What is an executive order?
Also, what power does Congress have anyways?
Trump has signed an unprecedented number of executive orders. He has made a show of it, where he will sign executive orders in the Oval Office while he takes questions from the press. But what are executive orders really and what do they do? What is Congress and what should it do? I want to answer these questions and lay out how Trump is attempting to flip the Constitution on its head and how Congress is letting him.
First, executive orders are not decrees. In other words, they are not laws. Executive orders are simply directives from the president to the executive branch. They have no power outside of the executive branch. When Trump signed the executive order “banning” paper straws, that does not mean it’s now illegal for a restaurant to use paper straws. It was a directive to executive agencies to not purchase paper straws. There is a big difference between those two things.
The confusion about executive orders seems to come from two places. First, I’m pretty sure most people do not understand what executive orders are. This is the result of our poor civic education and the way the media reports on executive orders. Check out the headline above from a CNN story. Trump is not “getting rid” of paper straws. He does not have the authority to do so for the entire United States. The first paragraph of the story explains what is actually happening, but who reads stories. We are mostly headline readers and acting as if the president can completely eliminate paper straws is more attention grabbing. The result is people assume the president has such authority. I think Trump also probably assumes he has such authority.
The official White House press release of the executive order is more accurate than the CNN story. This leads to the second cause of confusion, the government is very large and affects many parts of society, so it often seems like executive orders have the same effect as laws. If you read the CNN story you will learn that the U.S. government is the nation’s largest purchaser of straws. If the government ends its procurement of paper straws, that will have a dramatic effect on the market for production of paper straws. More straw making companies will switch back to plastic and there will be fewer paper straws in the real world.
Plastic or paper straws may not be too important in the grand scheme of things, environmental issues aside. However, the same principle applies to more weighty issues. Let’s consider a more controversial matter. Earlier this month Trump issued an executive order to make English the “official” language of the United States. Except, he didn’t really. He doesn’t have that power and if you read the executive order, it says that he doesn’t have that power. What the order does is revoke an earlier executive order, 13166, that directed government agencies to take steps to improve access to services for persons with English language issues. Trump’s executive order itself says “Agency heads are not required to amend, remove, or otherwise stop production of documents, products, or other services prepared or offered in languages other than English.”
Trump and his supporters have an incentive to believe he made English the official language, Trump critics do as well, and the media does. This is how our political discussion and analysis works. We pretend the president is a king because it makes politics more interesting, and it is easier to get people upset about it. I taught my first American Government course as a TA over 20 years ago and I can tell you that it has had a corrosive effect on our politics and the knowledge of our citizens.
People act “as if” the president has the power to make law, which is essentially the same as the power to make law. Timothy Snyder’s book, On Tyranny, has experienced a resurgence of interest. In it he offers lessons to combat tyranny. Perhaps you have seen the first one floating around social media, “do not obey in advance”. That is what is happening. Trump has an executive order signing party, announces things like he’s banning paper straws and making English the official language, the media covers it as if he has the power to do so and citizens understandably act “as if” he does. So, they obey the order even if they don’t have to. A dangerous series of events.
More disturbing is that members of Congress act “as if” the president has these powers as well. The events that upset me enough to write this blog post happened several weeks ago when Republican members of Congress were holding townhall meetings and being met by angry constituents. The constituents were mostly angry about the actions of DOGE, which was created via an executive order on Trump’s first day in office. Again, the president does not have the authority to create an official government department, only Congress has that authority, but you would not know that if you just read the news. But I digress.
The constituents were angry because DOGE was cutting services and ending contracts, resulting in real harm in their communities. The response from the members of Congress was a mix of we just have to let this play out and what can I do about it anyways. The shrug emoji come to life. My response is to wonder if these members of Congress have ever read the Constitution.
If they had read the Constitution, they would know that Article I (which is first) deals with Congress. Article I is also the largest of the Articles of the Constitution. Article II (the second) deals with the president and is very short. A large part of the powers given to Congress in Article I revolve around spending the money of the government and providing oversight (checks and balances) on the executive. If the president of the U.S. is ordering executive agencies to stop spending money legally allocated by Congressional law, that is called impoundment and is unconstitutional. If Congress were concerned about their power, they might want to look into that.
If they had read the Constitution, they might also learn that they can remove the president, but the president cannot remove them. Let’s think about this from an organizational perspective. If one part of an organization has control of the money, has the power of oversight over the other, and the power to remove the other, then wouldn’t it be natural to assume it is the more powerful part of the organization?
This is the setup of the Constitution. Congress is supposed to be the main actor in the American system of government. We do not have three “co-equal” branches. We have a preeminent branch—Congress—that has the power of the purse and the power to remove officials from the other two branches. That does not sound like “co-equal” to me. Most members of Congress do not act as if they have any authority to stop what Trump is doing, let alone that their branch should be the most powerful one in the government.
This is a fundamental problem in the way we conduct politics in the U.S., which is the result of poor civics and a media that treats the president as king. Congress has faded in our political imaginations. It is just a place where people give speeches for use on social media later and every once in a while, we watch an impending government shutdown.
My undergraduate political science professor used to say the U.S. Constitution was set up to be “anti-tyrannical, not efficient”. Rule by executive order is efficient. The king speaks and the people follow. Rule by Congress is anti-tyrannical. The founders understood this, which is why they gave Congress most of the power. In fact, in the Federalist Papers James Madison explains that to prevent Congress from becoming too powerful it should be divided into two (House and Senate) and have different constituencies (House district and state).
I joke with my students that my historical crush is James Madison. I find his political thought in the Federalist Papers insightful and exciting. We should all read Federalist 10 and 51 every year. However, he was wrong about a few things. He believed that members of Congress would jealously guard their Constitutional powers. That this, along with all the powers given to Congress under the Constitution, would prevent abuse of power by the executive. Members of Congress acting helpless in the face of a president abusing his power is not something that Madison would have expected. If only more members of Congress had actually read the Constitution.