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Executive Orders, Past and Present

Introduction

When a president signs an executive order, it will sometimes spark partisan debate because it leads to a policy change. What makes an executive order unique from Congressional legislation? And what Constitutional questions might their usage raise? By studying the purpose of executive orders and their historic use, students can find common themes and form their own opinions on what constitutes a valid use of executive power.

Resources

Directions

Have students read the first sentence of Article II, Section 1, and all of Article II, Section 3. Then have them read What is an Executive Order, and Why Don’t Presidents Use Them All the Time? and answer the following questions.

  1. According to the Constitution, the president holds the executive power of the national government. In your own words, what does this mean?
  2. Using the article, define what an executive order is.
  3. What does the article say are some limitations to the power of executive orders?
  4. The author argues that executive orders are not unilateral. Some contend that executive orders sometimes are actually very unilateral, and violate our constitutional principles of popular sovereignty and checks and balances. They claim that unelected bureaucrats within executive agencies draft these orders, figures that the people have a hard time holding accountable. Additionally, this side argues that executive orders sometimes create new policy without input from Congress, the branch tasked with creating laws. Which side do you agree with? Why?

Next, have students research two famous executive orders from history. Possible starting points are President Franklin Roosevelt’s Order 9066, President Lincoln’s Emancipation Proclamation, and President Truman’s Order 10340. Have them use the following questions to guide their research, and then present their findings.

  1. Who signed this executive order?
  2. What year was it signed?
  3. What policy did this order enact?
  4. Were there any legal challenges to this order? What were they?
  5. Do you believe this order violated any constitutional principles? Or do you believe it was a lawful measure meant to execute a constitutional policy previously passed by Congress? Explain.

Extension

Read a newspaper to learn more about President Biden’s recent executive orders. What policies are these orders directed at accomplishing? Why do you think one of the first thing a new president does in the modern era is sign executive orders? What are some benefits and challenges that result from this pattern?

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Video

Federal Power: Presidents and the Constitution

6 Min

Debate about the limits of the president's power began at the Constitutional Convention and continues today. James Madison, considered the "Father of the Constitution," believed that strict limits on federal power were best for liberty. Powers of the federal government which were not enumerated in the Constitution were forbidden. Many later Presidents agreed with Madison, while others, beginning with Theodore Roosevelt, took a more expansive view of the scope of federal power. Theodore Roosevelt was the first President to argue that powers not forbidden were granted. He presided over the greatest expansion of federal power in our nation's history to that time. While the President has the power to "recommend measures" to Congress which he believed are necessary, the President is not a lawmaker. Franklin D. Roosevelt and Lyndon B. Johnson, capitalizing on what Theodore Roosevelt had called the "bully pulpit," were open advocates of policies they believed were needed, and which also increased the size and power of the central government. Ronald Reagan worked decrease the side of the national government and restore what he saw as the rightful place of states in our federal system. Tension between these two understandings (expressed powers and implied powers), and debate over the outcomes of their exercise, has persisted throughout American history.