Any time we grumble at gridlock, I can imagine the surprise of the Founding Fathers.
“A government that does nothing at all? Sounds like heaven, sir!”
OK, that might be a bit too strongly worded. After all, the Constitution was created because the old Articles of Confederation had proved impotent. Several founders (though by no means all) had realized the federal government needed more authority to act if the system was going to function at all.
Still, they were suspicious of a government that did too much. They could remember Townshend Acts, Tea Acts, and all the rest. So the Constitution was drawn with a bias toward inaction. A Congress that wanted to do something could be checked by the President and the courts. A Congress that wanted to do nothing… couldn’t really be forced to do otherwise.
Given that, I wonder what they would have made of the popularity of executive orders.
First, a little mythbusting. There’s nothing new or unconstitutional about executive orders themselves. The practice goes back to George Washington and began accelerating after the Civil War, reaching its peak in the first half of the 20th century. FDR was the most ardent practitioner (of course), but presidents Hoover, Taft, Truman, and Teddy Roosevelt were hardly shy of independent presidential action themselves. If anything, modern presidents are more restrained about using that power than those from Roosevelt to Roosevelt.
But it’s still an uncomfortable power to me.
In a government designed to default to “no,” this is the power of “yes.” In itself, that might not sound like a bad thing. We all know the image – and the reality – of a Congress locked in inertia, seemingly unable to agree on the time of day, much less anything of substance. So when a major debate goes nowhere, such as the debate on national gun control, it can be dangerously appealing to do an end run around the whole logjam.
The trouble is, the use of executive power rarely stops with the things you love.
Many people know that I’m a Tolkien fan. (I promise, this is relevant.) Between the novels and the recent immensely popular films, there are few people who aren’t familiar with the plot of “The Lord of the Rings” and its quest to destroy a magic ring to save the world.
What’s less familiar to the casual fan, though, is the nature of the Ring. It did more than just cause a wielder to turn invisible. In the hands of someone with enough power, it would grant a power of command – the ability to reorder the world exactly the way you wanted it, overriding the wills of others to do so.
That was the power that made the Ring so tempting, even to the righteous. Heroes fell, desiring it, even those wise enough to know better. The wisest – Gandalf, Elrond, Galadriel – simply shunned it.
“With that power, I should have power too great and terrible,” the wizard Gandalf says. “And over me, the Ring would gain a power still greater and more deadly. … Yet the way of the Ring to my heart is by pity, pity for weakness and the desire of strength to do good. Do not tempt me!”
It’s true that executive orders can and have done good in the past. But they are not guaranteed to do good. What they are guaranteed is to do.
Independent executive action did indeed issue the Emancipation Proclamation. But it also issued the order creating internment camps for Japanese-Americans. Granting freedom, seizing freedom.
The strength and weakness of an executive order is that what one president can do, another can undo. But is that enough of a check? How much can be done in the meantime? How long might something sit before it is undone, by another president, or a dilatory Congress, or the courts?
Democratic friends: Is this a power you would want in the hands of Donald Trump?
Republican friends: Is this a power you would want in the hands of Hillary Clinton?
All friends: Is this a power you want in the hands of absolutely anybody at absolutely any time? Because right now, that’s how it’s potentially entrusted.
I’m not sure how we wind back the clock. I am sure we need to. However desirable the ends may be – and I’ve liked some of the ends a great deal – the means are far too dangerous. The boundaries are too fuzzy, the power too easy.
With this Ring, what have we wed ourselves to?