Remember when President Barack Obama said he didn’t need Congress?
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama quipped back in 2014.
Republicans went into hysterics. “How dare the president claim unconstitutional powers! How dare he issue executive orders! This is tyranny!”
My how things changed in just six years. Now that President Trump has the pen and phone, Republicans have made peace with unconstitutional executive orders.
Tyranny is fine as long as it’s Republican tyranny.
The reality is unconstitutional executive orders are still unconstitutional when Trump issues them – even if you love the policy he’s promoting.
What’s the deal with executive orders anyway?
Presidents have been issuing EOs since the George Washington administration. People seem to adopt one of two extremes when it comes to this practice. On the one hand, many argue the president can legitimately issue executive orders with virtually no limitation. The left aggressively advanced this idea during the Obama years. In many cases, the president did indeed utilized EOs to formulate policy, shape rules and essentially legislate from the Oval Office. This clearly went beyond the scope of legitimate executive authority.
On the other side of debate, some claim the president cannot issue executive orders for any purpose whatsoever.
Constitutionally, the truth falls somewhere in the middle.
The president has the authority to issue EOs relating to the operation of the executive branch, and to direct and manage its personnel. For example, Pres. Trump signed an order during his first full day in the White House instituting “a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch.” The president remains perfectly within his authority to direct staffing levels in executive branch agencies.
On the other hand, the president cannot constitutionally issue orders that implement rules, regulations and edicts applying to the people, orders that bypass the legislative processes, or orders that subvert legislation that was passed by Congress and signed into law. This crosses over into legislative authority.
In case you were wondering, telling landlords that they can’t evict tenants isn’t a legitimate presidential power.
I cover executive powers and Eos in my book Constitution Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About. You can get more information about the book at ConstitutionOwnersManual.com.