Presidential Power vs. The People

By Debbie Wuthnow

A Primer on Executive Actions and the People’s Recourse

The current administration has been making headlines since January 20 for the number of Executive Actions taken. The Biden administration has issued 37 executive orders, 10 memoranda, and 17 proclamations during his first two months in office – plus rejoining the Paris Climate Agreement. If the pace continues, he will certainly eclipse Trump’s first year of executive actions.

So, what constitutes an executive action? Is the current administration abusing the powers? If so, do we, as voters, have any recourse?

WHAT ARE EXECUTIVE ACTIONS?

Presidents have several important tools through which they can take executive action. Let’s take a look at the top three.

#1 Executive Orders

Executive orders are directives from the President that manage operations of the federal government – often by directing federal agencies on how to implement the law.

The constitutional basis for an executive order is found in Article II where the President “shall take Care that the Laws be faithfully executed.”

Though they often have the same effect as federal law, an executive order is not law. Congress can pass laws to override executive orders, and executive orders can be revoked by the next President with the stroke of a pen. The chart below shows the number of revocations in past years, and we are witnessing many as Biden’s executive orders rescind those put in place by President Trump.

Executive orders have been used since George Washington. They are generally first announced by the White House press office but are kept and published in the Federal Register and in the National Archives and Records Administration.

Executive orders have been used for such diverse purposes as: to respond to national crises like the Iran hostage situation, for civil service and contract agreements, and for restricting entry into the United States.

#2 Presidential Memos

Presidential memoranda are documents issued by the president to manage the federal government. They are very similar to executive orders but do not have to include a justification of presidential authority.

Government offices are not required to track and publish memoranda. They are therefore not contained in the Federal Register and are sometimes difficult to trace. In the hierarchy of legal precedence, they are third in line after proclamations and executive orders.

Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) is one of the most notable – and controversial – presidential memoranda.

#3 Presidential Proclamations

Presidential proclamations are announcements of policy from the President. Though some may be honorary or ceremonial, they do carry the weight of law if they fall within the scope of presidential authority.

One of our nation’s most dearly held traditions came through Presidential proclamation -- the declaration of a National Day of Thanksgiving, which was issued on October 3, 1789.

In 1863, the proclamation was anything but traditional as Lincoln issued the Emancipation Proclamation freeing three million slaves held in Confederate territory.

The list of proclamations is kept in the Federal Register.

IS THE CURRENT ADMINISTRATION ABUSING POWER?

As the American Presidency has progressed, so has the use of executives actions. The use seems to be becoming more politically driven and used to push through each side’s most important policy items. Thus, the political Party not in power tends to view the Party in power as having abused the system.

Possibly a better way to assess the actions is to look at each action on its on merit and decide whether it falls within the framework of what is illegal or improper.

For instance, according to The Heritage Foundation, “conservative scholars argue that Democrats Clinton and Obama routinely overstepped their authority to issue such directives in arenas where Congress had not acted.”

We can certainly look back and see that of Franklin Roosevelt’s 3,721 executive orders, the Supreme Court overturned 5 of them, including the order which resulted in mandating internment of Japanese Americans – clearly they overstepped their authority.

DO VOTERS HAVE ANY RECOURSE IN BETWEEN PRESIDENTIAL ELECTIONS?

The short answer is a resounding, “Yes.”

Recourse #1: Congress

As mentioned above, executive actions are not automatically law. Only Congress can pass legislation – and only YOU can elect them.

If you dislike any actions taken by the current President, do not fear – races for 2022 have already begun, and Congress can pass laws to override executive actions. The vote must be veto-proof (a two-thirds vote rather than a simple majority), but it’s not as uncommon as one might think. Just since the turn of the century, Congress has overridden: four of George W. Bush’s vetoes, one of Barack Obama’s, and one of Donald’s Trumps.

Another action not mentioned as often has to do with the purse strings. An action could be effectively thwarted if Congress were to simply deny necessary funding to carry out the action.

We can expect the tide to turn dramatically by the 2022 elections, and every day between now and that election makes a difference.

The people do have the power, we just must wield it effectively.

Recourse #2: The Courts

The second way we can affect executive actions before the next presidential election is through the courts. The decisions can go all the way to the Supreme Court but often begin in federal District Court – in which case the judge may have been appointed by a prior administration.

Temporary restraining orders (TRO) are also often used, and according to the American Bar Association, one of the criteria that must be met for a judge to issue the order is “public interest favors granting the TRO.”

Recourse #3: State Attorneys General

Finally, state attorneys general have become a line of defense against executive actions. As the top legal officers of their state or territory, they act as the “People’s Lawyer” for the citizens of the state.

In the 2007 case of Massachusetts v. E.P.A. (59 U.S. 497, 519-21), states were allowed “special solicitude” when suing the federal government. Since that time, attorneys general have brought more and more lawsuits against Presidential actions – perhaps most famously against Obamacare. Successful actions were brought against Obama’s Clean Power Plan, Clean Water Rule, and immigration and deportation policies. Current attorneys general are preparing to play the same role to counter the Biden administration’s actions on climate change, health care, immigration, and spending. (Source: https://www.jdsupra.com/legalnews/state-watchdogs-as-biden-takes-office-7149235/)

30 attorney general seats will be on the ballot in 2022, and filing for these offices starts in less than nine months.

Far fewer people generally vote in the lesser-known statewide races than for President or even for state Governor. These seats are critical to serving as a stop-gap measure to executive overreach.

Remember, all bad government starts at the ballot box – and can end there, too.

Never give up. We must remember the power that is in our hands, and we must set out now to be more involved than ever before.


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