Weather forecast: A blizzard of executive orders
Trump reportedly plans to press the limits, leaving it to the courts to decide how far he can go
President-elect Donald Trump plans to begin his second term in the White House with a blizzard of executive orders.
That’s the takeaway from a Wall Street Journal report last week on a meeting Trump had with Senate Republicans:
With the experience of governing and a better knowledge of the levers of power, Trump has drafted expansive plans for tariffs and border restrictions, the centerpieces of his 2024 campaign. He has already prepared roughly 100 executive orders, Trump told lawmakers in the meeting, and said he would press the limits of his presidential authority at times to go it alone on those issues, according to people who attended.
With his party controlling both houses of Congress, Trump will have a lot of leeway to set his own policies, and he is likely to use it in multiple ways, including intervening to pause the shutdown of TikTok. And like any newly elected official, he’ll want to show voters that he is delivering on the promises he made during the campaign.
Many of the executive orders will take effect without obstacles. But Trump’s ability to “press the limits” of presidential power is dependent on whether he can fight off legal challenges to his orders in the courts.
Trump begins his term with a 6-3 conservative majority on the U.S. Supreme Court, but some in the majority have voted to restrict executive powers, at least when exercised by Democratic administrations.
The court has a longstanding test it can use to judge whether Trump is going too far and exceeding his authority. The question is whether the justices will use it.
Executive orders
On June 8, 1789, George Washington issued what is commonly viewed as the first executive order. He asked his department heads to send him in writing a “clear account” of their units of government so that he could have “a full, precise, and distinct general idea of the affairs of the United States…”
It was the first of only eight executive orders issued during the eight years of Washington’s presidency.
Many of his successors have made far more use of such orders. Franklin D. Roosevelt, Woodrow Wilson, Calvin Coolidge and Theodore Roosevelt each issued more than 1,000, according to the American Presidency Project’s invaluable database.
FDR holds the record, having penned 3,721 orders. William Henry Harrison, who died a little more than a month after being sworn in, is the only president who never promulgated an executive order.
Of course, the raw number of orders issued by a president can be misleading. FDR had a lot more time to wield the presidential pen — he served more than three terms in the White House while some other presidents have served only a term or less.
In an effort to provide a more revealing metric, the American Presidency Project wisely calculates an average number of executive orders per year. By this standard, Franklin Roosevelt still leads, at 307 per year. This chart shows the presidents with the highest average number of orders per year.
Interestingly, Trump was not an especially zealous user of executive orders in his first term, having issued an average of 55 per year. Harry Truman’s average was twice as high. Joe Biden has issued 38 a year on average, for a total of 160.
Apples and oranges
A more important problem with the statistical approach is that it can equate very unequal things. An executive order can vary in impact from trivial to world-shaking.
On January 1, 1863, President Abraham Lincoln issued an executive order which came to be known as the Emancipation Proclamation, freeing slaves in the states that had seceded from the Union.
Other orders have provided money for the Manhattan Project, set the groundwork for the internment of Japanese Americans during World War II, desegregated the military and prohibited LGBT workers from holding government jobs (the last one was reversed by executive orders from Presidents Bill Clinton and Barack Obama).
In Trump’s first term, the executive orders ranged from banning the entry of nationals from some Muslim-majority nations (the lower courts struck down some versions of his travel bans, but the final one was upheld by the Supreme Court) to reviving the National Space Council to “Expanding Apprenticeships in America."
Youngstown
When the United Steelworkers of America went on strike in 1952, President Harry S. Truman feared the potential impact on supplies and equipment for U.S. soldiers fighting in the Korean War. He ordered the commerce secretary to take control of the steel mills, seizing them from their owners, who promptly went to court.
Truman’s action was declared invalid by a 6-3 Supreme Court decision in Youngstown Co. v Sawyer. But it wasn’t the court’s overall opinion that endured in the law as much as the concurring opinion by Justice Robert H. Jackson.
Jackson had been a close adviser to President Franklin D. Roosevelt during the Depression in the 1930s and World War II in the 1940s. Roosevelt had appointed him U.S. Attorney General and later nominated him for the Supreme Court. Truman selected Jackson as the lead prosecutor for the Nuremberg war crime trials of the Nazi leaders.
Jackson began his Youngstown opinion with a hint that he had been thinking about related issues for some time: “That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.”
He then set out a now celebrated three-part test for judging the validity of executive orders:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility…
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb…
Truman’s takeover of the steel mills had to be nullified, Jackson thought, because it fell under point 3 — it not only had no authorization from Congress but the legislative branch had actually considered and rejected such uses of government power.
Jackson’s test is still applied more than 70 years later. As Samarth Desai of the National Constitution Center wrote, “Today, judges and scholars across the spectrum recognize Youngstown as a watershed moment in limiting presidential power, and the decision continues to be cited by the Supreme Court. Most recently, Justices Brett Kavanaugh and Samuel Alito pointed to the precedent in the June 2022 Biden v. Texas case, which upheld the Biden administration’s decision to end the Trump administration’s ‘Remain in Mexico’ policy.”
Not fans of George III
In his concurring opinion, Jackson reflected on historical uses of power.
He wrote, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”
The Founding Fathers, he wrote, were careful not to grant presidents sweeping powers in case of emergency, except for suspending the use of habeas corpus during rebellion or an invasion. Other nations went a different and more dangerous route.
“Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition,” Jackson noted.
“However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenburg to suspend all such rights, and they were never restored.”
Latest NYTimes poll shows Americans favor Trump's policies more than Trump. We'll see if that sentiment lasts when grocery prices prove stuck and tariffs hit consumers. Thanks for another informative piece.