It should be obvious to anyone paying attention that both the scope and the power of the executive branch of our American government have been expanding for many years. That includes not only the presidency but also the various cabinet departments and the many executive agencies.
My friend and fellow columnist Dr. Jonathan Stolz recently sent me a study that cited the number of executive orders issued by American presidents all the way back to our beginning. It came as no surprise that the number of such actions was very limited in our nation’s early years. George Washington, who served two terms, issued a total of eight, an average of one per year. Succeeding presidents increased that number slowly but steadily until it exploded under Ulysses S. Grant at 217. Things slowed down a bit until Theodore Roosevelt issued over 1,000; Woodrow Wilson over 1,800; and Franklin D. Roosevelt an astonishing 3,721. Those highs have never been reached again, but Donald Trump issued 220 and Joe Biden has issued 138 as of the study date of June 1.
In Federalist No. 10, James Madison warned of the dangers of faction, and we are seeing the prescience of his concern every day.
But in Federalist No. 47, he warned of another danger, and that was the expansion of one branch of government into a position of dominance over the other two. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” he said.
For Madison, that was not an original thought. He went on to cite Montesquieu (1689-1755), one of the great and influential thinkers of the Enlightenment, and quoted him as having said, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates” or “if the power of judging be not separated from the legislative and executive powers.”
None of that meant that any of the three branches of government should be entirely unrestrained by the other two. Indeed, that is the very purpose of the checks and balances. The concern is that one branch may seek to expand its powers at the expense of the others, or as we have seen over many years, our legislative branch abdicating its constitutional authority and allowing either the executive branch or the courts to effectively make law either by executive actions or by legislating from the bench. That behavior is a great way to avoid responsibility but no way to run the Congress.
A remark credited to Winston Churchill is: “Never let a crisis go to waste.” Following that dictum, some of our presidents have used “emergencies,” some real and some imaginary, to justify unilateral executive actions. The “climate emergency” (Biden) and the “emergency at the border” (Trump) are recent examples. The National Emergencies Act of 1976 gives an American president broad discretion to declare emergencies, and along with that comes sweeping powers, supposedly temporary. Clearly, that opens the door to potential abuse and actions taken more for political purposes than to address valid emergency situations.
That does not mean that all emergency declarations are unjustified or purely political. When COVID-19 struck the United States a few years ago, and as the number of reported deaths exploded, the American people were justly terrified and looked to their government for answers. In hindsight, we have learned that some of the actions taken were over the top, but we did not know that at the time. While some people saw it as an abusive attempt to expand governmental power, the mass of Americans probably saw it as a well-meaning attempt to get control of a very frightening situation.
Some presidential executive orders do give the appearance of being largely political, and two recent examples are (1) President Biden’s 2022 attempt to forgive college debts in part as a response to the “COVID emergency”. But it was initiated (some would say cynically) only months before Election 2022 and before it could get to the Supreme Court (which eventually struck it down). Now, in defiance of the court, he has (2) announced another student loan forgiveness initiative, and again just months prior to Election 2024 — once again leaving time to impact the vote but little time for this action to reach the court, which does not reconvene until October.
Most of us seem to be accepting of those executive actions we like and upset with those of which we disapprove. We should probably step back from our personal preferences and apply a more thorough and even-handed standard to all expansions of governmental power. As President Ronald Reagan said, a great many of them come at the expense of liberty.
Joseph Filko has taught economics and American government, and lives in Williamsburg. He can be reached at jfilko1944@gmail.com.
