Executive Orders and Why They Matter
Almost two months ago US President Joe Biden began his term in office by issuing a flurry of executive orders (EO). In the first week of his administration alone Biden signed a total of 24 EOs, more than any other president in modern US history. Some US media pundits were quick to decry the new President’s actions as “dictatorial”, and as an attempt to institute rule by decree.
However, reviewing the records of past US presidents highlights that this is in no way a new phenomenon. Former President Trump, who signed the most executive orders per year of any president since Jimmy Carter, was criticised relentlessly for implementing this power so regularly. Why then is this exercise of executive power under the EO, derived from the US constitution and utilised by both sides of politics, considered so controversial?
Simply put, an EO is a directive issued by the President of the United States, used to manage federal agencies with respect to how they use their resources or implement the laws adopted by Congress. Importantly, EOs are not considered legislative instruments, and therefore have strict limitations — including their ability to be overturned by Congress or challenged in the courts. Rather than creating lasting laws, EOs are considered a tool of executive power that has evolved to fill gaps in federal laws, bypass a hyper-partisan legislature, and drive action during periods of national emergency.
In Biden’s case, the vast majority of his initial executive orders were issued in response to Covid-19 — including requiring masks to be worn on all federal property by federal workers, establishing a “COVID-19 Health Enquiry Task Force”, and instructing federal agencies to boost food aid and improve the delivery of stimulus checks. He also signed a number of EOs which reversed orders issued by the previous Trump administration such as revoking the travel ban targeting primarily Muslim countries, and repealing the ban on transgender people serving openly in the U.S Military.
While the contents of Biden’s EOs have drawn the most criticism from conservative media, it’s important to acknowledge that his actions follow a long history of executive reversals across previous administrations. During Trump’s first week in office he used the executive power to repeal Obamacare and a issued a Presidential memorandum to stop funding for NGO’s that support or perform abortions abroad — the latter being a reversal passed between democratic and republican presidents since the 1980’s.
Regardless of partisan hyperbole, the majority of EOs and other presidential documents, including proclamations and memoranda, adhere to the pattern of historical precedent. For such presidential directives to stand, they must exist within the defined limits on power established under the Constitution and enforced by Congress. This is illustrated where Congress creates a law granting presidential power to make orders in service of that law, or by the Constitution. Where Article 2 of the US Constitution establishes the executive branch of government and outlines the powers of the presidency, Section 4 stands as an expression of the limitation upon the president’s authority - providing Congress the ability to impeach and remove a president convicted of “Treason, Bribery, or other high Crimes and Misdemeanors.”
Conflict arises where presidents issue EOs under unclear authority, or employ twisted legal arguments to advance their agenda. This was the case with Trump’s 2017 immigration ban that was subsequently challenged in federal courts. Likewise, in January 2021 a federal district court in Texas ruled that Biden’s executive actions on immigration, including a freeze on deportations, fell beyond the scope of Presidential authority.
Ongoing partisan disagreement, coupled with the legacy of Trump’s influence upon the judiciary, have thrown into question the effectiveness of Biden’s EO’s. Aside from the radical alteration of the Federal Court system's political leanings following Trump's record number of appointments to the bench, this act also set a new precedent concerning the scope of the president's authority to influence other branches of government and infringe upon the separation of powers.
The still-present influence of the Trump administration is expected to constrain Biden’s actions and agenda during the first several years of his presidency. Accordingly, noting the presidential precedent the importance of EO within US policymaking and governance will remain relevant amidst the continuous transition of power between the republican and democratic parties in the White House.
Declan Curtin is the North American Regional Correspondent for YDS. He is currently studying the Juris Doctor at Melbourne University and holds a Bachelor of Arts degree majoring in international politics and history. He has a keen interest in public law and its role in international relations.