In a meeting with governors at the White House on Friday, February 21, President Donald Trump sparred with Governor Janet Mills of Maine over the subject of transgender athletes playing in girls’ and women’s sports. The exchange was driven by a recent executive order that pledges to keep men out of women’s sports. During the exchange, Trump threatened to withhold federal funding to the state for their refusal to follow his order. When asked if the state would comply, Mills said, “I’m complying with state and federal laws.”

“We are the federal law,” the president responded.

This tense exchange marks a longstanding pattern in the increasing expansion of executive power. In the modern day, the power of policymaking has shifted to a greater extent into the hands of the president through the use of executive orders. Executive orders, while intended to be a tool for the president to manage the federal bureaucracy, enforce existing laws, and efficiently address unique emergency matters, have evolved into a means of shaping policy without the need for Congressional approval. This has allowed executive orders to be used more as political tools for passing controversial, partisan policies that would have otherwise struggled to gain congressional support. 

This expansion of executive power has become increasingly relevant in the modern day. Since Trump was inaugurated as President of the United States, he has signed over 70 executive orders, covering controversial topics ranging from the abolishment of Diversity, Equity, and Inclusion (DEI) programs in the Federal government to renaming the Gulf of Mexico the “Gulf of America.” 

Trump’s use of Executive Orders to bring massive change throughout the Federal government and the United States as a whole has raised concerns from critics who believe the President’s use of Executive Orders has been used to restrict the constitutional rights of the American people. Others argue that the President’s use of executive power is not unique and that the government overhaul is to be expected with the entrance of a new administration.

What is an Executive Order?

Before it can be decided whether the president’s use of power is justified or not, one must understand what an Executive order is. However, the answer to this question is not black and white. 

Interestingly, the US Constitution makes no direct mention of executive orders in the outline of the executive branch presented in Article II. However, as the president is given executive power, or the ability to enforce laws, the authority to issue executive orders is generally accepted as an inherent aspect of the president’s role. 

Executive orders were intended to aid the president in carrying out laws made by Congress or to supplement those laws for the goods of the country. History teacher Zachary Wood emphasized this intended use.

“An executive order comes from Article Two of the Constitution, and the simple idea behind it is the President issuing laws or orders that could be faithfully executed to benefit the American people,” he explained. “So not something that was meant and designed initially for a President’s agenda or President’s personal belief, but something that overall could help the people that perhaps Congress hadn’t done at the time.”

Unfortunately, the unclear definition of how executive orders should be used has led to an expansion of their use beyond helping enforce laws or serve the American people in ways that Congress had not. To begin with, the number of executive orders issued by each President has risen dramatically since our country’s founding. During his eight-year tenure, George Washington signed only eight executive orders for an average of one per year. Compared to the over 70 executive orders signed by Trump in under three months alone, it’s exceedingly clear that a shift in power has occurred. 

A Controversial History

However, it’s not just Trump who has used more executive orders. The increase in executive power is a pattern that can be traced back decades. In fact, the president to pass the most executive orders was Franklin D. Roosevelt. He passed 3,721 orders during his 12 years in office, leveraging his power to navigate the complexities of the Great Depression and World War II. Roosevelt’s extensive use of executive orders set a precedent for future presidents to adopt similar methods of action, further granting the authority to make decisions to the executive branch.

Considering this ongoing trend in the rise of executive power, it is clear that Trump’s use of executive orders is just one chapter in a larger story of rising executive power in the United States. Executive orders have become a powerful tool for finding fast solutions in times of need, like Roosevelt’s orders that created New Deal programs during the Great Depression. They can also allow for change to occur when policies are deemed too controversial, such as Abraham Lincoln’s use of executive orders to issue the Emancipation Proclamation, allowing him to free slaves in Confederate states during the Civil War.

Unfortunately, it is this same flexibility that allows executive orders to be helpful in times of crisis that has allowed for executive power to be abused. Throughout the history of the US, there have been countless examples of many presidents, not just Trump, using executive orders in ways that restricted the rights of American citizens. 

For example, Roosevelt was responsible for passing Executive Order 9066, which resulted in the internment of Japanese Americans during World War II. In response to rising paranoia that Japanese Americans were responsible for helping orchestrate the attack on Pearl Harbor in December of 1941, the order forced hundreds of thousands of innocent Japanese Americans to vacate their homes and be placed in internment camps for the remainder of the war.

Current examples of questionable uses of executive orders can be found in several of the policies passed by Trump since his January inauguration. To begin with, many of Trump’s orders focused on rescinding those passed by the Biden administration. Upon his inauguration in 2021, former President Joe Biden issued many executive orders to reverse those created during Trump’s first term like the withdrawal of the United States from the Paris Agreement, an action then undone by Trump at the start of his current term.

Trump has also issued an executive order titled “Protecting the Meaning and Value of American Citizenship.” As part of the president’s goal of cracking down on immigration laws, this order banned birthright citizenship, preventing those born on US soil from automatically becoming citizens when their parents have not already obtained citizenship status. The order has already received massive resistance, with many claiming that the order violates the Equal Protection Clause of the Fourteenth Amendment.

Why is the Expansion of Power a Problem?

As seen in these examples, the rise in executive power has been used in both positive and negative ways. However, the overall trend in executive orders being used increasingly to pass partisan policies and bypass Congressional approval should be concerning. Not only that, but existing judicial checks on executive orders may lose their power as judges in the Supreme Court and other levels of the judicial branch are discouraged from challenging executive orders due to party loyalty.

“So the President passes an executive order, and because there are more members of a certain party, they don’t challenge that because of party loyalty,” Wood explained. “And that’s where we’ve drifted to an extent in our modern era. Instead of doing things for the people, the government is now doing anything executive orders allow based on how it benefits the party or party loyalty.”

What Can Be Done?

As executive power continues to expand, questions about the appropriate limits of the president and executive branch have become increasingly urgent. While there is no easy solution, several actions can be taken to help restore balance to our government. First, the judicial system must remain vigilant in holding the executive branch accountable regardless of party affiliation. Through the system of checks and balances, the judicial branch has the power to halt the implementation of executive orders deemed unconstitutional. Trump’s order on birthright citizenship, for example, has already been blocked by multiple federal judges on the grounds of violation of the Fourteenth Amendment, preventing the order from being carried out.

Additionally, political participation can play a powerful role in holding the government accountable. Regardless of where you fall on the political spectrum, engaging in the democratic process and speaking out when officials fail to use power appropriately is vital. In matters of government function and the passing of partisan policies, it is important to remember that the ends do not always justify the means. Regardless of whether or not you agree with the partisan ideological basis of executive orders, you can still question the power used to pass them.

While many are quick to condemn executive actions of administrations they oppose, the broader issue is the unchecked executive authority these orders represent.  The president is intended to be a democratically elected leader to serve the interests of the people they serve, not an unchecked executive powerhouse that misrepresents the will of the people.

Ultimately, executive orders are not inherently harmful, but their misuse and the expansion of power they represent can undoubtedly be a threat. If the trend of unchecked, unopposed executive power continues through current and future administrations, it could reshape the balance of power in our government in ways that we may not be able to reverse. The functioning of our government, and the preservation of our democracy, depend on our refusal to sit idly by. It is our duty to stay actively engaged in and informed of the shaping of policies that affect our country, and all of our lives.