Thinking Out Loud: President Obama and the Proper Use of Executive Orders

I am getting questions from readers about whether or not President Obama is properly using executive orders in his attempts to bypass Congress when Congress won’t support his political agenda.  I do not think so.  President Obama is frustrated with the legislative process, which he finds slow, cumbersome and uncertain, and therefore, Who needs Congress?  The American people want me to act so I’ll act.

Well, the Founding Fathers needed Congress, because they wanted both the legislative and executive branch — especially the legislative branch — involved in lawmaking, and if that made the process slow and cumbersome, so be it. The last thing the Founders wanted was a government in which a single entity — especially one man with executive power — acted quickly and unilaterally, making policy by executive fiat without input from the other branches of government.   That was a recipe for dictatorship.  Therefore they empowered Congress to make and amend laws (Article I, Section 1); while the president can either sign or veto laws, but if he signs them, he must “faithfully execute” them (Article I, Section 7).

Granted, used properly, executive orders can help the 3 million employees in the executive branch — executive orders are meant to apply only to the executive branch — better carry out their duties.   For one thing, the laws Congress passes often give the executive branch “discretionary power” to enforce them in ways that further the president’s political priorities.  For another, almost always the laws Congress passes include vague language open to interpretation.  Therefore, to the extent that executive orders clarify the law’s language, thereby facilitating better implementation of the law, and/or to the extent that executive orders help executive branch employees carry out the president’s agenda within the context of that law, that is entirely proper — provided that executive orders complement or clarify, rather than contradict the clear language of that duly enacted law.

Here is where President Obama has radically differed from his predecessors.  He keeps issuing executive orders that disregard the clear, unambiguous language in duly enacted laws.  His own Affordable Care Act, which Congress passed and he happily signed, is a good example.  The language in that law is crystal clear as to when the “employer mandate,” forcing businesses to provide healthcare coverage, was to take effect: January 1, 2014.  Yet President Obama amended that law by unilaterally delaying this mandate by one year.  He has no constitutional authority to do that because only Congress can amend laws.

My other problem with the president’s bypassing of the legislative process is that it sets a terrible precedent.  Other presidents, equally frustrated when Congress won’t go along with their political agendas, will inevitably follow his lead, eroding, if not doing away with, the rule of law.