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The power of the pen: Obama and the history of executive orders

Cover Design by Andrew Nunez (91484)
Cover Design by Andrew Nunez

You’ll probably recognize from civics class years ago the opening words of the Declaration of Independence as a statement of urgent action undertaken when practically no means of reasonable cooperation was available to address an immediate crisis.

President Barack Obama entered office six years amid one of the nation’s most dire economic calamities. Since then he has opted frequently to use executive orders to bypass a stalled and sometimes uncooperative Congress to steer the nation toward what he considers a better social dynamic.

He has since received poor marks from the House of Representatives, from many of the nation’s governors and, since the beginning of summer, from the American people who have consistently polled unfavorably in regard to his handling of domestic, foreign, economic, social and various strategic American policies.

Critics have called executive orders “legislation by other means,” while supporters defend them as a necessary tool for leading the country especially in the face of a Congress either unwilling or unable to make tough choices. Article II, Section I of the United States Constitution contains a vague reference to executive orders, providing the president with the power to “take care that the laws are faithfully executed.” And like Article I, Section IX, the incredibly vague reference to American slavery (i.e. “The migration or importation of such persons as any of  the states now existing …”), there is really no definitive language within the Constitution to explain exactly when and where the president can exercise this singular option of executive power. Sometimes he has to wing it.

President Obama has used his executive orders to push through a number of issues. Last spring, he directed the Department of Justice to extend family leave to same-sex couples. Previously, he raised the minimum wage for federal contractors, and has directed a halt to deportations for many children in the U.S. illegally. Obama is exercising his privilege of executive orders because of a sharply divided Congress. Democrats on Capital Hill insist that their efforts to work things through the congressional system are largely met with rebuke from Republicans. GOP congressmen suggest that Obama has violated the constitutional limitations on the powers of the presidency, and continues to circumvent the law by invoking his powers.

Acting ‘whenever, wherever’ he pleases

Obama vowed in his 2014 State of the Union address that he intended to bypass Congress “whenever and wherever” to  fulfill most promises he made while campaigning in 2008 and in 2012. A Washington Post/ABC News poll in January found that 52 percent of the American public approves his use of executive orders; along party lines, 69 percent of democrats approve of these actions, while 63 percent of republicans disapprove.

The scope of the president’s power to issue written directives is very broad. In short, the White House may issue or execute whatever written directives, orders, guidelines (such as prosecutorial guidelines or nondiscriminatory enforcement policies), communiqués, dispatches or other instructions he/she may deem appropriate. In sum, the president has broad discretion to use written directives when he/she is lawfully exercising one of many constitutional or statutory delegated powers. The executive branch has several legitimate uses of executive power, among them acting as: (1) Commander in Chief; (2) Head of State; (3) Chief Law Enforcement Officer and (4) Head of the Executive Branch.

There have been roughly 15,000 executive orders issued since George Washington ordered an end to the Whiskey Rebellion in 1794. Obama in six years has issued 184. House Speaker John Boehner has said throughout 2014 that he has become exasperated by President Obama’s frequent use of the executive order to circumvent Congress. He has threatened a lawsuit: “You know the constitution makes it clear that the president’s job is to faithfully execute the laws, and in my view the president has not faithfully executed the laws,” Boehner said this summer. “If you look back over the past 235 years of our history there’s been movement (working relationship) between the inherent powers of the legislative branch, and what we’ve seen clearly over the past five years is an effort to erode the power of the legislative branch.”

The House this year has passed two bills aimed at curbing executive orders by the president, neither of which have gone anywhere in the senate.

The most famous executive order was Abraham Lincoln’s Emancipation Proclamation in 1863. The order did not free slaves in the border states of Kentucky, Missouri, Maryland, Delaware and West Virginia nor did it apply to states that permitted slavery but had not succeeded from the Union. All states that ceased hostilities and returned to the Union by Jan. 1, 1863 could continue to practice slavery.

By the dawn of the 20th Century, the executive order had become more popular among presidents. The modern executive order began effectively with Theodore Roosevelt who with Woodrow Wilson and Calvin Coolidge issued a combined excess of 4,000 such directives. Wilson’s signature is associated with one of American history’s worst decisions in terms of civil rights. At the suggestion of his Secretary of the Treasury William G. McAdoo, and Postmaster General Albert S. Burleson, Wilson in 1913 implemented federal segregation laws by vigorously defending new racial discrimination practices implemented by each cabinet head.

FDR: The arrogance of power?

If Congress were to rescind the 22nd Amendment allowing President Obama to campaign and win another two terms in office, he still would not top Franklin Roosevelt who signed an astounding 3,522 executive orders spanning just over 12 years in office. When Roosevelt took office in 1933, the result of the Great Depression saw unemployment reach 25 percent nationally, commodity prices drop by 60 percent and the stock market lose more than 85 percent of its value. An executive order in 1935 enacted the Works Progress Administration which in eight years oversaw the construction of more than 600,000 roads, 125,000 bridges, 8,000 parks and 850 airports. The WPA also put artists back to work with 2,500 murals, 17,500 pieces of sculpture and 34 new orchestras. But like his predecessor Wilson—whom he served as assistant Secretary of the Navy—Roosevelt in February 1942 signed the worst executive order in modern American history (No. 9066) authorizing the internment of tens of thousands of Japanese Americans and resident aliens of Japan at the beginning of World War II.

“The expectation is that they all do this,” said Ken Mayer, a political science professor at the University of Wisconsin-Madison and author of the 2002 book ‘With the Stoke of a Pen: Executive Orders and Presidential Power.’ “That is the typical way of doing things.”

Roosevelt frequently used executive orders to create agencies without congressional approval. Congress in 1944 passed a law prohibiting an excess of this practice, but Roosevelt’s seemingly insurmountable power allowed him to use the executive order to take possession of defense plants, automobile plants, aircraft companies, shipping firms, steel mills, oil refineries, tire and rubber manufacturers etc. to guarantee near-unlimited production of vehicles, aircraft and maritime vessels during World War II.

In 1948, President Harry Truman sent to Congress a 10-point proposal on extending civil rights to African Americans. The plan included an order to desegregate the military and to phase out all-Black units that had existed dating back to the Civil War. Executive order No. 9981 states: “It is the policy of the president that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.” When Truman desegregated the armed forces, he was exercising his authority as commander-in-chief to assign individual soldiers lawfully in his command to units that he deemed appropriate. Truman also had a constitutional duty to stop government racial discrimination. Even if Congress wanted to override the desegregation order, the constitution does not provide the legislative branch authority to tell the president how to detail or utilize the soldiers already in his command.

By 1953, 95 percent of Black service members had been integrated into previously all-White military units. Similar to the emergence of the Tea Party movement shortly after Obama’s election, Southern Democrats were enraged at Truman and in 1948 formed the “Dixicrat” party with South Carolina Sen. Strom Thurmond as its presidential nominee that year.

Civil rights protections

President John Kennedy in 1961 signed executive order No. 10925 requiring government contractors to “take affirmative action” to ensure non-discriminatory employment practices, while President Lyndon Johnson, in 1965, signed executive order No. 11246 that prohibited discrimination in employment decisions based on race, color, religion, sex or national origin. And despite his staunchly conservative principals, President Richard Nixon in 1969 continued the non-discriminatory language of executive orders pertaining to civil rights by prohibiting discrimination among civilians employed by the armed forces and by federal contractors who benefited from federally-assisted construction contracts.

Courts seldom rule on the constitutionality of executive orders . Among the few times the Supreme Court has ruled against a sitting president was in the case of U.S. vs. Nixon in 1974.

Throughout the storied history of presidential executive orders, only about two dozen have dealt specifically with the spirit of the 14th Amendment. There have been six executive orders in relationship to Title 8 of the Civil Rights Act of 1968. All of these executive orders banned discrimination in private, public and federal housing, as well as federal programs as they relate to civil rights protections. Other laudable directives have included Johnson’s Equal Employment Opportunity directive in 1965; Environmental Justice Among Minority Populations (Bill Clinton in 1994); American Indian and Alaska Native Education (Clinton, 1998); Educational Excellence for Hispanic Americans (George W. Bush, 2001); Presidential Board of Advisors on Historically Black Colleges and Universities (Bush, 2002) and Support for Tribal Colleges and Universities (Bush 2004).

President Obama has taken heat for some of his executive orders, particularly those pertaining to civil rights and social advancement for women and persons of color. Among the executive orders President Obama has issued are:

—Fair pay and safe workplaces;

— Minimum wage for contractors;

— Improving access to mental health services for veterans, service members and military families;

— White House Initiative on Educational Excellence for African Americans;

— White House Council on Strong Cities, Strong Communities;

— Promoting Excellence, Innovation and Sustaianability at Historically Black Colleges and Universities;

— Establishing White House Office on Health Reform; and

— White House Council on Women and Girls.

Obama has received his most vociferous criticism in his efforts to improve the lives and posterity of African Americans. In the fall of 2011, Obama launched his “We Can’t Wait” campaign which has included his “My Brother’s Keeper” and “Promise Zone” initiatives. He has unveiled dozens of policies via executive order such as job creation in the inner city; curtailing prescription medicine shortages; more health assistance to mentally ill persons; several gun control measures; and even the adoption of fuel efficiency standards.

‘Can’t wait for Congress’

“We’re not waiting for Congress,” Obama said in 2011. “I intend to do everything in my power right now to act on behalf of the American people, with our without Congress. We can’t wait for Congress to do its job. So where they won’t act, I will.”

Executive orders, however meritorious among some presidents, are often fleeting. They generally don’t settle a political divide, and the next president, the next Congress or the next court may overturn them. Take the Mexico City Policy for example. In 1984, President Ronald Reagan through executive order banned federal money from going to international family-planning groups that provide abortions. Bill Clinton reversed the policy. George W. Bush reinstated it. Obama canceled it.

“I think President Obama has been as equally aggressive as President (George W.) Bush, and in fact he has sometimes used the very same language to suggest the he would not obey congressional laws that intrude on his commander-in-chief power,” said John Loo, a law professor at U.C. Berkeley. Loo wrote the legal opinions that supported the Bush Administration’s expansion of presidential power after the 2001 terrorist attacks.

Debate regarding amnesty for illegal immigrants—which for all intents and purposes will not be decided by Congress this year—has probably drawn the most ire among Obama’s detractors whether they voted for him or not. It could be fair to say, however, that not since Lincoln considered his Emancipation Proclamation has a president considered a more sweeping change to membership in the American community than the relief for undocumented immigrants that President Obama is considering. The idea behind Obama’s proposed action on immigration reform could be akin to that which drove Lincoln’s action, but it remains a far stretch to compare chattel slavery to the immigration of generally poor Mexican and Central American persons to American soil. Obama’s opposition, however, is reportedly latching on to any proposal they disagree with to tarnish his historical reputation, says George E. Curry, president of the National Newspaper Publisher’s Association.

“It doesn’t get more ridiculous than this,” Curry wrote in July. “Unable to repeal what they call ‘Obamacare,’ House Republicans are moving faster than the lips of an auctioneer on crack to sue the president because he is making it easier to comply with what everyone except anti-Obama republicans recognize as law of the land. His executive actions have stopped the deportation of immigrants (children), has compelled power plants to reduce their emissions, raised the minimum wage for federal workers, extended rights for same-sex couples and have impacted gun control. Critics who say he is overreaching should brush up on high school civics.”