Executive Orders While Sometimes Necessary, Erodes Concensus Building
In his State of the Union speech to Congress last month, President Obama drew widespread attention for pledging to use his executive authority to advance his priorities. He insisted he intends to act with or without Congress, and listed well over a dozen actions he plans to take by executive order.
“Wherever and whenever I can take steps without legislation to expand opportunity for more American families that’s what I’m going to do,” he said.
Plenty of people were happy about this. The speech was applauded by pundits who have given up on Congress and believe the only way to move forward is by strengthening the presidency. Our political system, they say, is weighed down by too many interest groups, too many checks and balances, and too few avenues for circumventing a Congress that is both polarized and highly susceptible to the wishes of its donors. The present government is paralyzed, they believe. A stronger presidency would get Washington moving again.
As you’d expect, others are alarmed by this approach. The President, they say, is trampling on the constitutional separation of powers, grabbing powers for himself that were meant to be shared with Congress. They point out that the Constitution gives Congress a primary role in making policy.
The problem with this debate is that it’s missing a key part of the equation. Yes, our system needs a strong presidency. But it also needs a strong Congress. We are best off as a nation when the two consult, interact, and work together as powerful branches.
In truth, every president in recent memory has expanded the power of his office and been accused of a power grab. They’ve had plenty of motivation to do so. The modern world demands quick, decisive action. Americans tend to support presidents who act forcefully. Congress is complex, convoluted, and hard to work with; it is far easier for an administration to act on its own. Even members of Congress often defer to the President, counting on him to address issues they don’t want to tackle or can’t agree upon.
And presidents have wielded executive orders to great effect. Abraham Lincoln’s Emancipation Proclamation, FDR’s Works Progress Administration, John Kennedy’s Peace Corps, affirmative action under Kennedy, Lyndon Johnson and Richard Nixon, Ronald Reagan’s enshrining of cost-benefit analysis as the key to regulatory review — all came about through executive orders.
Yet there are limits to this approach, because in the end there is no substitute for legislation. Presidents cannot write a budget, raise the minimum wage, or reform entitlements by themselves. Because executive orders lack the permanence and force of law, they can be hard to implement and can be summarily cancelled by a later president. They are more subject to legal challenge than legislation. And most important, executive orders are a unilateral exercise of power and do not benefit from a process of consensus-building and consultation with voices independent of the President’s.
Consensus-building can’t happen in a vacuum, however. Without a strong Congress able to find its way effectively through the thickets of lawmaking, this President and his successors will surely continue to address the nation’s challenges on their own. The question is, how far down that road can we go before Congress becomes irrelevant, with too much power — and too much potential for the abuse of power — in presidential hands? Like our founding fathers, we should be skeptical of the concentration of power.
Politico recently detailed a spate of executive orders planned by this administration, which would affect everything from how power plants operate to how we commute to how the environment will be regulated. Taken together, they will “push deeply into everyday life” for Americans, the article noted.
Whether a president oversteps his authority with these and other executive orders is inevitably colored by whether you agree with the proposed order. But my point is different. It is that the march toward presidential unilateralism, whether the president is a Democrat or a Republican, dangerously undercuts our constitutional system.
Before we give up on the separation of powers, let’s try strengthening Congress. This may not be the easy route, but if we don’t take it, representative democracy itself is in doubt.
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.
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