While conservatives enthusiastically cheer President Trump’s executive order which attempts to skate around Obamacare regulations, few conservatives are asking the major question: are such executive orders a violation of the constitutional limits placed on presidential power?
On the one hand the answer may be no — the president is justified in using executive orders in the following capacities:
- as Commander-in-Chief
- as Head of State
- as Chief Law Enforcement Officer
- as Head of the Executive Branch
However, although these roles might allow the president to issue the occasional executive order, historical evidence suggests that the current political trend of using executive orders as legislative instruments is becoming excessive.
For example, from the beginning of George Washington’s presidency (1789-1797) to the end of William McKinley’s term (1901), the maximum number of executive orders issued per year per presidency was McKinley’s average of 41.
Since then, only two presidents have issued a number comparable to McKinley’s average number of executive orders issued per year: Bush with an average of 36, and Obama with an average of 35. In other words, an extraordinary number of executive orders have been issued per year especially when considering how reluctant earlier presidents were to issue them.
From the time of Washington to Lincoln (1789-1865), which encompassed 16 presidents, the lowest number of average executive orders issued per year per president was Washington’s average of 1 to Lincoln’s average of 12.
Now, consider the range of the average number of executive orders passed per year per presidency from McKinley’s presidency to Trump’s (1865-present). During that span, the lowest number is McKinley’s average of 41 and the highest is Roosevelt’s average of 308.
That’s a major difference from the period of Washington to Lincoln.
And the recognition of which should lead us to the following questions: what political tradition are conservatives really preserving, conserving, or maintaining? Is it the newly emerging tradition, one that began from around the time of the McKinley era, of using the executive office to meet partisan policy goals?
If conservatives insist upon trying to maintain the latter tradition, then perhaps today’s conservatism really isn’t that conservative after all. Because American conservatism doesn’t have a place for people who create law by executive decree — the founding fathers left that behind in England with a king they despised.