American presidents have issued executive orders since George Washington was in office. Article Two of the Constitution gives the president the legal foundation to issue executive orders to provide guidance to those who work with him. Most executive orders are directed to officials who serve at the pleasure of the president, many of whom have been confirmed by the Senate, to do two things: articulate the policies he wants put in place and help establish priorities.
Recently, executive order directives have eclipsed actual legislation. President Trump has signed 147 executive orders, setting a record for the most signed in any president’s first 100 days of office. By contrast, Trump has signed only five bills into law, a record low for the first 100 days.
In this conversation, Roger Porter, the IBM Professor of Business and Government, explains what executive orders are, why and how they have historically been used, and why Trump may be favoring them now.
A Harvard Kennedy School faculty member since 1977, Porter served for more than a decade in the White House under Presidents Gerald Ford, Ronald Reagan, and George H.W. Bush. Porter is the author of several books, including Presidential Decision Making and Efficiency, Equity and Legitimacy: The Multilateral Trading System at the Millennium. His vlog course, The American Presidency, analyzes presidential leadership, including the political resources and constraints that influence a president's ability to provide leadership in the U.S. political system.
Q: How do executive orders differ from a law that is passed by Congress?
Porter: A law must be signed by the president and is generally the product of a negotiation between the two branches of government on a particular policy area. Legislation also includes the authority to appropriate money and to expend it. Executive orders are simply signed by the president, primarily to direct the officials in the executive branch, but they do not have the same force of law. That is to say the president cannot order the expenditure of money that has not already been appropriated for some purpose.
And while there are really no formal limitations on what a president can do through an executive order, it has to be grounded in one of two things: the Constitution or in some statute that has been enacted by passing both houses of Congress and signed by the president.
A president can’t just make up whatever he wants and announce it in an executive order.
Take President Trump’s executive order to dismantle the Department of Education as an example. This is going to be decided in the courts because it is the province of Congress to create a department. The president can set up an organization, but he cannot create a department on his own through an executive order nor can he abolish a department. He can try to transfer some of its responsibilities from one location to another. This is one of the many court cases we will see in the coming year, testing to what extent a president can in fact use executive orders to accomplish his policy objectives.
Q: How has the use of executive orders changed over the years?
Porter: As government has grown and in particular in the last quarter century, we have seen an increased uptick in the use of executive orders, in part because government has gotten larger and its activities have expanded, but also in part because we have entered into a much, much more polarized political environment in which getting things successfully through both houses of Congress and signed by the president has taken more time and is often more problematic. So if you have the choice of doing something through an executive order, you are very likely to avail yourself of that because it is quicker and faster and in the short run more certain.
“Wise presidents seeking to exercise power effectively over the long term, take into consideration the effects both immediate and longer term, of how others are going to respond and react to the actions that they take.”
Q: How are executive orders enacted and enforced?
Porter: While there are very few limitations on what the president can put in an executive order, there is nothing that stops him from doing that. But when he does issue an executive order, it can be checked in a number of ways. One is through the courts. If you believe that the president has exceeded the authority that he has been given either under the Constitution or through an existing statute, then you can file a court case claiming that he has exceeded his authority. And if you look at the executive orders that President Trump has issued in the first one hundred days of his second term, almost 30% of them now have been challenged in court and many of them are now being decided by the courts whether or not they will in fact go into effect.
Secondly, if the Congress doesn’t like it, they can pass a statute that would prevent this executive order from remaining in effect. But that’s very unlikely to happen because the president, who has issued the executive order, can veto a piece of legislation and you would need two thirds of both the House and the Senate to override that. That is not a very effective way of stopping it.
But the third, and in some ways most powerful way, is that there is nothing prohibiting a president’s successor from coming into office and immediately revoking previously issued executive orders. In fact, this is now routinely done by every president who comes in and wants to reverse what has gone on in the past. It’s the pendulum effect, if you will, in American government. And the more you use any particular tool, the more you’re going to build up resistance to the use of that tool.
Q: Is that effective governing? Each new administration reversing the executive orders of the previous one?
Porter: I think it is better to think of it as redirecting policy. We have a huge government that spends trillions of dollars every year. There are thousands of enforcement actions, grants that are made, all sorts of things that are done. And in a very powerful sense, the American political system is highly incremental. At the same time, there is an intense desire on the part of many people, including presidents, for action. And so you very frequently get the desire to look like you are doing things.
The one thing you can be quite confident of as president is that when you take an action, others are likely to respond, some immediately, but they are rarely willing to let you simply dominate a particular policy area.
Q: Is the use of executive orders a sign of weakness or strength in a presidency?
Porter: In fact, they’re both. They are highly visible. Executive orders look like the president is in charge. They send a signal to the president’s supporters that he is taking action. They are a dramatic way of signaling that someone is in charge and things are getting done.
At the same time, they are weak in that they are impermanent and relatively easy to overturn by a successor or by the courts. And there is the matter of opportunity cost, because when you focus so intensely on doing things by executive order, you are by definition not devoting the time, attention, effort, and energy of the people around you to passing legislation.
Right now we have a Republican president and slender Republican majorities in both the House and Senate, but we’ve seen very little legislative activity. And in part that’s because the attention has been focused almost exclusively on executive orders and actions.
Q: In your experience, what are some executive orders that have been successful for the country?
Porter: Executive orders have been used by presidents in a wide number of ways. Many of them are useful ways to engage people in the private sector to work on problems. And many of them are simply to undertake particular studies and evaluations that can then be useful to policymakers in subsequent years to better understand the problem that an administration is facing.
Harry Truman determined by executive order to desegregate the armed forces—they had been segregated up through 1948—including throughout the Second World War. Rather than seek a piece of legislation, he accomplished the desegregation of the armed forces successfully through the use of an executive order.
President Eisenhower sent the 101st Airborne Division to Little Rock in 1957 to protect the students when they were desegregating Central High School. That was a very dramatic use of his resources as commander in chief to implement the Brown v. Board of Education decision three years earlier, which had been stalled and nothing had been done.
When President Reagan came into office, he was very interested in trying to increase productivity growth in the United States. One of the executive orders that he issued was establishing a national productivity advisory committee. The committee was full of very talented people from outside the government, including many Harvard professors, who worked with one another and developed 44 specific recommendations for the president to consider. They did this in conjunction with the economic policy officials in the Reagan administration and 43 of the 44 recommendations were adopted.
President George H.W. Bush did the same thing with education. He created the President’s Education Policy Advisory Committee, developing recommendations for national standards and testing in education that were embraced by the administration and the Congress and ultimately led to the national education goals that he articulated.
A negative example would be the wage and price controls that President Nixon imposed in the early 1970s. He had the authority to do so, but they turned out to be highly problematic, and didn’t work he had hoped. The price controls were ultimately repealed on June 30, 1974. And in the next three months, the U.S. experienced an outburst of inflation in which the wholesale price index increased at an annual rate of 37%.
That was the most explosive outburst of inflation in U.S. history because the wage and price controls, which had tried to hold things in place for roughly three years, suddenly were taken off and inflation exploded.
Q: Are you surprised by the number of executive orders issued by President Trump?
Porter: In the first one hundred days of his second administration, President Trump has issued a flurry of executive orders. Why? In part, it’s because he had four years to think about and plan and prepare for this. Seventy percent of the country thought that we were going in the wrong direction. And a group of people who had been with him during his first four years and who had remained with him during the next four years, did an immense amount of planning of what they wanted to do using executive orders.
So in that sense, we should not be terribly surprised by what has happened. What is in doubt is what is going to be the effect of these executive orders, and to what extent they can be maintained against challenges in the courts, challenges by the Congress, and challenges to them by whoever succeeds the current president.
Wise presidents seeking to exercise power effectively over the long term take into consideration the effects, both immediate and longer term, of how others are going to respond and react to the actions that they take.
—
Banner image: Photo by Jabin Botsford /The Washington Post via Getty Images.
Inline image: Photo by Bettmann via Getty Images.