Washington Wednesday - Power of the pen

MARY REICHARD, HOST: It’s Wednesday the 17th of March, 2021.

You’re listening to The World and Everything in It and we’re so glad to have you along today.  Good morning, I’m Mary Reichard.

MYRNA BROWN, HOST: And I’m Myrna Brown. First up: executive orders.

Immediately after moving into the Oval Office, President Biden got busy with the pen. 

BIDEN: Today I’m going to sign a few executive orders / Today I’ve approved a new executive order / But today I’m about to sign two executive orders…

And that’s not unusual. All presidents have a stack of orders awaiting their signature on day one. But President Biden has been signing them at an especially furious pace, rewriting policy on immigration, energy, climate change, abortion and more.

REICHARD: The last several U.S. presidents have looked to test the limits of their executive powers. You could make the case that those powers are expanding. 

Gene Healy is a vice president at the Cato Institute and is here to talk about all things executive orders. 

Good morning!

GENE HEALY, GUEST: Hey, thanks for having me on. 

REICHARD: First of all, we hear a couple of different terms: executive orders and executive actions. Or proclamations and memorandums. Are these the same things?

HEALY: No. They’re all forms of unilateral action. But an executive order is a specific form that gets tabulated in the federal register. An executive order can be everything from there’s a periodic executive order to give a half day closing early on Christmas Eve for federal workers. But then executive orders have been things like Japanese internment under FDR, wage and price controls under Nixon. So, you really have to know the details of what’s in a particular unilateral action before you can say whether it’s something to be concerned about or not. 

REICHARD: When did executive orders become a tool for presidents? 

HEALY: In a sense they’ve always been there. The law doesn’t execute itself, so presidents from George Washington on have put their names on a piece of paper that has some action carried out as a consequence. But what’s happened over particularly from the mid-20th century on is an increasing number of these start to look more like law.

REICHARD: Do you think executive orders are changing the presidency? Would you go that far? 

HEALY: They’ve become an increasingly important weapon. Increasingly it’s becoming who gets to come in the country and who gets to stay, what the rules are going to be at colleges and universities for sexual assault cases. So, very broad directives that impact a lot of people’s lives. And this wasn’t really the way the law was supposed to be made. The law was supposed to be made through deliberation and consensus. You have two houses of Congress and the president have to agree on something. Increasingly what’s happening is you’re just whipsawed from one administration to the next and that is really no way to run a country. 

REICHARD: How do you think President Biden’s use of executive orders so far compare to previous recent presidents? 

HEALY: Well, he’s come out of the gate especially fast. By any standard, he has at this point in his presidency, he’s using unilateral action more rapidly than his two previous predecessors have. And, you know, President Trump ramped up the use of executive orders from President Obama. And, predictably, the people on the red team who complained about the blue team’s president’s executive orders are now on the other side complaining about Biden’s executive orders. But, I think in the bigger picture, one of the arguments that Hamilton made for energy in the executive was that it was supposed to lead to steady administration of the laws. And I think in the modern context it leads to anything but steady administration of the laws. What you have is essentially the laws being changed by the stroke of a pen from one presidency to the next. 

REICHARD: Let’s talk about constraints. Are there legal constraints that confine executive orders? 

HEALY: Yes, but it’s very rare for courts to overturn executive orders because Congress tends to delegate a lot of power. There tends in many cases to be a plausible rationale rooted in statute for what the president has decided to do. But, yeah, the one famous case, the steel seizure case in the Truman administration struck down an executive order that seized steel companies and had the federal government run them. But it’s been rare since then for executive orders to be overturned. And, in some cases, that’s because Congress has actually delegated massive amounts of power to the presidency so the president has a colorable argument to be able to do what he’s doing. 

REICHARD: One historical point: In 2014, President Obama issued sweeping executive actions on immigration to protect so-called “Dreamers,” people brought into the country illegally as children. That was after Congress rejected the DREAM Act legislation, and after President Obama himself repeatedly made the case that he didn’t have the legal authority to do that on his own. The courts didn’t stop him, so did that reveal greater authority that presidents may have to act via executive orders? Or was it a moment when we saw executive powers expand? 

HEALY: Well, I think it points up that presidents will shift their views of their own power under political pressure. And I think there are going to be enormous pressures on this president as well to show that he’s “getting things done.” There’s actually a lot of pressure from the left wing of the Democratic party now for Biden to do big bold things by executive edict. There’s pressure from Elizabeth Warren and some others for him to cancel up to $50,000 per person in student loan debt with the stroke of a pen. He’s been resistant to that. But gridlock is not an argument for more presidential power, but it does give presidents an incentive to strike out on their own when their initiatives are stymied in Congress. I think that’s part of the story with Obama and the DREAM Act, but it’s not healthy for when legislation for the president to strike out on his own and seize the power and do it unilaterally. 

REICHARD: We’ve heard it said that executive orders by the current president can be undone by the next president. But courts stopped President Trump from rescinding Obama’s executive action related to Dreamers. So is it the case that only an act of Congress can roll back certain presidential orders? 

HEALY: Well, yeah, the courts have gotten in the way in those cases and others because of reliance interests created by the initial executive order. But I think that Congress needs to get serious about reining in its own tendency to delegate power because what happens is it becomes — we’ve almost turned the Constitution upside down. Congress delegates vast amounts of power to the president. The president, through the power of the pen, issues orders that have the effect of law. And then it’s up to Congress if they want to try to overturn what the president decided to do through legislation. Legislation was supposed to be hard to pass. It has to develop a lot of consensus. Now you have the president essentially legislating and all the constitutional barriers that were put up in the way of hasty lawmaking are now in the way of repealing hasty lawmaking by the president. I think many—if not all—of President Trump’s vetoes over his one term were of things like Congress trying to repeal his national emergency declaration over the border wall. In other words, there were attempts to reverse unilateral actions that he took and the president gets to veto that, which makes for even more power concentrated in the presidency and makes it even more difficult for Congress to reclaim the authority that the Constitution grants it. 

REICHARD: Anything else the public should understand about executive orders? Philosophy?

HEALY: Well, I wish people would take a broader view rather than who’s up, who’s down, red team, blue team. The presidency routinely changes hands, so there’s this kind of sad process where if the president’s wearing a different colored jersey than you prefer, then you get concerned about executive power. But, as I say, the presidency routinely changes hands. So, I think we ought to be thinking more about do we want to go through this whipsawing between vastly different policies that are made at the behest of one person and do we want to reform this?  

REICHARD: How do we do that?

HEALY: Well, that’s a long conversation. There’s any number of decent proposals that have been made. Something called the REINS Act, which would essentially — major regulations issues by the executive branch would have to be approved by Congress. There’s a similar proposals to rein in presidential emergency powers, similar measures with the president’s unilateral trade powers and war powers. I think all of those sorts of measures that ought to be considered right now in Congress and I think could go a long way toward putting the presidency back in its constitutional place.  

REICHARD: Gene Healy is a vice president of the Cato Institute. Thank you so much for your time today. 

HEALY: Thanks for having me on.

(AP Photo/Evan Vucci, File) In this Jan. 20, 2021, file photo, President Joe Biden signs his first executive order in the Oval Office of the White House in Washington. 

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