The Use and Abuse of Executive Orders, From Washington To Obama

Photo courtesy of the White House via Wikimedia Commons

In his 2014 State of the Union Address, President Obama surprised many by proposing various executive orders — actions that bypass Congress approval to further policy changes without debate.

We’ve written already about his action to establish climate hubs and the retirement plan MyRA, and in November of 2014, the president outraged many by passing an immigration reform by executive edict that will provide citizenship for undocumented parents of children born in the U.S.

In light of this surplus of controversial executive orders, our current administration is actually comparatively behind in executive muscle flexing with 193 executive orders as of November 2014.

National Archives have on record the details of executive orders dating back to FDR, and the American Presidency Project has these orders by amount dating all the way back to Washington.

Graph from Wonkviz, created by Christopher Ingraham.

Executive orders: how they work

But despite their frequency, executive orders are not mentioned in the Constitution aside from some vague wording in Article II Section 1 and Article II Section 2.

And while executive orders historically related to internal operations within federal agencies of the executive branch,  this has changed more recently as presidents use it to carry out legislative policies and programs.

These orders have the force and effect of law, though they can be struck down by Congress or challenged in court if found unconstitutional. There have been blurred lines in this respect in the past, and allegations of such violations today.

Early orders

Though executive orders would not be named until 1862, Washington made several, including his proclamation in 1793 that America would be neutral in the war between France and Great Britain — an order that some, including James Madison, claimed to be an infringement of Congress, the Heritage Foundation says.

Abraham Lincoln also famously made what some call lawless executive orders in the onset of the Civil War, used to activate troops to defeat the Southern rebellion and expand military size with Treasury funds — the latter example verging on unconstitutional, but passing due to wartime crisis.

From FDR to Bush

By far, Franklin D. Roosevelt sets the record for most executive orders, with 3,522 issued during a 4,422 day long term — a rate of nearly one order per day.

Most infamously, in the midst of WWII hysteria, FDR’s executive order #9066 authorized the decade-long detainment of tens of thousands of Japanese-Americans, violating the Bill of Rights and inflicting permanent damage on these individuals and their families.

Since FDR, executive orders have also been used for integration of armed forces and public schools by Truman and Eisenhower.

But they have also caused more controversy, as Ronald Reagan’s executive order #12333 established and empowered the NSA, with further orders by George W. Bush approving aggressive surveillance post-9/11.


Where does Obama stand?

Today, with 193 executive orders thus far in his presidency, Obama has signed the lowest amount since George Bush Sr. Still, he’s received wide criticism for bypassing Congress due to what the president referred to as a lack of cooperation, and what others have referred to as a disregard for the constitution.

The amount of executive orders does not disregard the type of orders being made, however, and many argue that some of the Obama administration’s decisions are overstepping legal boundaries.

We measure success by the understanding we deliver. If you could express it as a percentage, how much fresh understanding did we provide?

Originally published on March 5, 2014. 

Jennifer Markert