Executive orders pose risks to liberty and governance

The 2024 presidential election campaign between Kamala Harris and Donald Trump is the most policy-free in living history. The candidates and their supporters are trying to focus more on vibes, accentuating or minimizing controversies, and culturally signaling supporters to bring out the vote. But whoever wins will have enormous power to change policy, especially by issuing executive orders and other presidential directives.

Paul Begala, President Bill Clinton’s former adviser, summed up the power of modern executive orders when he said, “Stroke of the pen. Law of the land. Kind of cool.” Excessive use of executive orders should chill supporters of the Constitution, limited government, individual liberty, free markets and peace. There is a proper role for executive orders, but it’s too broad for our constitutional government.

American law does not define executive orders, presidents’ most consequential means of unilaterally wielding power. In practice, they are written directives with the force of law that the president issues to set policies for the executive branch and to direct and manage how federal agencies, employees and department heads operate.

Executive orders are often innocuous. They can clarify laws, streamline cooperation between different federal agencies, and realize congressional objectives. President George Washington’s first executive order asked the heads of executive departments to describe their jobs and the current state of the union — a reasonable and constitutional order. Other times, executive orders can be formidable instruments of power. The most infamous such order in American history was President Roosevelt’s that forced the internment of Japanese Americans and lawful residents in camps during World War II.

The natural order in our republic has been for the scale and scope of presidential power to increase and for Congress’ power to decrease. Presidential power has burgeoned over the course of American history and especially since the New Deal with significant assistance from other national emergencies like two world wars, the Cold War and the War on Terrorism. Presidents frequently take these powers for themselves, but too often Congress gives presidents their powers that they then exercise through executive orders.

And the courts will not save us. They rarely limit presidential authority — a noteworthy exception being the Youngstown decision that stopped President Truman from nationalizing steel firms during the Korean War. Courts struck down only 14 executive orders through the end of the 20th century and few since, if any — in any event, a minuscule small share of the more than 14,000 issued since the government started counting.

A pessimistic projection is that the president will become increasingly powerful as Congress withers and the courts are the last remaining check on executive authority — courts staffed with judges appointed by presidents. This lamentable trend must reverse, and the presidency should be placed back into its properly proportioned box, but preparing for the growth of the imperial presidency is the most prudent action.

In that vein, I edited a “Cato Handbook on Executive Orders and Presidential Directives” to highlight several particularly damaging executive orders and other directives that conflict with the principles of individual liberty, free markets, limited government, peace and the Constitution. The purpose is to help a new administration identify which orders should be revoked or amended. Doing so would reduce the harm and increase the scope of liberty in policy areas like health care, immigration, foreign policy, trade, defense and others.

There are plenty of executive order suggestions in our handbook for the next administration to like, regardless of whether Harris or Trump is elected. For instance, Harris would like some of our recommendations on revoking immigration orders, and Trump would appreciate the guidance on revoking the energy or administrative state orders we identify. There will also be plenty of recommendations that both major party candidates will dislike. No matter the outcome of the 2024 election, the next administration could take some of Cato’s recommendations to reduce the harm.

The Cato handbook is not a comprehensive list of executive orders and directives that should be revoked. There are so many that such a list would be impossible to compile, but the handbook is merely the lowest hanging fruit and best places to begin the long journey back toward constitutionally limited government. That low-hanging fruit is ripe indeed.

Alex Nowrasteh is the vice president for economic and social policy studies at the Cato Institute.