Is This President ‘Not Allowed’ To Make Executive Orders?

The idea that the president is not allowed to create executive orders seems absurd.

According to HowStuffWorks, “Executive orders have been used by every American president since George Washington to lead the nation through times of war, to respond to natural disasters and economic crises, to encourage or discourage regulation by federal agencies, to promote civil rights, or in the case of the Japanese internment camps, to revoke civil rights. Executive orders can also be used by governors to direct state agencies, often in response to emergencies, but also to promote the governor’s own regulatory and social policies.”

So apparently, executive orders have been used by every president since George Washington.

Well, has the President made “too many” executive orders?

According to the chart above, the President has issued fewer executive orders per year than any since prior to FDR.

According to Talking Points Memo, his overall number of  executive orders come out to “less than 0.1 for every day he’s been in office. FDR, by comparison, was cranking out close to one per day as he faced the Great Depression and World War II. The first half of the 20th century was the prime time for execution action, at least when measured by executive orders per day in office.”

TPM does state that the simple totals “cannot account for the scope and tangible impact of individual executive orders or incorporate other elements of executive power,” which is understandable.

Don’t Republicans need to prove that the President’s executive orders have been too broad in scope?  Shouldn’t they try to make that case?  What are they waiting for?

It is clear that every president since Washington has the authority to issue executive orders, and President Obama has issued far fewer than most other presidents in recent times.

One more question:  is the President allowed to issue executive orders on the subject of immigration?

As noted in a previous post, according to the New Republic, both Presidents Reagan and Bush took executive action on immigration (as Obama wants to). The Atlantic’s David Frum wrote about Reagan’s executive actions on immigration. “Reagan and Bush acted in conjunction with Congress and in furtherance of a congressional purpose,” Frum writes. “Nobody wanted to deport the still-illegal husband of a newly legalized wife.

“Reagan’s (relatively small) and Bush’s (rather larger) executive actions tidied up these anomalies.”

In other words, it would be unfair if Reagan and Bush deported children and spouses of newly-legalized immigrants. In fact, Bush’s executive action was called the “family fairness” program.

According to USA Today, the younger George W. Bush “…issued a number of small-bore executive orders — to expedite citizenship for immigrants in the military, or to defer deportation for students affected by Hurricane Katrina…”

So it seems pretty clear that every president is allowed to make executive actions and that Obama has made fewer than most presidents since World War II.  It is also clear that Reagan and both Bushes created executive actions on immigration policy.  So that must also be legal.

The question is:  what are the grounds for a lawsuit, impeachment, or the claims of lawlessness?

Republicans have not made their case for how executive orders on immigration – or other policies – are illegal.  This is especially true since Reagan, George H.W. Bush, and George W. Bush all made executive orders on immigration.

Obviously, the only thing left is that the President’s executive orders have possibly been too broad in scope.

However, according to the New York Times, “(m)ost of the major elements of the president’s plan are based on longstanding legal precedents that give the executive branch the right to exercise ‘prosecutorial discretion’ in how it enforces the laws. That was the basis of a 2012 decision to protect from deportation the so-called Dreamers, who came to the United States as young children. The new announcement will be based on a similar legal theory, officials said.” [The New York Times,11/13/14]

If so, then Republicans need to prove that his executive orders have been too large in scope.  Enough of the broad language about how he’s a “king” and an “emperor.”  Get to it and prove this point.