With the Stroke of a Pen: Executive Orders and Presidential Power

By Kenneth R. Mayer | Go to book overview

Seven
Conclusion

JOSEPH STORY, in his venerable Commentaries on the Constitution, found that the proper scope and organization of the executive power are “problems among the most important, and probably the most difficult to be satisfactorily resolved, of all which are involved in the theory of free governments.” 1 Missing the mark on achieving the proper balance leads directly to the pathologies of republican governments that the Framers feared. An executive that is too strong would re-create monarchy; a weak executive would prove unable to stop the government from tumbling into chaos and paralysis.

In constructing the presidency, and the other institutions of the federal government, the Framers strove to get that balance right. But as is the case with trying to balance majority rule with protection of minority rights, it is hard to accommodate such contradictory—if not mutually exclusive— imperatives. We want a president who is empowered to deal effectively with emergencies, but not one who can usurp popular sovereignty or exercise power without accountability. We impose constitutional constraints—checks and balances, explicit limits on presidential power, congressional removal—but fret when the president appears paralyzed by forces he cannot control.

The Framers, in creating a presidency with limited powers and an enhanced ability to act, along with a Congress with broader powers, but subject to majoritarian and collective constraints, got the balance right. This is reflected in the remarkable self-correcting attributes of our constitutional system. Presidents who push too far find themselves the object of broad political condemnation (Reagan, with Iran-Contra) or formal sanction (Nixon, Clinton). But the predictions of either the imperial presidency or the paralyzed presidency have proved wrong; the office is both resilient and subject to moderating influences. The president occupies an office beset by contradictory impulses, or ambivalence (to use Harvey Mansfield's term): the occupant “innovates and initiates”at the same time that he seeks to portray himself as merely an agent of the popular will, “now subordinate, now independent.” 2

President Clinton's travails in 1998 and 1999 highlighted this duality. His affair with Monica Lewinsky, subsequent independent counsel investigation, impeachment, and trial provoked sharply different reactions. To

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With the Stroke of a Pen: Executive Orders and Presidential Power
Table of contents

Table of contents

  • Title Page *
  • Contents *
  • List of Figures and Tables ix
  • Acknowledgments xi
  • With the Stroke of a Pen *
  • One - Why Are Executive Orders Important? 3
  • Two - Executive Orders and the Law 34
  • Three - Patterns of Use 66
  • Four - Executive Orders and the Institutional Presidency 109
  • Five - Executive Orders and Foreign Affairs 138
  • Six - Executive Orders and Civil Rights 182
  • Seven - Conclusion 218
  • List of Abbreviations 225
  • Notes 227
  • Index 279
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