“We have but one rule - that every student must be a gentleman.”
— Robert E. Lee
Trump’s Executive Orders and the Unconstitutional Expansion of Executive Power

Trump’s Executive Orders and the Unconstitutional Expansion of Executive Power

By Dennis Hull ‘22

The election of Donald Trump in 2016 drew America into unprecedented right-wing populism that has created extreme partisanship on both sides of the aisle. Trump’s signature campaign promise of building a wall along the Mexican border was initially rejected in Congress last February as part of an expansive budget bill. However, shortly after signing the bill, the president declared a national emergency at the border, allowing him to redirect more than $8 billion to build hundreds of miles of fencing on the southern border. Although his emergency declaration was supported by many Republicans, it constitutes an unconstitutional and hypocritical overreach of executive authority that reveals a clear lack of principles within the bulk of the Republican Party.

In the Obama era, we witnessed an incessant tirade from Republicans against Obama’s slew of executive orders, especially against those involving immigration. Their arguments centered around constitutional limits on executive power, just as Democrats today call out Trump as a threat to democracy. In fact, both parties are right – Trump and Obama both circumvented Congress in order to implement their own agenda, Trump through a declaration of a national emergency and Obama through his controversial executive orders on immigration and healthcare. But this move is not unique to Trump and Obama. It merely carries on a presidential tradition of using executive power to accomplish things without the hassle of pushing an official bill through a divided Congress. Every president, Republican and Democrat alike, signed hundreds of executive orders and at least a few national emergency declarations. According to the National Archives, President Obama signed 276 executive orders during his 8 years in office. But George W. Bush also signed 291, Bill Clinton signed 364, and Ronald Reagan, the bastion of modern conservatives and the great proponent of limited government, signed 384 executive orders – more than any of the presidents who came after him. Even worse, FDR, in his thirteen years as president, signed a whopping 3,734 executive orders. Regarding national emergencies, Trump has signed 4, Obama signed 12, Bush signed 13, and Clinton signed 17. Clearly, the excessive use of executive authority is bipartisan, evidencing both parties’ tolerance of authoritarianism in the presidency.

Every single one of these orders is a presidential decree, essentially dictatorial in nature, signed by one man without the approval of Congress or anyone else. In a country where separation of powers forms the foundation of our republic, it is astounding to see that pillar of democracy has been eroded so easily, with a seemingly flippant use of power by every recent president, Democrat and Republican alike. Yet most Republicans today, who staunchly defend Trump’s declaration, seem to have reconsidered the principles of limited government that led them to protest the previous administration. Instead, many lawmakers justify the president’s declaration with the fact that that Obama (and other presidents) also circumvented Congress with their own policies. These legislators also seem to have adopted the idea that the president actually has the right to use such broad authority – but only on issues they see as important enough. Lindsey Graham, an ardent supporter of the president on immigration matters, defended Mr. Trump in an interview with NPR last March: “I think Congress is failing to do what it should do … I hate that the president has to use this statute. But it’s a statutory grant to the president. It’s been used 50 times. And I’m willing to support him this one time.”

There are many problems with Mr. Graham’s statement. First, he explicitly states that if Congress fails to do what he thinks it “should do,” the president should have the backup option of a “statutory grant” that gives him the power to fix the problem. The implication here is this: if Mr. Graham thinks something should happen and Congress fails to approve it, he will support the president in attempt to make it happen anyway – even if he “hates” that the president “has to use” that power. So much for the Constitution, which explicitly names Congress as the sole allocator of budgetary funds. Secondly, Mr. Graham says he is “willing to support him this one time.” What makes this “one time” unique for the senator? According to his own logic, would Mr. Graham not also approve an executive order to replace Affordable Care Act, or to enact any other policy proposal of his choosing, if he thought it was important enough? Mr. Graham fails to recognize that Trump’s version of an emergency declaration does not reflect “a statutory grant to the president.” At the center of the issue is a budgetary bill passed by Congress, which explicitly allocated $1.375 billion for a border wall – far short of the $5.7 billion Trump had requested. The National Emergency Act of 1976 does not give Trump the authority to take apart the budget bill and allocate an arbitrary amount of money toward an “emergency” that Congress has clearly rejected as a real emergency. The president has never had the authority to override congressional power of the purse and directly alter the legislative process in such a manner. Mr. Graham would do well to understand the National Emergency Act for what it is, not as a grant of unlimited power to the president.

The hypocrisy of congressional Republicans extends to President Trump himself. After Obama announced a wave of executive orders on immigration in 2014, Trump tweeted: “Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress.” But the president’s emergency declaration is exactly like Obama’s controversial executive orders: a result of his inability to negotiate with Congress. It was the only way to reopen the government after a long, painful shutdown while also getting wall money. In essence, the declaration allowed Trump to end the unpopular shutdown while also getting the wall money Congress refused to approve, even though he criticized Obama for precisely the same maneuver five years ago. Trump clearly does not maintain any set of concrete principles or respect for the Constitution, and unfortunately neither does most of his party.

Executive power has become a problem in the United States. It threatens the very foundations of America’s constitutional republic and the separation of powers. The Republican Party, which was once a defender of liberty and the founding principles, has largely rallied behind a somewhat authoritarian president and defends Trump’s blatant contempt of Congress. Trump-supporting Republicans like Lindsey Graham have lost their principles and their self-respect. Justin Amash, a Republican dissenter, puts it well: “The same congressional Republicans who joined me in blasting Pres. Obama’s executive overreach now cry out for a king to usurp legislative powers. If your faithfulness to the Constitution depends on which party controls the White House, then you are not faithful to it.”

We voters are left with a depressing choice between two parties that are both fine with a powerful president – but only if the president’s orders line up with their own agenda. We must do our best to redeem the Republican party from the irrational populism which threatens to take away our last hope of reviving the Founders’ vision for America. This is not about a wall. This is about the future of our Constitution and of our country.

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