Sunday, June 17, 2012

Executive Orders: A Pathway to Tyranny or Social Progress


Presidential proclamations and executive orders can be a slippery slope.  While we often applaud these Constitutional executive instruments when ‘our guy  (or gal)’  occupies the White House, we are quick to criticize when the other team actively issues its own orders.  I was very pleased watching President Obama’s speech from the Rose garden where he talked about his latest executive order ending deportation of young adults who were brought to this country illegally when they were young.  It is a safe bet to say that support and displeasure will fall along political lines.

But there are difficult question our Republic faces. Does the constitutionally balanced form of our government get out of balance when the executive can issue orders and in the process eradicate the prescribed checks?  Does our Republic become a monarchy? Is what’s good for the goose, good for the gander?  After all, thousands of executive orders have been issued since George Washington issued executive order #1  on June 8, 1789 instructing department heads to make a “clear account” of matters in their departments.


The issue of executive power is not trivial.  Presidents from both sides of the aisle have pushed the power of the Presidency and have seen their efforts contested by both Congress and the courts.  Today, very few people would consider President Lincoln’s Emancipation Proclamation consisting of two executive orders bad for the nation, but how would the suspension of Habeas Corpus be received today?  On the other hand, when President Truman tried to nationalize the steel mills he was overruled by the courts as it was deemed an abuse of power of which only Congress was duly empowered.

While most executive orders are trivial, many can have potentially legal and constitutional implications, where the most ‘threatening’ would actually encroach or obliterate the Bill of Rights:

  • Executive Order 10990 allows the government to take over all modes of transportation and control of highways and seaports.
  • Executive Order 10995 allows the government to seize and control the communication media.
  • Executive Order 10997 allows the government to take over all electrical power, gas, petroleum, fuels and minerals.
  • Executive Order 10998 allows the government to take over all food resources and farms.
  • Executive Order 11000 allows the government to mobilize civilians into work brigades under government supervision.
  • Executive Order 11001 allows the government to take over all health, education and welfare functions.
  • Executive Order 11002 designates the Postmaster General to operate a national registration of all persons.
  • Executive Order 11003 allows the government to take over all airports and aircraft, including commercial aircraft.
  • Executive Order 11005 allows the government to take over railroads, inland waterways and public storage facilities.

Which brings us to President Obama’s recent executive order.  Obama haters, Libertarians, RWNJ’s, conservatives, and some independents will criticize the President and call him a tyrannical monarch wannabe.  Well if you don’t like it, ask your Congressman to overturn it  or file suit in federal court.  For those that are critical of this order, they should be critical of all similar orders regardless of party and regardless of content.  I believe executive orders are legal and necessary when the will of the government and the people fail to meet the challenge. 

I have been gone on record of an active government when it comes to wronging social injustices and looking forward, not backward.  When the government, especially the executive, exceed its constitutional authority, we hope the courts step in.  FDR’s executive order 9066 established Japanese internment camps, something we all agree today was a grave mistake, issued under the fear of mainland sabotage and espionage from Japanese after the Pearl Harbor attack.  Similar mistakes were made following the 9/11 attacks, once again executive orders all in the name of national security.

I am always suspect of increased executive powers  even when I may agree with the order in question due to the precedent setting possibilities enabling future executives to become too extreme.   Then again a packed Supreme Court, congressional super majority, and executive branches all being controlled by the same party is equally scary.  An opposition Congress that has blocked the President at every turn and where 60 is the new 50 in the senate enables the executive to take the road that Congress is the enemy of progress. 

So socially progressive executive orders from any President will always be welcome, socially regressive or restrictive orders will be received with skepticism.  Yes, I guess you can say that I accept that doing the right thing the wrong way as an acceptable policy.

3 comments:

  1. I don't know. I think executive orders can be a slippery slope, but they are, after all, an instrument that we give our President the authority to use. In other words, we've not yet banned them.
    I happen to agree with the President on this one. I almost think that in this case, he used his power of Executive order in a proper manner. This is something that was never going to be remedied in Congress. It just wasn't going to happen. Everyone is too concerned about their political standing.
    Other than a few of the right wing extremists, have you noticed that there doesn't seem to be a lot of push back? Even Romney was backed into a corner because a Romney president, regardless of what he says on the campaign trail would support this step. Obama simply beat him to it and had the political courage to stand for something he believes in. This is what a leader does.
    I think on the whole, that we learn from our past mistakes. Presidents won't be allowed to create internment camps based on ethnicity. We are now more enlightened and more tolerant than we were.

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  2. I too worry about precedents being set on executive power. For instance the kill or capture program being run by the WH using drones could be setting executive power to a level that someday could be abusive. Would the president be allowed to kill an American citizen via drone if the nation faced a clear and present danger?

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  3. Good point. The use of military drones is an area where technology has surpassed our ability to be proactive in creating laws to govern it, much like the internet was and continues to be.

    I worry about any innocent person being killed, whether or not they are American citizens or not. Up to this point in time, I feel confident that Obama is not making decisions to kill or capture with drone strikes lightly. I have enough confidence in him to believe he is not abusing this power.
    I am also under the impression that his executive authority to bypass Congress in these matters is based on the AUMF which was signed into law shortly after 9/11. You could argue that passing the legislation to give the President unprecedented authority in this situation was an emotional reaction for which the ramifications were not thought out. Nevertheless, it has stuck and in Obama's case, where we have a do nothing Congress, it is beneficial.
    Would I have the same faith in the next President? Perhaps not, but the authority of the President to use executive privilege for drone strikes could probably be rescinded if it was felt he was abusing it.
    After all, Bush managed to get the approval of Congress to engage in a war with Iraq based on false premises..all so he could settle a personal vendetta and make the region even less stable. I guess nothing is a guarantee. Either we didn't have the technology or it never occurred to Bush or Congress that perhaps a more targeted approach would have been better and more cost efficient.

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