University at Albany
 

President Barack Obama has been vehemently denounced for the executive orders he has issued, especially last November's executive action to protect an estimated four to five million undocumented immigrants from the threat of deportation. Senator Rand Paul (R-KY) stated that "Obama's executive amnesty is unconstitutional and trashes separation of powers. Republicans should use any means necessary to stop this power grab." Going Paul one better with his rhetoric, Senator Ted Cruz (R-TX) claimed that when the president announced his "executive diktat," he was "acting as a monarch." But are Obama's executive orders in violation of the United States Constitution? Indeed, are they anything out of the ordinary in the history of the presidency?

In the federal government, executive orders are directives from the president to officials in the executive branch as to how they are to carry out the implementation of the laws. They are binding not only on federal bureaucrats but also on individuals and organizations in the private and nonprofit sectors if they receive federal funds. Executive orders are part of a larger class of unilateral actions by presidents; executive proclamations (e.g., Lincoln's Emancipation Proclamation) are another prominent form. Every president except for the unfortunate William Henry Harrison has issued executive orders. Obama has actually been sparing in his use of these orders; in fact, his yearly average through his first six years in office was lower than that of any president since Grover Cleveland!

His critics, however, have said that it is not the frequency of Obama's orders that is outrageous so much as is the magnitude of their impact on American life. Shielding four to five million "illegal aliens" from the requirements of existing immigration law, say Obama's opponents, is an egregious deviation from what Congress intended. Executive orders, this argument presumes, are proper only if they legitimate modest acts of bureaucratic discretion. This argument, too, runs afoul of American history. Unilateral acts by presidents have often brought about significant changes in American public policy. President Truman desegregated the armed forces through an executive order. Affirmative action policy in the federal government was the work not of Congress but of orders from Presidents Kennedy, Johnson, Clinton, and even Nixon. A ban on abortion counseling by international agencies receiving federal funds was ordered by President Reagan (his policy was reversed by Clinton, restored by the second Bush, and reversed again by Obama).

Executive orders like Obama's often engender controversy, but they are a tool that every modern president has used. A few orders have been struck down in the courts, but most have withstood legal challenge. One of the ironies in the furious talk about power grabs and monarchical arrogance is that it exaggerates just how much power unilateral actions add to the presidency. To be sure, presidents can get some very important things done in this manner. Yet the limits to executive orders are too seldom observed, even by scholars. Such orders need to be justified through existing constitutional or statutory law; they cannot make new law. That presidents generally have to go to Congress to win major changes on taxes, health care, education, civil rights, or immigration — and often lose there — indicates one of the most important limitations of executive orders. The scope of executive orders is also narrowed by the need for congressional appropriations; Congress may not be able to reverse an order but it can certainly refuse to fund its enforcement. Finally, as the story of Reagan's abortion order reveals, executive orders are precarious; if they touch upon matters of partisan polarization, they will survive only as long as the president's party retains the White House.

George W. Bush's executive orders were denounced by Democrats: now it is Obama's turn to be pilloried by Republicans. Forget the talk of monarchs and dictators; executive orders — and the partisan attacks that they spark — are, as the old cliché would have it, as American as apple pie.


Bruce Miroff is a Collins Fellow and professor of political science at Rockefeller College of Public Affairs & Policy, University at Albany. Professor Miroff teaches and writes on the American presidency, American political development, American political theory, and political leadership. A recipient of the University at Albany's Excellence in Teaching Award, Professor Miroff is the author of five books: Pragmatic Illusions: The Presidential Politics of John F. Kennedy (1976), Icons of Democracy: American Leaders as Heroes, Aristocrats, Dissenters, and Democrats (1993), The Liberals' Moment: The McGovern Insurgency and the Identity Crisis of the Democratic Party (2007), Debating Democracy: A Reader in American Politics, Sixth Edition (2009), and The Democratic Debate: American Politics in an Age of Change, Fifth Edition (2010). Professor Miroff is currently writing Presidents on Political Ground, which will be published in 2016.

This article originally appeared in the Spring 2015 Rockefeller College News Magazine.