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 summarily canceled 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 Bloomington. He was a member of the U.S. House of Representatives for 34 years.