As Inauguration Day wound down, President Donald Trump held court on the stage at Capital One Arena in Washington, D.C., signing one executive order after the next, flinging presidential pens into the adoring crowd. This scene, I’m quite certain, isn’t how the founders envisioned U.S. governance playing out.
Displays of republican virtue haven’t been trendy for a while. However, these days, it feels like the state is run on the whims of the top executive. Which is a problem, even if you’re sympathetic to the causes championed by your favorite presidents.
One of the attractions of executive power, obviously, is its hassle-free and politically expedient nature. As Clintonite Paul Begala once put it: “Stroke of the pen. Law of the land. Kind of cool.” However, if we claim to value peaceful transitions for their stability, what should we make of the fact that a growing chunk of domestic policy hinges on the vagaries of a new president?
And the arms race to make the legislative branch irrelevant is as much the fault of Congress as anyone, as it has spent decades relinquishing its constitutional powers and voluntarily handing them to the president.
Candidates now run for the White House as if they are imbued with autocratic powers, making increasingly insane promises. And voters, many of them apparently unconcerned about civic reality, not only accept this but demand it.
Now, it should be said that simply because the incoming president is making a regal show of executive power doesn’t necessarily make him its biggest abuser. You can’t just tally up the raw number of executive orders as a measure of overreach. Executive orders are often proclamations, aspirational, ceremonial, a managerial reorganization of federal agencies, or a lawful beginning of agency rulemaking.
Indeed, many of Trump’s executive orders and actions simply rolled back the previous administration’s extravagances. Ending DEI programs is well within the president’s purview since the executive branch instituted the policy in the first place. Trump is also well within his right to overturn former President Lyndon B. Johnson’s 1965 executive order that established affirmative action within the federal government. By doing so, in fact, he’s ensuring the state no longer engages in the unconstitutional practice of judging Americans by their skin color or sexuality.
But then, when was the last time a senator criticized his own party’s president when he really abused executive power? There are barely any genuine “institutionalists” left in Washington. Leaders of what is allegedly the world’s greatest deliberative lawmaking body — tasked with, among many other things, checking the power of the executive branch — regularly advocate the president to issue partisan diktats. Not one leading Democrat, as far as I can tell, spoke up when former President Joe Biden ignored courts and bypassed Congress to propose one blatantly unconstitutional student loan “forgiveness” plan after the next. They cheered him.
On this front, there isn’t much better hope for the next four years.
On Day One, Trump instructed the Department of Justice to pause enforcement of a bill banning TikTok in the United States. Not one of the GOP senators cheering the new Golden Age noted that the president was breaking the law, explicitly usurping the power of the legislature. The bill stipulates that the president can only temporarily delay enforcement if a deal to sell the social media property to U.S. investors is being finalized. There is no such deal.
Trump also promised to declare a “national energy emergency” to spike domestic production of fossil fuels.
“We will drill, baby, drill,” he promised in his inauguration speech. “We will be a rich nation again and it is the liquid gold under our feet that will help us do it.”
We’re already rich, richer than anyone, and it’s not even close. This is partly because the U.S. is the world’s largest producer of crude oil and natural gas and the top generator of nuclear power. If Congress wants to deregulate energy production and the executive branch wants to roll back limitations implemented by previous administrations, that’s fantastic. However, there’s no emergency. Congress should be working to rescind the National Emergencies Act of 1976, not asking the White House to use it.
Early in Biden’s term, Sen. Chuck Schumer (D-NY) beseeched Biden to declare a “climate emergency” so the executive branch could run the entire economy. If Trump creates this emergency precedent, cheered on by the GOP, what leg would there be to stand on when this happens next?
It’s gotten to the point where executive orders are now used to try and change the constitution. Biden literally tried to post an unratified Equal Rights Amendment into the Constitution last week. If Democrats really believed the 28th Amendment existed, the former president would simply have ordered the National Archivist to certify it. However, everyone knows SCOTUS would have immediately overturned this ridiculous contention.
Yet, we shouldn’t dismiss it as merely an act of performative partisanship. Democrats are normalizing the abuse of power. Once-respected organizations such as the American Bar Association cynically implored their members to act as if Biden’s fantastical decree was real. Georgetown Law School, which, alas, produces many of the bureaucrats running our state institutions, congratulated its members for getting the 28th Amendment passed. It is an effort to undo constitutional order. It is reminiscent of Democrats who treat the nonexistent “popular vote” as a measure of presidential legitimacy.
Well, not this time, I guess.
Less egregiously, Trump issued an executive order changing the decadeslong enforcement of birthright citizenship via the 14th Amendment. I’ll let constitutional lawyers rehash the arguments over whether “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” includes the children of illegal immigrants or even prospective citizens green card holders.
You can disagree with the court’s interpretation of the amendment thus far. You can disagree with the amendment itself even if the court’s interpretation is historically correct. We shouldn’t have presidents ignoring precedent with executive orders, as so many voters seem to believe they can. This is akin to Biden reinterpreting the individual right to gun ownership as a misreading of the Second Amendment and then proclaiming the law will now only protect militia members.
Even if the high court dispenses with precedent and agrees with Trump’s interpretation, Congress passes laws governing citizenship, not executives, and not by fiat.
The excuses are typically the same. Presidents will tell you that “gridlock” and “obstructionism” make it impossible to govern. Sorry, gridlock reflects the internal political state of the country. You can forge some kind of compromise on federal policy or do nothing. The inability to pass laws doesn’t magically make the president a king.
Speaking of kings, let’s remember former President Barack Obama’s DACA executive actions, a policy that is still operational. It was perhaps the clearest instance of abuse in recent political history, not only creating law from ether but deliberately and openly circumventing the will of Congress, which rejected bills that would have legalized the children of people here illegally. Democrats cheered DACA.
Criticizing the rise of executive power isn’t idealistic grandstanding. It’s a matter of practical governance. It’s a shame that voters have lost all patience for deliberative democracy, and parties treat process arguments as naive fluffery. Because if you want enduring change, legislation is the only way to do it.
As Obama learned, and Biden soon will, an agenda implemented by the pen can be undone by one. In 2016, for instance, Obama entered the Paris climate agreement without U.S. Senate ratification. Like the Koyo agreement, another treaty undermining U.S. energy dominance, it would never have passed in Congress. (Presidents get around the consent clause these days by cooking up euphemisms for international treaties — “accords,” “non-binding agreements,” and whatnot.) Well, when Trump became president in 2017, he immediately exited the agreement. Then, in 2021, a month into his presidency, Biden again reentered the international accord. On the first day of his presidency in 2025, Trump again removed the U.S.
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Back and forth it will go. This is no way to run energy policy.
Or anything else.
