Executive Orders

If consistency is the hobgoblin of little minds, conservatives should rest easy – they are free of the hobgoblin threat. For them, on odd-numbered days, Obama is a weak leader, overwhelmed by Putin and paralyzed over Syria; on the evens, Obama is a dictator, ramming through the ACA via a backdoor reconciliation, conducting an unauthorized war in Libya, and ruling the country by executive order.

In foreign affairs, among policy experts, Obama is in fact lauded for taking a measured approach amidst turmoil in the Middle East, where the US must steer between the rock of democratically-elected Islamists, and the whirlpool of old-school Arab authoritarians. And he’s praised for his steady management of the ongoing crisis in Ukraine, despite a lack of support from cowed European allies.

As for Obama’s use of executive orders, quantitative measures are imperfect, because many orders are on mundane, uncontroversial matters. But the image of Obama-qua-dictator, issuing executive orders on a daily basis, is at odds with the most basic facts. To date, Obama has issued 183 executive orders, putting him on track to conclude his presidency with 266. His average of 2.77 executive orders per month is lower than any president since the 19th century. (Grover Cleveland averaged 2.35 per month during his 1st term, 1885-89.) Obama’s totals are significantly lower than other recent 2-term presidents: Reagan issued 381, Clinton issued 364, Bush Duh issued 291.

Remarkably, the only executive order from Obama that Congress has seen fit to challenge is one delaying implementation of an ACA provision that requires corporations with more than 50 employees to obtain health insurance for their employees. It can hardly be questioned that Obama could have used his prosecutorial discretion to not enforce the provision anyway. But an executive order is a far more efficient tool to achieve the same end, since companies can rely on it and plan accordingly, and not be forced to operate under the threat of enforcement. One must also note that the House voted to repeal the entire ACA 54 times, revealing that Congress has no objection to the substance of Obama’s policy; their issue is strictly procedural. Finally, given that the delayed provision should go into effect in 5 months, the case will likely be mooted before the courts can resolve it. Bottom line: the House’s objection to even this one executive order is no more than an election-year dog and pony show. If that’s the worst executive order they can find, the unavoidable inference is that Obama has not overreached.

Obama’s restraint is all the more notable in light of the fact that this Congress is among the most unproductive ever, abandoning the president to manage one crisis after another on his own. Case in point: shortly after voting to sue the president over his executive order on the ACA, the House again failed to work out a legislative compromise to address the flood of children across the southern border from Central America. Congress’ subsequent message to the president: he should manage the situation with executive orders.

In the storied history of executive orders – over 13,000 issued since the Washington administration – only 2 have been struck down in courts. The first time it happened made for one of the greatest Constitutional crises of the 20th century. In 1952, while US troops were fighting in Korea, a labor dispute in the US was threatening the supply of steel needed for the war effort. With labor and ownership far apart, a strike imminent, and supplies to the US Army jeopardized, Truman seized control of the nation’s steel mills via an executive order. The Supreme Court struck it down. Truman, in his memoirs, expressed shock at their decision. Hugo Black, the Justice who authored the opinion, felt so bad about it that he invited Truman over to his house for dinner afterward.

Obama’s use of executive orders is quite in line with the practice of US presidents since the 18th century. The big change is with Congress, which now prefers posturing to legislating. And while legislation only issues when Congress is in session and comes to an agreement, the executive has no such luxury – his administration must govern in real time, without pause, whether Congress deigns to lead, follow, or fail to get out of the way.


















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