Wielding Authority

Presidents seek to accomplish a set of goals and leave a legacy. Working with Congress to pass important legislation is one way to achieve their goals, but political stalemates often hinder the passage of laws the president wants. And even when congressional majorities support presidents’ goals, their deliberative pace can slow things down. For these reasons and others, presidents frequently rely on unilateral actions they can take without legislation to advance their agendas. These are typically referred to as executive orders, presidential memoranda or executive action. Although there is wide agreement that presidents have the authority to issue these orders, nearly all presidents push the boundaries of this authority. Sometimes these actions turn out well, and sometimes they don’t.

ADVANTAGES OF ACTING QUICKLY

One benefit of presidents’ use of executive authority is that it can sometimes provide an avenue for change that would be difficult, if not impossible, through the legislative process. Such was the case with President Harry S. Truman’s Executive Order 9981. Issued in 1948, Truman’s order required equal treatment of all members of the military “without regard to race, color, religion or national origin.” The order did not immediately desegregate the United States military, but it began an important process of eliminating segregated units. For many U.S. soldiers returning home from fighting for freedom and liberty overseas, Truman’s order was an essential step toward enjoying those same freedoms and liberties in their own country. Truman’s action established a precedent for desegregation, prompted similar action in the federal government more broadly and encouraged desegregation at the state level, particularly in the public schools.

Although the integration of the military was an important step in the long road toward racial equality in the United States, additional executive orders (and eventual congressional action) were necessary to effectuate that change in the public schools. Three years after the Supreme Court reached its 1954 decision in Brown v. Board of Education, many states, including Arkansas, refused to comply with the court’s order to integrate their public schools. President Dwight D. Eisenhower issued Executive Order 10730 deploying active-duty military troops and the National Guard to enforce the integration of public schools in Little Rock, Arkansas. Here again, the president was able to act quickly and decisively to take make critical progress in furthering the Constitutional guarantees of equal treatment under the law.

Another example of a president using an executive order to act quickly during a time of urgent need was President George W. Bush’s Executive Order 13228, establishing the Office of Homeland Security. Reeling from the shock of the Sept. 11, 2001, terrorist attacks, Bush acted quickly to establish an office tasked with developing and coordinating a national security strategy. The attacks highlighted problems posed by a decentralized national security system, and this new office would be an essential conduit of information between federal agencies and departments. More than a year after the 9/11 attacks, Congress passed legislation creating the Department of Homeland Security, but by issuing the executive order, Bush was able to move quickly to address the threat to national security.

HASTINESS COMES WITH RISKS

A clear example of an ill-advised and illegal presidential action was President Franklin D. Roosevelt’s executive order authorizing the internment of 100,000 Japanese Americans in camps during World War II. Although the Supreme Court said at the time that the internment did not violate the Constitution, nearly all commentators since then have considered it a blatant violation of the 14th Amendment’s guarantee of “equal protection of the laws.” It stands among the most shameful actions taken by our government.

It was through the Supreme Court’s review of another executive order, President Donald Trump’s 2017 order banning travel to the United States primarily from Muslim-majority countries, that the court essentially overruled its decision on Japanese American internment (Korematsu v. United States) saying it was “gravely wrong on the day it was decided … and has no place in law under the Constitution.”

Presidents have often used their powers to meddle in other countries’ business, too, with long-lasting consequences at home. After Mohammed Mossadegh was elected prime minister of Iran in 1951, one of his first actions was to nationalize the Anglo-Iranian Oil Co. This enraged the British government, which was reliant on Iranian oil for revenue. The British government in 1953 persuaded the United States, under President Eisenhower, to join them in efforts to oust Mossadegh from power. The CIA, no doubt with Eisenhower’s approval, launched an ultimately successful effort to overthrow Mossadegh. American involvement in Mossadegh’s ouster is part of what led to widespread hatred of the U.S. by the Iranian people and their view of the America as “the Great Satan.”

Another fiasco caused by unilateral action is commonly known as the Bay of Pigs. Fidel Castro came to power in Cuba in 1959 and immediately made himself a thorn in America’s side. Under President Eisenhower, the CIA began planning for an operation in which Cuban exiles would launch an invasion of Cuba, hoping to start an uprising that would remove Castro from power. This was a terrible plan, not least because Castro was at the time very popular with the Cuban people. The CIA sold newly inaugurated President John F. Kennedy on the plan, and it was launched in 1961. It failed miserably, and the invaders were all quickly captured. According to the plan, America’s backing of the rebels was to remain a secret, but it quickly came out that the United States was behind the effort. The situation was deeply embarrassing to Kennedy and the country, and the U.S. had to pay millions to free the captured invaders.

These are just a few examples of the outcomes that result from executive orders. There are many that are far more controversial and over which there is significant disagreement as to their effectiveness. One of the advantages of our system of separated powers and checks and balances is that when action is taken, it is often with broad agreement. While reaching agreement can be lamentably slow, that pace sometimes provides opportunities for deliberation that helps avert unwise decisions before damage is done. In other cases, urgency prompts executive action that sidesteps the separation of powers, sometimes for the better and sometimes to our detriment.