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WEEKLY WASTEBASKET GUEST OPINION: Executive Actions Don’t Replace Legislation

 The president needs to work with lawmakers to effect durable change


Weekly Wastebasket | January 29, 2021

With a new administration comes a flurry of executive actions (Executive Orders and Proclamations) directing the Executive branch on how to operate. Or in many cases on how not to operate – repealing previous executive orders. EOs have been around since our nation’s first president and won’t go away anytime soon. What has changed is the number and nature of executive orders issued. And while a

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flick of the pen and scribbled signature on a document proclaiming this and that may feel good and seem like progress, durable change only comes through enacting legislation.

FDR by far issued the most EOs with 3,728 spanning his thirteen years as president, from the Great Depression through World War II. Presidential EOs since 1981 have been less numerous. Ronald Reagan issued 381 executive orders over two terms, George H.W. Bush issued 166 during his one term, Bill Clinton issued 364, George W. Bush issued 291, and Barack Obama issued 276 during their two terms respectively. Donald Trump racked up 220 during his single term. As of this writing, Joe Biden has issued 25 executive orders and 3 proclamations.

According to the Congressional Research Service executive orders are typically directed at executive branch officials and instruct them on how to manage agency operations, proclamations generally actions involving that outside of government. There’s nothing wrong with that since the president oversees the federal bureaucracy. But presidents can use them to shape policy and alter how government agencies implement the law. This is where things can get dicey for the American people.

In general, Congress, not the president, should decide how to implement the law since they’re the ones who write the law. And history shows how EOs can be either amended or repealed by successive administrations. In fact, every president over the last few decades has revoked many of his predecessor’s EOs. This does not help ensure continuity, longevity, or ultimately the success of policy on a national scale. For the policy to endure, and provide stability, President Biden would do well to work with Congress to pass legislation, which would solve problems more effectively than executive orders.

Another lasting and negative consequence of EOs is that it undermines Congressional intent and leads to unpredictability. Case in point, funding the border wall. In a “Proclamation” on inauguration day, President Biden terminated the “emergency” declared by former President Trump and redirected the funds diverted to that construction. When it comes to the termination of federal contracts there are some things that only the Contracting Officer is allowed to direct and that person’s decisions must be free of political interference. However, federal contracts may be terminated for the so-called “convenience” of the government. Terminations for Convenience do have additional costs to the government, and we’re on the record calling the border wall an ultimately useless and wasteful expenditure on border barriers. This particular executive action may in fact be well worth it and is intended to undo previous executive action. But it would be better, and lasting if the Executive branch worked with lawmakers to enact legislation to achieve results rather than have the president make a declaration that may just get reversed if circumstances changed with another election.

Another such example of what EOs risk if they become regular practice is President Biden’s executive order on climate change and agriculture. According to the White House’s fact sheet, the order directs the Secretary of Agriculture to collect input from farmers, ranchers, and other stakeholders on how to use federal programs to encourage the adoption of climate-smart agricultural practices that produce verifiable carbon reductions and sequestrations and create new sources of income and jobs for rural Americans. But there are already programs established through the Farm Bill process passed by Congress that do just that. All the president’s EO does is create additional hurdles towards implementation when we should be removing the disincentives to the adoption of climate-smart agricultural practices through debate in the Farm Bill. And that’s Congress’ job. To create a policy that lasts more than an administration and would be more equitable by providing more voices at the table.

Executive orders and proclamations have their place. But too often they paper over legislative inaction. The Executive branch has a responsibility to put its shoulder to the wheel and work with lawmakers who are charged with the power of the purse and the ability to write law under our constitution. Relying on EOs creates the appearance of an imperial presidency coupled with the impermanence and unpredictability of who happens to be wielding the pen at any given time. Legislation, not executive orders, is the more effective and enduring way to set policy and solve our nation’s problems.