Article II of the US Constitution begins with the seemingly simple sentence that, "The executive power shall be vested in a President of the United States of America". That, in a nutshell, is the constitutional basis for the flurry of executive orders issued by Donald Trump in his first weeks in the White House.
The executive order is nothing more than a directive, exercised under the "executive power" clause, from the president to executive branch officials about how they should carry out their administrative functions.
But, as the functions and responsibilities of the executive branch have increased, so the boundaries of the executive order have been stretched ever further.
Most executive orders are still non-controversial, generate little publicity and even less interest. Barack Obama's executive order 13513, for example, ordered federal government employees not to engage in text-messaging when driving vehicles on government business and most Americans would never have heard of it.
At the other extreme, governing by executive order has now become a device for presidents to initiate public policy when they deem that the legislative process is too slow to satisfy their aims or when the legislature is consciously obstructing and blocking the president's policy initiatives, as was the case during the later years of the Obama administration.
Today, as President Trump has so clearly demonstrated, the executive order is much more than an administrative/managerial directive. It has become a potent tool for the exercise of presidential power. But it ought not to be.
Policy-making by executive order can sometimes work effectively, but more often than not controversial orders that have tried to pre-empt the legislative process have landed presidents in trouble.
When President Truman issued executive order 10340 in 1952 directing his secretary of commerce to take control of the nation's steel mills to head off a major industrial dispute, he claimed he was acting in the national interest – continued steel production was deemed to be vital for the US involvement in the Korean War – but the Supreme Court didn't agree with him and declared Truman's action unconstitutional. Nothing about this exercise of presidential authority did any good. Truman came out of it a loser, the power of the presidency was weakened, and the Supreme Court didn't cover itself in glory by dividing six to three and producing six different majority opinions.
President Roosevelt's infamous 1942 executive order leading to the internment of Japanese Americans will forever remain a stain on American history and, on this occasion, the Supreme Court upheld FDR's assault on civil liberties, not once but twice. The executive order did untold damage to American liberty and the Supreme Court decisions remain a deplorable exercise of constitutional justice.
Roosevelt and Truman acted hastily in these two exercises of executive power. Both would have been better off had they not done so. Trump has also acted hastily in issuing his executive order last Friday on immigration control. That has been extremely divisive, confrontational and of dubious constitutionality. The courts are already dealing with the language of the executive order and, so far, ruling against Trump. The Acting Attorney-General instructed Justice Department lawyers not to defend the executive order in the courts because she wasn't convinced the order is lawful. Trump promptly fired her. Trump's executive order has, as The Washington Post put it, "exposed painful rifts within the Republican Party", and there appears to be turmoil and division among the senior members of Trump's White House staff.
In addition to the political controversy generated by the seven executive orders and 12 presidential memorandums (effectively the same thing as an executive order) that Trump signed in his first 10 days in office, there is a major issue over governmental process. Almost every initiative contained in these orders could be achieved through the normal legislative process, especially when the President's party controls both houses of Congress and when the leadership of the Republican Party in Congress shows no desire to challenge Trump.
The legislative process affords consideration, consultation, deliberation and moderation in the development of controversial public policy, and none of those were applicable to the executive orders issued by Trump. In contrast, the White House seems to have opted for a quick-and-dirty approach that has resulted in confusion, uncertainty and conflict. The absence of consultation by the new and inexperienced Trump team in the White House and the process they chose to follow has resulted in bad public policy with damaging consequences for the operation of a complex system of government in Washington.
When Obama decided to govern by executive order during his last two years, the Republicans in Congress went ballistic. They threatened lawsuits and impeachment proceedings against him. They accused Obama of an unconstitutional abuse of executive power. Will they do the same for their own president or will they leave it to the courts to determine whether Trump is abusing his power? Either way, governing by executive order is bad government.
John Hart is a visitor in the ANU's School of History and a specialist in American politics.