Commentary: Three myths about a president’s executive orders

By Cass R. Sunstein / Bloomberg Opinion

There’s nothing nefarious about executive orders

Here are three popular myths about executive orders:

• They are a way to bypass Congress.

• They are an insult to the Constitution.

• They are new and a product of the imperial presidency.

Even among serious and experienced observers, there is widespread belief in these falsehoods. That’s a big problem because President-elect Joe Biden is about to issue a bunch of executive orders. Citizens need to understand what they are and what they do.

Executive orders often take the form of directives from the president to his subordinates. For example, Biden might tell the secretary of homeland security to adopt new immigration policies. Or he might direct his secretary of education to reverse President Trump’s civil rights policies.

Executive orders do not bypass Congress. Typically, they rely on statutes that Congress has already enacted.

If Biden directs the Environmental Protection Agency to issue new regulations to reduce greenhouse-gas emissions, he will be relying on the Clean Air Act, which is already the law. In domains including education, occupational safety, covid-19, clean water and civil rights, Congress has given plenty of power to executive agencies. Executive orders from the Biden administration would rely on the power that agencies already have.

For that reason, they are hardly an insult to the Constitution. So long as what they order is within the bounds set by congressional enactments, they are a perfectly legitimate exercise of executive power; which is, after all, the power to execute the law.

Nor are executive orders new. They go all the way back to George Washington. Abraham Lincoln issued them, too.

In the 20th century, here are a few numbers: Herbert Hoover issued 995; Franklin Roosevelt issued a whopping 3,728; Harry Truman issued 896; Dwight Eisenhower issued 496; Lyndon Johnson issued 324; Richard Nixon issued 346; Ronald Reagan issued 381; Barack Obama issued 296. To date, Trump has issued 205.

If a president-elect, like Biden, is expected to issue a host of new executive orders, the proper response is not outrage. It is something closer to a yawn.

In the first month of a new administration, any president will mark out new directions by telling his staff what to do. And if the new president is from a different political party from that of his predecessor, new directions are inevitable. On covid-19, climate change, immigration, health care and more, no one should be surprised, or cry “abuse of power,” if Biden calls for fresh starts.

None of this is meant to deny that an executive order might raise legitimate concerns. Such an order cannot mandate action that Congress has not authorized, and some presidents have acted unlawfully or pushed legal boundaries. For example, Trump’s original “Muslim ban,” issued in January, 2017, was a bit of a mess, and it ran into serious legal trouble. Particular actions by the Biden administration will be carefully scrutinized by federal courts, including by numerous judges appointed by Trump. The new administration has to stay within legal bounds.

In early 2021, the Biden administration will also have to make hard decisions about how and when to approach Congress. Even if an executive order reasonably relies on power that Congress conferred in, say, 1990, members of Congress might strenuously object, in 2021, that their powers have been usurped.

Strictly as a matter of law, the objection might be baseless. But to the extent that members have strong views on (for example) student-loan forgiveness and immigration, they might feel ignored or dismissed if the president decides to act on his own, and if he does not give them a chance to enact new legislation.

For that reason, Biden and his team will have to make a series of political judgments: Even when they have the legal authority to act, ought they delay, on the ground that it’s better to work with Congress, and in order to avoid some kind of breakdown in relations?

It is hard to answer that question in the abstract. Instead of trying, let’s get clear about executive orders. They usually call for action that Congress has already authorized. They have a long history.

As directives from a new president to those who work for him, they are hardly an insult to the Constitution. On the contrary, they an essential part of the U.S. constitutional order.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”