There is nothing inherently despotic about executive orders: they were planned for in the Constitution. Trump’s executive orders nevertheless reveal a state of hyper-partisanship that presents a serious threat to our democracy and needs to be urgently addressed. The Founding Fathers conceived of Congress, and of the Senate, as a deliberative body from the start, and the deliberation takes time. There are important reasons as to why this is generally a good thing, yet this system is clearly not well suited for all occasions. Consequently, the President retains the ability to circumvent the deliberative bodies in certain key instances. Emergency declarations and executive orders are the two central mechanisms underlying this ability.
Executive orders can nevertheless be symptomatic of a lack of party cooperation in Congress. While in total numbers Trump has had fewer executive orders in his first term than Obama, Bush and Clinton in their respective first terms, the nature of Trump’s executive orders is revealing. Yet his executive order regarding coronavirus relief, which among other things extended unemployment benefits and federal protections against evictions, is deeply disconcerting. Trump bypassed the Senate and the House where several relief bills had been introduced. While it is true that Congress had been unable to reach a compromise, and relief was running out and badly needed, by taking under his authority this kind of substantive policy-making Trump is giving a signal to Congress that presidential action can become an alternative to Congressional compromise. This dangerous precedent is the result of our current state of Congressional hyper-partisanship, under which American democracy cannot persist in the long-run. While executive orders ought to be used in times of crisis, inability by the Senate and the House to reach agreements should not qualify as one such crisis, and the substantive functions of policy-making which belong to Congress will become obsolete if Trump’s trend of executive order continues.
That being said, executive orders do not necessarily worsen hyper partisanship. They provide a short-term solution to the frequent and serious policy-making gaps that arise in a country as divided as America. Still, we must ensure the balance of power between the presidency and Congress remains that of our founders’ original, intended vision. The solution is therefore not to legislate or litigate away executive power, but to avert hyper-partisanship from within the House and Senate. While this may sound like a weighty task, the reality is that there are relatively simple administrative measures Congress could adopt without even needing to pass any laws or amendments.
Committee chairmen carry a great deal of political power in Congress. The chairman for committees are picked based on approval from the party leader and by seniority. This system puts moderates at a disadvantage. As Anne Kim, the director for policy and strategy at the Progressive Policy Institute argues, the system rewards “longevity” and therefore members from “safe” districts are more likely to become chairmen “while moderates from swing districts (by definition volatile) are effectively shut out.” For example, members of the moderate Blue Dog Coalition “have been in the House for an average of five terms. In contrast, the chairmen and ranking members of the House’s most powerful committees…have been in Congress an average of 14 terms.” Adopting an improved method of selecting chairmen and ranking members to committees (such as by secret ballot within the caucus) could lead to more moderates sitting in crucial committees, potentially increasing Congress’ ability to compromise and operate in a bipartisan fashion.
There are other key changes that would also help with Congress’ inability to find compromise, but these may consume significantly more political capital. In January, Republican Senators had four more seats than Democrats, but represented 15 million Americans fewer. This trend will only become more pronounced over the next twenty years, and by 2040 “two-thirds of Americans will be represented by 30 percent of the Senate.” Many proposals have been floated on ways to make the Senate more representative of the will of the people, including one by Wharton Professor Eric Orts that suggests providing one seat per state and then “ apportion[ing] the rest based on population.” While any such changes to the Senate would be subject to vigorous opposition and litigation, a more representative Congress would increase Republicans’ incentive to compromise, as their ability to curb House initiatives by holding on to the Senate would be reduced.
Executive orders are not in themselves despotic, and improvements in the rules of Congress could go a long way in reducing their importance. However, that does not mean that concerns about Trump’s use of executive orders are entirely unjustified, particularly given the impact of hyper-partisanship in our justice system. The legality of executive orders can only be contested in a court, meaning that if Trump does pass an illegal executive order, the road to removing it is one filled with potentially endless appeals and an ultimate appearance before the Supreme Court. This is a problem, given 50 percent of Americans do not think that Supreme Court justices set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case. The obvious solution, of course, is to ensure that the president does not pass unconstitutional executive orders to begin with. The person with the power to guarantee this is Attorney General Bill Barr. Yet, Barr has not only failed to stop Trump’s excess, but encouraged them, notably by pushing repeated investigations into the FBI-Russia probe even after IG Horowitz concluded there was no political bias in the investigation. Barr is not a Trump puppet, but rather believes that the President “alone is the Executive branch” and therefore “the full measure of law enforcement authority is placed in the President’s hands, and no limit is placed on the kinds of cases subject to his control and supervision.” Barr envisions a presidency that is significantly more powerful than our founding fathers envisioned, and more powerful than it has ever been. As Former U.S. Deputy Attorney General Donald Ayer noted in the Atlantic, Barr’s views of an “imperial presidency” were so shocking that former coworkers have described him as “a fierce advocate of unchecked presidential power” upon American institutions.
It is not that new laws are needed to restrict the president’s ability to pass executive orders- laws to that effect already exist. The issue is that America lacks a safety net when an Attorney General like Barr fails to act as a check on the president’s authority. What is needed, perhaps, is to create a more independent office of the Attorney General. Similar to decreasing hyper-polarization, while this may sound like a hefty task, there is in fact a solution that does not demand congressional action. The Center for American Progress recently outlined a series of measures that could be taken within the Department of Justice. These include codifying “stronger limits on contacts and communications with the White House,” and adopting “a written policy regarding the DOJ’s obligation to defend the federal government in litigation,” as Barr has often sided with the President in attacking federal government institutions. Moreover, Barr has hindered “productive congressional oversight,” as President Trump has often instructed DOJ officials not to comply with Congressional subpoenas. A stronger, more independent DOJ will be better equipped to ensure that Presidential executive orders are constitutional and inspire renewed popular trust in executive orders as a useful mechanism of American democracy.
Whilst serving a purpose in certain circumstances, increasing deployment of executive orders can be symptomatic of larger problems in our democracy: lack of cross-party compromise and cooperation, and significant distrust towards the Presidency. While part of that distrust may stem from a growing partisan cleavage, fears that Trump may overstep his constitutional duties in executive orders are not completely unfounded, given AG Barr’s previous failures to prevent presidential abuses of power. At the core of these problems is the phenomenon of hyper-partisanship present not just in Congress but also across our judicial system
We must ensure Congress’ ability to fulfill its policy-making duties, by removing seniority components from committee selection and ensuring Attorney General independence by strengthening and codifying DOJ norms. If we do not take action to address the Congressional hyper partisanship that precludes compromise and therefore encourages executive orders, and the shortcomings of existing DOJ norms that ought to ensure all Americans can trust their attorney general to ensure the legality of executive orders, we may find ourselves with an increasingly powerful, and unaccountable, executive.