The current controversy over President Barack Obama’s use of executive orders has many Republicans steamed and Democrats on the defensive. But has the President really issued more orders that his predecessors?
In terms of executive orders, quality counts as much as quantity, and several significant Obama executive orders have some conservatives rallying around a lawsuit against the president, as well as threatening impeachment.
The current House lawsuit in progress is focused on a Treasury Department notice, and not an executive order. But House Speaker John Boehner said recently that while his lawyers focused on one subject – a delay in Obamacare’s employer mandate – he was also offended by President Obama’s use of executive orders as an alleged policy tool.
“Congress makes the laws; the president executes them. That is the system the Founders gave us. This is not about executive orders. Every president issues executive orders. Most of them, though, do so within the law,” Boehner said in a USA Today editorial in late July.
One executive order is now at the forefront on the current immigration debate: a 2012 order known as the Deferred Action for Childhood Arrivals (DACA) program. The action, taken during a presidential campaign, allowed people under 30 who came to the United States before the age of 16 to get a two-year deferral from deportation, under certain conditions.
President Obama said in his last two State of the Union addresses that he would use orders to meet policy goals if Congress didn’t act on certain requests.
In January 2013, President Obama issued 23 executive orders as part of his anti-gun-violence program. And this year, he used the speech to announce an order to increase the minimum wage for some federal contract workers.
"America does not stand still, and neither will I," Obama said. "So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do,” he said in his speech.
So how is an executive order different from a law? According to USA.gov, the federal government’s official website, “presidents use executive orders to direct and manage how the federal government operates.”
The order is a directive from the president that has much of the same power as a federal law. And like a federal law, Congress can pass a new law to override an executive order, subject to a presidential veto.
With the Democrats controlling the Senate, the chance of a successful veto of an executive order would be slim at best. For its part, the Supreme Court can overrule an order in the same way it would find a law unconstitutional.
In historical terms, there have been significant decisions made via executive order or its ancestor, the presidential proclamation.
President Abraham Lincoln suspended the writ of habeas corpus during the Civil War using a presidential proclamation, and two orders comprised Lincoln’s Emancipation Proclamation.
President Franklin Roosevelt established internment camps during World War II using Executive Order 9066. Roosevelt also used an executive order to create the Works Progress Administration.
And President Harry Truman mandated equal treatment of all members of the armed forces through executive orders.
However, Truman also saw one of his key executive orders invalidated by the Supreme Court in 1952. The Court ruled in Youngstown Sheet and Tube Co. v. Sawyer that an order putting steel mills under federal control during a strike was invalid.
“The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” the court said in its majority opinion.
President Roosevelt issued the most executive orders, according to records at the National Archives. He issued 3,728 orders between 1933 and 1945, as the country dealt with the Great Depression and World War II.
President Truman issued a robust 896 executive orders over almost eight years in office.
President Obama has issued 184 orders so far in his presidency. His predecessor, President George W. Bush, issued 291 orders over eight years, while President Bill Clinton had 364 executive orders during his two terms in office.
The American Presidency Project keeps tabs on executive orders and their historical counterparts dating back to the George Washington administration. The presidents who used orders and proclamations the most, per year, were Roosevelt, Herbert Hoover and Woodrow Wilson.
Moreover, President Obama has issued the fewest executive orders per year, at 33.27 annually, since President Grover Cleveland’s first term in the White House.
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