without Congress’s authorization. The president insisted that his administration, in its victory in that short war, had accomplished something else. It had, he said, put an end to “isolationism,” as he wrote in the book A World Transformed, co-written with former national security adviser Brent Scowcroft.
In celebrating the victory, Bush gave this justification for waging war: “Our nation can no longer afford to retire selfishly behind its borders as soon as international conditions seemed to recede from crisis, to be brought out again only by the onrush of the next great upheaval,” he wrote. “The was a pattern I was determined to break as we moved beyond the Cold War, and it is one we must continue to put behind us.”
But aside from the debate over whether the United States should be the policeman of the world and whether the president has the power to decide when to exercise that power unilaterally, Bush’s comments raised the issue of whether he and his successors, both Republican and Democrat, are determined to break the separation of powers by using executive orders and other implied executive powers. Bush and his associates — and their successors, both Democrat and Republican — continue to erode the protections of the separation of powers; they make war with little or no debate in Congress and certainly without a congressional declaration of war, as mandated by the Constitution.
That seemed not to be a serious concern for the Bush administration in the Gulf War. This “Congress is not needed to make war” sentiment was supported by his Defense secretary, Dick Cheney. Later serving as vice president under George W. Bush, Cheney also defended executive actions in the disastrous Iraq War of 2003. We will later see that he offered his own rationale for the president to make presidential war.
The original Constitution was written by men who were often students of history, which George H.W. Bush certainly is not. Most feared the power of imperial rulers. The power of Louis XIV, Charles I, and Roman emperors, among others, was a danger to liberty, they believed. In writing the Constitution, they called for the division and subdivision of powers. The president was the commander in chief, but only Congress could declare and fund war. This idea, that all powers should be divided and limited, is one of the basic principles of government in a free society. The tradition of limited government, of the subdivision of power, is based on centuries of tradition and continued to be relevant in the 19th century.
A warning from a friend of liberty
“The first lesson of liberty is that liberty depends on the division of power,” Lord Acton wrote in letters to his friend British Prime Minister W.E. Gladstone and his daughter Mary in the Victorian Era. Acton, the great multilingual opponent of tyranny, also affirmed that “la liberte, c’est la remedie de tous les maux.” Liberty is the cure of all that is bad, said Acton, as quoted in a book by Mary Drew, Acton, Gladstone and Others.
These ideas of liberty, of limited government, of government under law, of the Ninth and Tenth Amendments to the Constitution — which reserve all unenumerated rights to the people and the states — divide and subdivide power as a vital protection of liberty. Yet this principle seems forgotten when Americans debate actions of the imperial presidency across partisan lines, often ignoring the bigger issue: the fight to restore the idea of government under law. The latter is the belief of philosophers of liberty from Cato to Kant to Acton to Hayek.
Why is the principle of the separation of liberty endangered today?
Most Americans, debating the use of executive orders and their relationship to the imperial presidency, ignore history and focus on party. They don’t seem to care about the bigger issue: the protection of liberty. Democrats tend to object to the abuse of executive power by Trump. Republicans, sensitive to its use by Obama, didn’t understand that it is an institutional, not a partisan, problem.
The idea of a government under law was once alive and honored in the United States. When President U.S. Grant tried to act without Congress, he was stopped by a group of senators led by Charles Sumner and Carl Schurz, Republicans opposing the imperial overreach of a Republican president. They fought against the imperial presidency in the crisis over the acquisition of and intervention of U.S. forces in Santo Domingo (today’s Dominican Republic) in 1870 without Congressional approval. Here was Schurz, as a U.S. senator, speaking against Grant’s efforts to send the Navy to Santo Domingo:
Sir, that simple provision of the constitution that Congress shall have the power to declare war cannot by any rule of construction be interpreted to mean anything less than Congress, and not the president alone, shall define the contingencies in which the belligerent powers of the United States are to be used.
As Robert L. Beisner pointed out in his book Twelve against Empire, the Anti-Imperialists of 1870–1900, the fear that imperialism would lead to “a ruinous end for either American principles or the American constitutional system remained the cardinal point of Schurz’s case.”
This article was originally published in the December 2017 edition of Future of Freedom.