Don’t Listen to the Media About Executive Orders
In the first ten days of his administration, President Jo Biden has issued 42 Executive Orders with even more sure to follow. However, the media in Washington and on much cable news tries to downplay the importance, and frankly, the power that these actions embody and are solely vested in the President of the United States.
Most reporters caveat their characterization of these actions by highlighting their apparent impermanence as the successor to a president can reverse an executive order with the stroke of a pen. But in our system, there are only two other ways a presidential executive order can be nullified, which is by court order or by being superseded through law passed by Congress.
To be clear, presidential executive orders have the force of federal law. Every person and entity under federal jurisdiction is bound to comply with presidential executive orders. While there is no explicit provision for executive orders in the Constitution, the legal consensus as to their validity, according to the National Constitution Center, rests in Article II of the U.S. Constitution which indicates that it vests executive powers in the President, makes him the commander in chief, and requires that the President “shall take Care that the Laws be faithfully executed.”
Journalists are being disingenuous when they try to minimize or are just plain inaccurate when they characterize executive orders as “just temporary” or aspirational. Indeed, United States history is replete with presidential executive actions that have endured for years if not slipped into permanence, and have been consequential in forever changing the trajectory of public policy or American society itself.
Probably most famously, the Emancipation Proclamation was such an executive order. The consensus among many historians is that Abraham Lincoln’s order to free enslaved Africans changed the course of the Civil War. It would also lead directly to the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution.
The action by President Harry Truman to desegregate the armed forces in 1948 was another consequential executive action. To that point it was probably the most compelling conceptual test to the idea of desegregation and would be instrumental in unraveling Jim Crow in practice until it could be codified in public law by Lyndon B. Johnson’s efforts to pass the two most important pillars of civil rights legislation — the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
The creation of the Federal Emergency Management Agency (FEMA) by President Jimmy Carter was also done by executive order. President Franklin D. Roosevelt would help usher the United States, and subsequently the world, into the atomic age with the order that authorized the Manhattan Project.
Roosevelt will also forever bear the shame of one of the most egregious executive orders. His directive to place Japanese American into prison camps during World War II inflicted unimaginable harm done to that community.
Similarly, poorly designed and haphazardly implemented executive orders can also do great harm. President Donald Trump’s order to ban travel from a number of predominantly Muslim countries led to mass chaos and confusion at airports around the world. It also caused great fear and uncertainty among Muslim families the world over and would ultimately require a decision by the Supreme Court before if could be legally implemented.
It is a symptom of our hyper-politicized, short-sighted, entertainment based media framework that has led to inaccurate reporting on what executive actins are, how presidents use them, and how truly consequential they can be, not only for American citizens but throughout the world.
It is too early to tell now, but it is a fair consideration that President Biden’s 42 executive actions issued in the first 10 days of his presidency will be closely studied, given the confluence of grave crises American faces, from pandemic, to deep recession, to an attempted coup that was implicitly engineered by his immediate predecessor. In this moment of crisis as at any time in American history, executive orders helped to shape the United States, often for better but sometime in direct contradiction to its founding ideals. This is the unique characteristic of presidential executive authority.
