Government by Decree

One of the complaints against modern government is that it has become administration by decree.  Presidents rely upon what is essentially lawmaking prerogative by virtue of Executive orders.

The founders of the United States created a coequal branch in the Executive.  They wanted the Executive to be powerful.  In a sense, the Executive in the United State was a replacement for the English monarch whose power was restrained by the Parliament.

The Federalist Papers, mostly written by Alexander Hamilton who was a great fan of the English system of government, stressed the importance of a strong Executive.  However, the Executive was not entitled to make laws.  Laws were to be made by Congress. In order for the Executive to be able to function and to be an equal partner with Congress and the courts, the President had to be able to act through decrees, orders, and binding decisions.  The question became how much is too much?

When I teach law, I like to tell my students that the bureaucracy is the fourth branch of government.  In many ways, the bureaucracy has become not only an equal partner to the three branches of government but superior to Congress, the Executive, and the courts.

Recently the United States Supreme Court decided Loper Bright Enterprises vs. Raimondo, which overruled the so-called Chevron Rule.  Under prior Supreme Court case law, the administrative agencies, which compromise part of the Executive branch of government, were paid deference to their imposed regulatory structure.  Dealing with the hundreds of thousands of pages of regulations promulgated by the Administrative Branch of government, it became clear that the legislation of Congress was secondary to the administration of the laws by the Executive/Administrative branch of government.

In many fields of law, the regulations issued by administrative agencies seem to countermand the legislation itself.  Enter Loper Bright Enterprises which said that the bureaucracy was no longer to be given free reign but rather regulations issued by the Executive Branch of government needed to have a close nexus, a realistic relationship, to the laws passed by Congress which the Executive Branch was supposed to be carrying out.

When a President, such as President Biden, decides to forgive loans through Executive Order, he is acting as a kind of bureaucrat.  Presidential Executive Orders and executive agencies run rampant, become unaccountable to Congress or the people who elected their representatives to the Legislative Branch of government.

The history of presidential rulemaking is long and finds its origin with our very first President and hero, George Washington.

George Washington, during his 8 years in office, issued 8 Executive Orders.  Some of those were controversial and others were tested in the courts.

Presidential Orders, shaping and reshaping both legislation and the government, were relatively small in number until the Administration of Franklin Pierce, a name barely known to Americans.  From Pierce through Andrew Johnson, the number of Executive Orders quadrupled from earlier presidents.

Ulysses S. Grant, a well-respected Republican and leader of the Union during the Civil War, broke down the doors.  He issued 217 Executive Orders.  After Grant, there was a reduction in the number of Executive Orders until Republican Theordore Roosevelt.  Teddy issued 1,081 which was gargantuan given the number of Executive Orders prior thereto.  Roosevelt, the Trust Buster, was attempting to remake and reshape government based upon reformist Republican principles.  Roosevelt wound up leaving the Republican Party and running as a Bull Moose, which allowed the victory of Woodrow Wilson, a Democrat who issued 1,803 Executive Orders.  That was a record never before having even been approached by a President of the United States.  Wilson essentially ruled the country by fiat.  However, Republic Calvin Coolidge, known for being quiet and not doing much, issued 1,203 Orders.

The world changed, however, when Franklin D. Roosevelt was elected.  He issued 3,721 Executive Orders in his nearly four terms.  Even halving that would have set a record close to that achieved by Woodrow Wilson.

Woodrow Wilson and Franklin Roosevelt remade the country through their Executive Orders. They created a safety net, others would say a socialist system, that still is responsible for the complexity of government that we deal with today.

After Roosevelt, the number of Executive Orders fell to the hundreds rather than the thousands.  Donald Trump, in his first term, issued a few more Executive Orders than his predecessors, but nothing shocking.  Thus far, Donald Trump has issued approximately 73 Executive Orders, with more promised.

The political science question is whether when people vote, do they understand that the legislators will create broad based policies that a president or other Executive Branch of government may expand upon substantially or the Executive may simply issue their own Executive Orders skirting the legislative process altogether.

The statistics do not tell us whether the Executive Orders were pursuant to appropriately enacted legislation or represented a process wholly outside of Congressional prerogative.  However, we do know that presidents and their cabinet offices issue regulations, rules, and edicts in order to avoid Congress and to assure that the “mandate” given by the public to the Executive will be respected.

Many presidential candidates, decry the extent to which the Executive and Bureaucratic branches of government rule without Congressional approval.   However, when the candidate becomes president, there is a great tendency to leave the rhetoric behind and express their frustration with Congress’s snail pace by the issuance of Executive Orders and a cabinet level regulatory structure.

Simplification of government and an orderly understanding of what the Executive cannot do in the face of Congressional non-action is not a difficult lift.  Creating a more orderly structure demonstrating fidelity to constitutional precepts will not occur by Helter Skelter eliminating regulations or by cutting budgets just for the sake of financial responsibility.  The process of reeling in the fourth branch of government and making sure it is responsive to Congress and to the people who elected Congress, is a boring but necessary obligation of our elected leaders.