Executive Order

"They want what every first-term administration wants--a second term."
--Robert Ritter (Clear and Present Danger)

American presidents have been issuing executive orders ever since the ink was drying on the Constitution. Early executive orders were informal and undocumented. It was not until 1907 that executive orders were formally numbered and archived (at that time, orders back to the Lincoln administration were retroactively captured as well).

There is no Constitutional provision that explicitly permits executive orders. When challenged, presidents claim that they are merely acting in accordance with the 'executive power' clause (Article 2, Section 1). This is a problem because the framers clearly intended for the legislative branch of the federal government, Congress, to be in charge of lawmaking. Because there is a gray area between making law and executing it, any president seeking to 'take the law into his own hands' possesses a potential vehicle for doing so in the executive order.

A straightforward conclusion of anyone who has studied this country's founding is that the founders did not intend for the executive branch of the federal government to possess as much power as it does today. And it is easy to posit that the executive order has been a primary mechanism for presidents to assimilate power.

Which president holds the record for most executive orders? I was fairly certain of the answer before looking it up. FDR issued an astonishing 3,466 executive orders during his tenure. His successor, Truman, was the second most active with 893. The 4000+ orders issued by these two administrations are more than all executive orders issued by subsequent administrations combined.

The backdrop of the FDR and Truman administrations was the Great Depression and WWII. It is during such times--times perceived as crises--that people are more willing to cede power to a central authority (Staw, Sandelands, & Dutton, 1981). It follows that rulers hungry for power will exploit those times. The executive order can help a president circumvent the Constitution and consolidate power.

This leads to the following proposition: The more difficult the times, the more likely that presidents will employ executive orders.

In the past few weeks, it seems increasingly clear that the Obama administration wants to use executive orders to implement its agenda. The president has been stating that he 'does not want to wait for Congress,' and argues that the tough times that we live in demand that he take action.

Of course, he also has an election coming...

Hard not to sense an FDResque deja vu moment. And if our proposition holds, we're likely to witness a tidal wave of executive orders from a president who, as famously stated by his former chief of staff, will not want to let a crisis go to waste.

References

Staw, B.M., Sandelands, L.E., & Dutton, J.E. 1981. Threat-rigidity effects in organizational behavior: A multi-level analysis. Administrative Science Quarterly, 26: 501-524.