Ohio State University

The Executive Order Does Not Eliminate Institutional Checks by Thomas Baumgarten @ Ohio State University

Some may argue that Trump’s use of the executive order is responsible for the erosion of democracy by eliminating the system of checks and balances that are in place. I will argue that the necessary checks and balances are still in place, and that they will continue to protect the established democratic institutions of the United States.

Trump has issued many executive orders and some of them have garnered attention for the wrong reasons. According to data compiled by The American Presidency Project[1], President Trump has issued a total of 58 executive orders. Many of them have been very controversial in the public eye, especially his executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States”[2]. This executive order was met by much resistance from the then acting Attorney General Sally Yates. She was subsequently fired and replaced by Dana Boente who would go on to endorse the legality of Trump’s executive order[3]. Through his high use of the executive order and his removal of Sally Yates, Trump might be hurting democracy through him subverting or eliminating the system of checks and balances that are in place. As Aziz Huq and Tom Ginsburg write in “How to Lose a Constitutional Democracy”, this is in fact one of the pathways to constitutional retrogression, a form of democratic erosion[4]. However, Trump’s high use of the executive order and his firing of Sally Yates are not eroding the democracy of the United States.

It is important to understand what exactly the executive order is and how the president can use it. The executive order dates all the way back to George Washington’s time in office, and it is an official directive from the U.S. president to federal agencies that often has much of the same power as a law[5]. The power of the executive order is not explicitly given by the Constitution, but it is derived from Article II of the Constitution. The executive order allows the president to push through policy changes without having to go through the entire legislative process. If the order has a basis in the Constitution, the powers given to the president, or a law passed by Congress, then the order shall receive the force of the law.

To some, Trump’s high use of the executive order appears concerning for the state of our democracy. After all, he is nearly doubling the number of executive orders Obama signed at this stage in his presidency. Also, the executive order is not subject to the checks and balances that bills are in the legislative process. Because of this, Trump is potentially abusing the powers of the executive branch. The problem with this concern is that the quantity of executive orders does not equal the abuse of executive power. Trump’s use of the executive order is high, but it is nowhere near the most that it has ever been used. The American Presidency Project™ lists Franklin D. Roosevelt’s use of the executive order at 3721. Given that Trump is nowhere near on pace to break this record, it is not right to say that Trump is abusing his powers to eliminate the institutional checks in place. In fact, this could not be farther from the truth. In actuality, executive orders are subject to a measure of checks and balances. Executive orders are subject to legal review by the Supreme Court or lower courts, and they can also be revoked by Congress through the passing of new legislation. The use of the executive order might expedite the process of checks and balances, but it most certainly does not eliminate them.

Trump’s removal of an official who opposed one of his executive orders seems concerning for the of our democracy too. Sally Yates’s decision as acting Attorney General to not endorse Trump’s executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States” is an example of the institutional checks that can be used on executive orders. She questioned its lawfulness and constitutionality, and was fired by Trump as a result. Her firing and replacement might appear to some as the elimination of institutional checks that causes the erosion of democracy. But this is not the case in this situation. First, Trump’s order was still subject to the necessary checks after her dismissal. He still had to appoint Dana Boente to replace her, and Boente had every right to oppose the order if he too had a problem with its constitutionality. The order also could be and has been checked by other existing legal institutions. Second, the examples that Huq and Ginsberg provide as instances of institutional checks being eliminated involve the use of legislation or constitutional amendments to weaken the institution responsible for the check. Trump did not amend the Constitution to fire Yates because it already supported his ability to fire her. It gives him the ability to appoint officers and to hold them accountable[6], and he held her accountable so he removed her from her position.

Trump’s liberal use of the executive order and his removal of an official who did not support one of them might raise the concern that he is eroding democracy by eliminating institutional checks. However, I have argued that the necessary system of institutional checks are still in place, and they will continue to protect our democratic institutions.

*Photo by Olivier Douliery-Pool/Getty Images, Business Insider, Creative Commons Zero License

[1] http://www.presidency.ucsb.edu/data/orders.php

[2] https://www.nbcnews.com/politics/white-house/here-s-full-list-donald-trump-s-executive-orders-n720796

[3] https://www.cnn.com/2017/01/30/politics/donald-trump-immigration-order-department-of-justice/index.html

[4] Huq, Aziz Z., and Tom Ginsburg. “How to Lose a Constitutional Democracy.” SSRN Electronic Journal, 2017

[5] http://www.history.com/topics/executive-order

[6] https://www.politico.com/magazine/story/2017/01/why-trump-had-to-fire-sally-yates-214715

2 Comments

  1. Shravan Balaji

    March 13, 2018 at 6:22 pm

    You make a compelling argument that President Trump’s executive orders (EOs) are not a threat to democracy. You cite Article II of the U.S. Constitution while referring to the checks and balances in Congress/the Supreme Court to support your argument. However, I would argue Trump’s executive actions are symptomatic of democratic erosion since they reflect the growth of executive power over Congress during gridlock.

    Over the years, EOs have evolved to have larger regulatory and policy influence. Most notably, President Franklin Roosevelt used EO 9066 to intern Japanese-Americans during WW2, while President Truman used EO 9981 to desegregate the military. Regardless of policy outcome, these decisions served to weaken the legislature, which Colgan cites as a symptom of backsliding.

    Many of these orders are also used to replace legislation that would normally be passed by Congress. Trump’s border security measures should have been debated in Congress as legislation, as should the Deferred Action for Childhood Arrivals (DACA) program, signed into law by President Obama. Due to gridlock, both Presidents simply chose to bypass the legislative process, instead relying on their own executive power. This is reflective of democratic erosion, as according to Norris, it “undercuts the legitimacy of checks and balances”. Ellen Lust warns that this congressional inaction increases distrust in the legislative branch.

    Issues with the strength of the executive branch go beyond one President. While a stronger executive is not necessarily a bad thing, the U.S. currently has a legislature incapable of challenging the executive and a judicial branch that attempts avoiding confrontation. Congressional productivity is at a low, while the Supreme Court refuses to comment on controversial executive actions like signing statements. Given all this evidence, it seems reasonable that the extensive use of EOs for creating policy is problematic for American democracy.

  2. NARMEEN MUNDH

    March 13, 2018 at 8:28 pm

    Hi, I really like the technical approach you have taken to systematically justify the use of executive orders by President Trump, and to a great extent agree with the opinion that other checks and balances on his power are, and will remain, in place. However, I feel that your argument remains too focused on the use of executive orders in general, rather than the way Trump aims to use them. His travel bans, which have all faced resistance, are highly divisive and bring outright infringement of the social liberties which are considered undemocratic. Moreover, his subsequent firing, of not just one but several members of the government, are clear signs of him showing no remorse at creating a government which only promotes his own beliefs. Former leading prosecutor Bharara was fired for his unwillingness to let Wall Street corruption slide, and FBI Director Comes who was leading an investigation into the President himself was also fired. These actions may be “legal”, but please its not confuse legality with democracy. You cannot pick up these actions and view them as individual actions, but must rather look at them collectively for what they represent: a clear attempt at trying to weaken the individuals and establishments that appear to be standing in Trump’s way.

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