Executive Orders Are a Constitutional Judgment Test, and We Keep Failing It

Stop counting executive orders. Start counting constitutional violations.

Every four or eight years, the country discovers the executive order as if it were a brand new invention. One side defends the president's pen as decisive leadership. The other side condemns that same pen as authoritarian. The press publishes bar charts of orders signed. Pundits compare this president's total to that president's total. And almost all of it misses the only question that actually matters.

The Constitution nowhere contains the phrase executive order. That absence is not a technicality. It is the beginning of the entire argument. The document does not divide government authority into things Congress does and things the president does when Congress is annoying. It divides authority into lawmaking and law-executing, and it assigns those powers to different branches on purpose.

Article I, Section 1 is blunt. All legislative Powers herein granted shall be vested in a Congress of the United States. Article II, Section 1 vests the president with the executive Power. Article II, Section 3 says the president shall take Care that the Laws be faithfully executed. There is no third category in that text. The president can carry out laws Congress has passed. He cannot use a pen to create, amend, or suspend them. Once you see that plainly, the modern executive-order debate stops being about ideology and starts being about constitutional literacy.

The Two Kinds of Orders Nobody Wants to Name

There are legitimate executive orders and illegitimate ones, and the difference is not whether you happen to like the policy.

An order that directs the executive branch to implement a statute is constitutional. If Congress passes a law requiring certain border security measures, the president may order the relevant agencies to carry it out. If Congress appropriates money for a program, the president may order agencies to spend that money in accordance with the law. That is the executive power doing its job.

An order that changes the law is not constitutional. If the president orders an agency to stop enforcing a statute, to rewrite a statutory definition, to create a new right or obligation Congress never enacted, or to spend money on a program Congress refused to fund, he is no longer executing law. He is legislating. And the Constitution vests legislative power only in Congress.

This distinction does not depend on how many orders a president signs. One order that legislates is more dangerous than one hundred orders that faithfully execute the law. Counting orders is a spectator sport. Counting constitutional violations is a constitutional duty.

If a president forgives hundreds of billions in student loans without Congress appropriating the money, that is not faithful execution. If a president instructs agencies not to enforce an immigration statute because he disagrees with it, that is not faithful execution. If a president orders the government to recognize a legal status that Congress repeatedly declined to create, that is not faithful execution. Those are attempts to legislate alone, and they should alarm everyone who believes in a republic of laws.

Congress Is the Real Villain

Here is the part most people miss. The modern executive order is usually not the president's original sin. It is the downstream product of Congress's decades-long decision to stop governing.

Congress now routinely passes vague statutes that say, in effect, the Secretary shall regulate. It hands enormous policymaking power to unelected agencies. Then a president comes along and orders those agencies to do what he could not get through the legislature. In legal terms, this is the nondelegation problem. Article I vests legislative power in Congress, and Congress cannot delegate that power to the president or the bureaucracy.

But that is exactly what has happened. Congress did not vote on the details of most of the rules that govern our lives. Agencies wrote them. Presidents have increasingly used executive action to direct those agencies. So when you hear that a president signed an executive order to impose a new mandate or cancel a debt, ask which statute actually authorized it. If the answer is a vague delegation or a law passed decades ago, you have identified the deeper sickness.

Congress likes this arrangement. It gets to campaign on problems without ever making hard choices. It gets to blame the president for outcomes that the president's executive order produced. And it avoids accountability. That is not the Constitution the Founders wrote.

James Madison warned in Federalist 47 that the accumulation of legislative, executive, and judicial power in the same hands is the very definition of tyranny. A Congress that delegates its lawmaking power to the executive is not being generous. It is committing a slow-motion constitutional violation and calling it convenience.

The separation of powers is not a suggestion. It is a structural protection for liberty. Madison made the point again in Federalist 51. If men were angels, no government would be necessary. The Founders separated powers precisely because they knew that concentrated authority would eventually be abused. An executive order that legislates is the very concentration they feared.

The Ratchet You Cannot Un-Sign

There is a reason all of this matters even if you like the current executive order. Executive power is a ratchet, not a light switch. Every time a president claims authority to do something unilaterally, he builds the office for the next person who holds it.

This is not a partisan observation. The same office that one president uses to cut regulations can be used by the next president to impose them. The same expansive reading of executive power that one party applauds today will be used against it tomorrow. If you cheer when your president legislates by executive order, you are not expanding your side's power. You are expanding the office, and the next occupant may be someone you cannot stand.

There is a seen and an unseen here. The visible benefit is a quick policy victory today. The unseen cost is the precedent you have just handed to your worst opponent. That is how centralized power works.

History proves the point. In Youngstown Sheet and Tube Company v. Sawyer, the Supreme Court rejected President Truman's attempt to seize steel mills by executive order during the Korean War, because Congress had not authorized it. Justice Robert Jackson's concurrence laid out the framework that still governs. When a president acts with Congress, his power is at its maximum. When he acts against the expressed will of Congress, his power is at its lowest ebb. That was not a liberal or conservative opinion. It was a structural one. It was the Constitution protecting the people from the pretense that a president can make law by himself.

The same principle applied when Franklin Roosevelt used Executive Order 9066 to authorize military exclusion zones, which led to the internment of Japanese Americans during World War II. That order was popular in its moment. It was also a massive assault on liberty by the central government. You cannot defend an unlimited executive only when your side wins. You either believe in the separation of powers, or you do not.

What Constitutional Judgment Looks Like

A principled approach is not complicated.

First, judges should enforce the nondelegation doctrine. If Congress wants to change the law, it must pass a law with real standards, through both houses, and present it to the president. It cannot hand a blank check to an agency and then blame the agency when the policy is unpopular.

Second, presidents should issue executive orders only to carry out existing laws. If they want a new policy, they should send legislation to Congress. If Congress refuses, the answer is not a pen. The answer is persuasion, elections, and the ordinary constitutional process.

Third, citizens should stop judging executive orders by whether they like the outcome. The test is not whether an order produces a result you support. The test is whether the order is executing a law. If it is not, it should be struck down, no matter who signs it.

That last point is the hardest, because it asks us to be constitutional first and partisan second. But that is exactly what the Founders demanded. A constitutional republic cannot survive if every election gives the winner temporary power to legislate alone.

We are not supposed to be ruled by a president with a four-year term and a limitless pen. We are supposed to be governed by laws made through the process the Constitution actually created. The executive order is not the disease. It is the symptom. The disease is the separation of powers breaking down, with Congress surrendering its authority and the president happy to take it.

The cure is not to elect a better person to hold the pen. The cure is to take the pen away from the office whenever it tries to write law. The Constitution already gives us the rule. All legislative powers are vested in Congress, and the president must faithfully execute the laws. The rest is commentary, and most of it is an excuse.