Although executive orders have a complicated and controversial role to play in the American legal and political system, not all of them are unconstitutional. President Trump’s executive order on Thursday, for example, is a prime example of an appropriate use of this executive authority.
The Constitution’s check-and-balance of legislative and executive authority restricts executive orders
It is true that executive orders are often little more than end-run around the fact that the Constitution assigns legislative powers to Congress, not the president.
And that’s why many liberty-minded observers reflexively condemn all executive orders as unconstitutional. They assert each one is an assault on the separation of powers and usurpation of congressional responsibilities by the president.
It’s also fun to watch how quickly the arguments change sides: Partisan opinion of executive orders inverts every time the White House flips between Republicans and Democrats.
President Obama famously insisted, “I have a pen, I have a phone,” when Congress – appropriately – refused to act on his policy priorities. Now that Trump holds the pen, Democratic state attorneys general are preparing to file a lawsuits against his Thursday executive order on Obamacare.
Executive orders are constitutional when they command the actions of federal employees
The Constitution creates what is known as a unitary executive. While that phrase came to be associated with controversial and dubious claims by the George W. Bush administration, the basic principle is undisputed.
Article II begins with a simple sentence: “The executive Power shall be vested in a President of the United States of America.”
That means all of it. Everybody else in the executive branch acts on the authority delegated to them by the president, who is the ultimate source of the authority. They answer to the president. With a few disputed exceptions, the president can fire them at will.
Executive orders, though not always by that name, have been issued by every president since George Washington. They are simply orders from the president as to how his executive authority is to be wielded by subordinates.
It’s the way the president gives marching orders to nearly three million federal employees.
Rules can also be waived by executive order; it’s not unconstitutional
There are two key distinctions here. The first is that the president can issue an order to the three million federal employees, but that he can’t command action or impose penalties on the more than 300 million Americans who are not federal employees.
If you don’t work for the federal government, the president is not your boss and can’t tell you what to do.
The second key distinction involves the waiving of a requirement, as opposed to its imposition.
Only Congress can command the behavior of private individuals. Congress can and often does delegate implementation authority to the executive branch to craft regulations fine-tuning the details. But all such regulations must have a firm basis in the underlying statute that was signed into law.
Trump’s executive order on healthcare is constitutional
President Trump’s executive order on healthcare is a good example of a legitimate and legal executive order. Using a combination of his inherent authority, as well as the authority granted to him by the law itself, Trump has selectively waived certain requirements of the Affordable Care Act. That’s within his lawful and constitutional prerogatives to do.
Paul Begala, a close aide and adviser to President Bill Clinton, once described executive orders as “Stroke of the pen. Law of the land. Kinda cool.”
That’s an interpretation that presidents in both parties have been tempted towards. It has never been correct. However, just because Donald Trump issues an executive order doesn’t mean that it’s inherently wrong.
(Photo of U.S. President Donald Trump showing an executive order after he signed it as Sen. Rand Paul (R-KY), Vice President Mike Pence, Rep. Virginia Foxx (R-NC) and Secretary of Labor Alexander Acosta look on during an event in the Roosevelt Room of the White House October 12, 2017 in Washington, DC. by Alex Wong)