The first recorded executive order in U.S. history was issued by George Washington on June 8, 1789.
Washington’s First Executive Order (1789)
- Purpose: Directed executive departments (such as the Treasury and War Departments) to provide him with detailed reports about their operations.
- Why It Matters: This was a procedural order, not a policy change—it simply helped Washington gather information to run the government efficiently.
The difference between a procedural order and a policy change comes down to their impact, authority, and purpose within government action.
Procedural Order
A procedural order is an internal directive that outlines how government operations should be carried out. It does not create new laws or change existing policies but instead helps manage or organize the functioning of government.
Examples of Procedural Orders:
- George Washington (1789): Ordered executive departments to submit reports on their operations.
- Routine Executive Orders: Assigning roles, reorganizing agencies, or establishing internal guidelines.
Key Features of Procedural Orders:
Administrative in nature (how something should be done, not what should be done).
Limited in scope (applies only within government functions).
Does not bypass Congress or create new laws.
Policy Change
A policy change is an executive action that directly affects laws, regulations, or public policies—often having the same effect as legislation. These actions can alter how citizens, businesses, or institutions operate.
Examples of Policy Changes via Executive Orders:
- Emancipation Proclamation (1863) – Abraham Lincoln: Declared freedom for enslaved people in Confederate states.
- EO 9066 (1942) – Franklin D. Roosevelt: Ordered the internment of Japanese Americans during WWII.
- EO 9981 (1948) – Harry Truman: Desegregated the U.S. military.
Key Features of Policy Changes:
Affects citizens, businesses, or laws.
Bypasses Congress and has legislative power.
Often challenged in courts if seen as executive overreach.
Summary of the Key Difference
| Aspect | Procedural Order | Policy Change |
|---|---|---|
| Purpose | Directs government processes | Changes or creates policy |
| Scope | Internal government operations | Affects citizens, businesses, or institutions |
| Effect | Organizes administration | Has the force of law |
| Example | Asking for reports from departments | Declaring military desegregation |
Why It Matters
- Procedural orders keep the government running efficiently.
- Policy changes via executive orders raise constitutional concerns because they can bypass the legislative process, giving the president lawmaking power that belongs to Congress.
First Controversial Executive Order
- Issued by: President Andrew Jackson (1830s)
- Action: Used executive power to forcibly relocate Native American tribes under the Indian Removal Act, leading to the Trail of Tears.
- Why It’s Important: This was one of the first executive actions that had major constitutional and human rights implications.
The Evolution of Executive Orders
- Early presidents used them mostly for administrative directives.
- By the late 1800s, presidents like Abraham Lincoln (Emancipation Proclamation, 1863) and Theodore Roosevelt began using them to set major policies.
- Franklin D. Roosevelt holds the record for the most executive orders (3,721), including internment camps (EO 9066) during WWII.
Executive orders started as administrative tools but have evolved into a way for presidents to bypass Congress and enact policy unilaterally. This shift raises constitutional concerns about executive overreach.
A key argument in Charles Kesler’s Crisis of the Two Constitutions. He contrasts the Founders’ Constitution, which is rooted in natural rights, limited government, and strict constitutional interpretation, with the Progressive or “Living” Constitution, which allows for evolving government power and executive overreach.
Executive Orders: From Procedural to Policy Change
Founders’ Constitution (Procedural Orders)
- The original intent of executive orders was primarily administrative—to direct executive agencies and ensure laws were faithfully executed.
- This follows Article II, Section 3 of the Constitution: “[The President] shall take Care that the Laws be faithfully executed.”
- Early executive orders, like those from Washington and Jefferson, focused on internal executive branch procedures, not creating new policy.
Living Constitution (Policy Change)
- With the rise of Progressivism in the early 20th century, executive orders shifted from procedural to policy-making tools.
- Presidents began issuing executive orders that functionally bypassed Congress to implement major policy changes, often expanding government power.
- Examples include FDR’s New Deal orders, Truman’s desegregation of the military, and Biden’s COVID-19 mandates.
Kesler’s Argument in Crisis of the Two Constitutions
- The Founders’ Constitution aimed to limit government power by requiring laws to go through Congress.
- The Living Constitution, embraced by modern liberalism, sees the Constitution as flexible, allowing executive action to replace legislative action when politically convenient.
- This shift has weakened constitutional checks and balances, leading to executive overreach and the erosion of individual rights.
Constitution vs Unconstitutional
- Executive orders that follow the Founders’ model are procedural and constitutional.
- Executive orders that bypass Congress to make policy align with the Living Constitution and expand government beyond its constitutional limits.
- This debate reflects a larger struggle between limited government (constitutionalism) vs. expanding government power (progressivism).
A Detailed Analysis
Executive orders (EOs) are directives issued by the President to manage operations within the federal government. While not inherently unconstitutional, they can become so when they exceed presidential authority and violate the separation of powers or infringe upon individual rights.
The Constitutional Basis for Executive Orders
The U.S. Constitution does not explicitly mention executive orders, but they are generally derived from:
- Article II, Section 1: “The executive Power shall be vested in a President of the United States of America.”
- Article II, Section 3: The President “shall take Care that the Laws be faithfully executed.”
EOs are supposed to clarify or implement existing laws, not create new ones. However, over time, presidents have used them to bypass Congress, raising constitutional concerns.
How Executive Orders Can Be Unconstitutional
An executive order becomes unconstitutional when it:
Creates New Laws (Violates Separation of Powers)
- The Constitution grants lawmaking powers to Congress (Article I, Section 1).
- If a president uses an EO to make or change laws, he is legislating—something only Congress can do.
- Example: DACA (Deferred Action for Childhood Arrivals, 2012)—President Obama’s order gave legal protection to undocumented immigrants without congressional approval, effectively creating immigration policy.
Bypasses Congress and Checks & Balances
- EOs should be based on laws passed by Congress, not independent presidential will.
- If a president issues an order that Congress never approved, it overrides the legislative process.
- Example: Biden’s 2021 eviction moratorium—The Supreme Court ruled it unconstitutional because it was a policy decision that belonged to Congress.
Violates the Bill of Rights
- If an EO restricts free speech, gun rights, due process, or other constitutional protections, it is unconstitutional.
- Example: Japanese Internment Camps (EO 9066, 1942)—FDR’s order forced Japanese-Americans into camps during WWII, violating due process and equal protection rights.
Uses Emergency Powers to Expand Authority Indefinitely
- Presidents often invoke emergency powers to justify sweeping executive action.
- If left unchecked, these orders allow presidents to act like dictators.
- Example: Trump’s 2019 border wall funding—He declared a national emergency to redirect military funds for the wall, bypassing Congress’s power of the purse.
Why Executive Orders Are Dangerous
Concentration of Power in One Branch
- The Founders feared executive overreach because unchecked power leads to tyranny.
- If a president can rule by decree, the legislative branch becomes irrelevant.
They Can Be Used to Circumvent the Will of the People
- Congress represents the people and their elected representatives.
- A president who governs by EO is bypassing democracy and making laws without consent.
They Set Dangerous Precedents
- Once one president expands EO power, the next one can push it further.
- What stops a future president from using EOs to shut down political opposition or suspend elections?
What the Founders Would Say About Executive Orders
The Founders designed a system to prevent king-like rule:
- James Madison (Federalist 47): “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”
- Thomas Jefferson: “A departure from principle in one instance becomes a precedent for another… till the bulk of society is reduced to be mere automatons of misery.”
Had the Founders intended for presidents to govern unilaterally, they would have included it in the Constitution. Instead, they built checks and balances to prevent this.
How to Rein in Executive Orders
To stop unconstitutional executive orders:
Congress can pass laws overriding an EO (but needs a two-thirds majority to override a veto).
Courts can strike down unconstitutional orders (but this takes time).
States can refuse to comply (Nullification) with unlawful federal directives.
The public must demand accountability—voters can reject presidents who abuse EOs.
Conclusion: Executive Orders Must Be Limited To Procedural Not Policy
Executive orders are not inherently unconstitutional, but they can easily become so when a president legislates by decree, bypasses Congress, or violates individual rights. The Founders feared unchecked power, and history has shown that when executive orders go too far, they lead to tyranny.
