I don't normally write about current politics on this blog - for obvious reasons. However, I saw a tweet the other day that not only made me shake my head, it also gave me a great idea for a post. Plus an opportunity to dig into a subject I always wanted to learn a little more about: the history of presidential executive orders.
First of all, the tweet. I don't recall the exact wording because I only saw it in passing, but it implied that President Obama was the first to issue an executive order.
Uh, no...That honor would go to none other that GW. (For those of you who believe the world started when you were born, GW stands for George Washington, not Bush 43.) Good ol' George actually issued eight executive orders for an average of one a year. Really, two a year since he didn't issue the first until 1793.
Quick aside: Any perceived support for one side of the other is unintentional and more likely the result of reader bias or my lame attempts at political humor.
Were they constitutional?
But, before we dig further into what exactly the executive orders were, we need to dispel the notion that all executive orders are, by definition, unconstitutional.
First, there is no specific provision in the Constitution, which explicitly cites the power of the president to issue an executive order. However, a Supreme Court ruling determined that the Constitution must support the order via a clause granting a specific power to the president or that power must be delegated to the president by Congress.
Therein lies the rub, as they say. Executive orders that have the force of law would normally be considered unconstitutional since the Constitution explicitly grants the power to make law to Congress. Theoretically at least, no other vague statements in the Constitution can grant that power to the president. Congress can grant that power, but I believe they have to explicitly do so. "Refusing to act" does not automatically transfer said power.
Quick aside: I am not a lawyer, Constitutional or otherwise, I am just a fan of the rule of law and really interested in these things to boot.
Washington gives the order
Washington's 1st executive order is a good one to examine. Issued in 1793, it gave instructions to federal officers to prosecute any American interfering in the war between England and France. This is at the height of the French Revolution. King Louis XVI lost his head in January of that year, and the Reign of Terror began in the fall. George Washington was eager to keep his fledgling country from getting involved while notables like Thomas Jefferson and Thomas Payne were actively supporting the French. Payne came close to losing his head for his efforts, but I digress.
If you look at the order, you might claim that this order clearly has the force of law. I would agree. However, Congress was out of session at the time. He could have called them back, a long and somewhat unproductive process given that our first lawmakers often had "day jobs" and a horse can only travel some 20-40 miles a day. (The average Congressman's backside could probably handle less.) Having a pen but no phone, the President signed the order. It should be noted that once Congress was back in session, they issued the Neutrality Act of 1794 in support of the order.
Another quick aside: Does anyone know if Congress ever explicitly granted the president the power to issue executive orders when it was not in session? I am aware of the appointments clause, but I don't believe that applies here.
A few more tidbits
I'll close with a couple more things I found interesting during my research. These stats are all courtesy of The American Presidency Project.
Did every president issue executive orders? No. Harrison alone did not issue a single one, but then he was only in office 32 days before dying of pneumonia complications. Adams, Madison, and Monroe issued one order a piece. Thomas Jefferson, that quintessential supporter of limited government, issued four.
How many has President Obama issued? Most of you will look this up, so I might as well tell you. The American Presidency Project has him at 227 as of Dec 31st. Those numbers are updated every 30 days, and as we're probably all aware, he's issued at least one in January 2016 already.
Who has issued the most? So far, that dubious honor would fall to Franklin D. Roosevelt at a whopping 3,721. Given three guesses, I'm sure most of you would have nailed that one, but even with my active study of history, I was surprised it was so high. Woodrow Wilson took 2nd place at 1803. Again, no surprise. However, number three was Calvin Coolidge at 1203. I guess all that time "Silent Cal" wasn't talking, he was signing.
Your additions welcome
Some of you have probably studied the history of executive orders in much more depth than I. An unfortunate few might even be lawyers. (Sorry, I could resists. Love you guys!) If you have clarifications, additions, or corrections, I would love to learn more.