Magazine article The American Prospect

The Power of the Pen: The Not-So-Secret Weapon of Congress-Wary Presidents: The Executive Order

Magazine article The American Prospect

The Power of the Pen: The Not-So-Secret Weapon of Congress-Wary Presidents: The Executive Order

Article excerpt

Sure, the Democrats could hit the jackpot this year and take the White House and both chambers of Congress. But if John Kerry wins, he could just as easily be facing a Republican-controlled Congress that's, well, not eager to cooperate. Luckily, his hands wouldn't be tied. He'd still have the executive order to help promote his agenda. In fact, on issues from the environment to labor to abortion, Kerry would likely resort to unilateral action rather than try to wrangle a bill through Congress. Acting through executive orders would allow him to take decisive stands and to set the terms of a policy debate. Indeed, given the chances of an oppositional Congress and the fact that he would be replacing a Republican, Kerry would probably use the executive order even more often than Presidents Bill Clinton and George W. Bush did. But before doing so, he would need to take a good look at his recent predecessors, be cause while they have all used the executive order to define their agendas, they have also found that pushing too far has painful political consequences.

IN THE MODERN ERA, EXECUTIVE ORDERS HAVE GONE FROM being a tool largely reserved for internal White House operations--deciding how to format agency budgets or creating outlines for diplomatic protocol--to a powerful weapon in defining, and expanding, executive power. In turn, presidents have increasingly used that power to construct and promote social policies on some of the country's most controversial issues, from civil rights to labor relations to reproductive health.

The executive order is not mentioned in the U.S. Constitution; rather, it derives from the document's requirement that the president enforce federal laws--that he "shall take Care that the Laws be faithfully executed"--and carry out his various constitutional duties, such as overseeing the military and conducting foreign relations. "Presidents have issued executive orders from the earliest days of the republic," notes political scientist Kenneth Mayer in his 2001 book, With the Stroke of a Pen: Executive Orders and Presidential Power, "but there has never been a uniform style."

Executive orders weren't systematically recorded until the 1920s, and the numbering system instituted in 1907 extends, retroactively, only to the Lincoln administration. (Executive Order l, issued on April 15, 1961, established military courts in Louisiana.) What's more, many actions characterized as executive orders are actually presidential memoranda, directives, and proclamations, similar in use but legally distinct tools. (Ronald Reagan's so called Mexico City policy, which blocked federal funds for international aid groups that provide abortion counseling, is one such memorandum often mischaracterized as an executive order.) But while the definition is vague and the limits are murky, the exercise of an executive order is pretty straightforward: The president can order an executive branch agency to do anything he wants, as long as he can cite a law or the Constitution to support his action.

Taken as a whole, executive orders are pretty mundane. Even today, they usually amount to little more than bureaucratic fine-tuning--an order issued by Bush on April 30, for example, streamlined the process for building border-crossing stations. But they have also been used by presidents to effect dramatic change. In 1948, frustrated with his efforts to get civil-rights legislation moving in Congress, Harry Truman used the executive order to desegregate the military. In 1994, after Congress refused to bail out the Mexican economy, Clinton invoked his power under the Exchange Stabilization Fund, a Depression-era mechanism allowing the president to defend the dollar abroad, to provide $20 billion in loan guarantees. The most famous executive order may be the Emancipation Proclamation, which drew on Abraham Lincoln's power as commander in chief to free slaves held in Confederate states. "It was quite clearly the most expansive use of the executive order power ever," says Walter Dellinger, a Duke University law professor and a Clinton assistant attorney general. …

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