Executive Orders - Notes

• Proclamation: All debate track members must like this video.

• Humorous juxtaposition: The topic aligns with current events, a rare occurrence.

• Trump's speaking engagement in Grand Rapids, Michigan:

  • The crowd's fervor surpassed that of other prominent politicians (Bush Jr., Obama, Bernie).

  • Van Andel Arena: Filled beyond its 12,000-seat capacity despite the late weekday timing, illustrating significant public interest and support.

  • Crowd’s enthusiasm: Compared to a Snoop Dogg show; a neighbor likened it to a Nuremberg rally, showcasing diverse and extreme reactions.

Topic Overview

• Discusses the implications of the current presidency, including policy changes, political climate, and international relations.

• The topic explores the present state and potential future trajectory of the presidency, considering factors like public opinion, legislative actions, and global events.

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Executive Orders Resolution

• Topic is confusing and disorienting, requiring clear definitions and analysis.

• Resolution: On balance, in the United States, the benefits of presidential executive orders outweigh the harms.

• Executive orders (EOs): Written commands from the president to manage federal government operations.

  • Contrast with presidential proclamations: Ceremonial or symbolic declarations, lacking the force of law.

• Focus: Only federal-level presidential EOs.

• Benefits vs. Harms:

  • Legality is distinct from benefit; legal actions can be harmful, and vice versa, indicating the complexity of evaluating EOs.

  • Levels of EO analysis:

    • Specific EOs: Analyze individual orders, examining their immediate and long-term effects.

    • General principles: Consider the overall implications for government, assessing the broader consequences of executive power.

• Framers' concerns: How to create a strong executive without creating a king?

• Core Question: On balance, in the United States, the benefits of a strong executive branch outweigh the harms?

• Analogy:

  • Specific vs. General: Judging a loaded gun's value based on whether it shot a burglar or opened a beer bottle.

  • The real question is whether they should be carrying it at all, highlighting the underlying debate about executive authority.

Function of Executive Orders (EOs)

• Range:

  • Dramatic policy reversals (e.g., pipeline approvals).

  • Routine directives (e.g., holiday half-days), illustrating the breadth of EOs.

• Purposes:

  • Enforce legislation:

    • EO 11246 (Lyndon Johnson): Prohibits discrimination by federal contractors, supporting the Civil Rights Act of 1964, which ensured equal opportunities in employment.

    • EO 13224 (George W. Bush): Authorizes asset seizure of suspected terrorists, bolstering national security measures.

  • Fine-tune policy:

    • EO 13166 (Clinton): Requires federal agencies to provide access to those with limited English capabilities, interpreting civil rights to include language-based discrimination, thereby expanding civil rights protections.

    • EO 14008 (Biden): Sets climate-related goals, linking laws like the Clean Air Act, demonstrating commitment to environmental policy.

  • Restrict laws:

    • EO 14210 (Trump): Aims to cut and downsize federal departments, reflecting a policy to reduce the size and scope of government.

    • The president determines much of their scope, underscoring the significant power wielded through EOs.

• Overturn existing EOs:

  • EO 13792 (Trump): Removed protections for national monuments, altering conservation policies.

  • EO 13492 (Obama): Revoked Bush's EO regarding Guantanamo Bay detainees, reversing detention policies.

National Emergencies Act (NEA) of 1976

• Allows presidents to declare emergencies via EO, granting them expanded powers.

• Grants the president 136 emergency powers:

  • Suspending restrictions on chemical and biological weapons, a controversial power with significant implications.

  • Suspending the Clean Air Act, raising environmental concerns.

  • Authorizing military construction, enabling rapid deployment of resources.

  • Drafting retired military members, increasing available personnel.

  • Seizing communications infrastructure, controlling information flow.

  • Freezing Americans' bank accounts and property, a drastic economic measure.

  • Seizing industry, allowing government control over production.

  • Using U.S. troops for domestic law enforcement, a contentious expansion of executive power.

• Example:

  • Clinton used EO 13119 to declare an emergency related to Kosovo, seizing assets from Yugoslavia, Serbia, and Montenegro, demonstrating the practical application of NEA.

Powers Without Executive Orders

• Commander-in-chief power: Can order air strikes, deployments, and covert operations.

  • War Powers Resolution of 1973: Allows troop deployment for 60 days without congressional authorization, yet it is frequently debated and sometimes ignored, leading to constitutional questions.

• Appointments and removals: Hires and fires heads of departments (cabinet).

  • Includes the secretaries of defense, agriculture, commerce, health, housing, transportation, and others, along with the attorney general, the director of national intelligence, and various other administrators, influencing policy across diverse sectors.

• Approves and vetoes legislation from Congress, shaping the legislative landscape.

• Wields personal influence: Directs agencies via memos, speeches, diplomacy, and foreign relations, guiding governmental actions through informal channels.

Legality

• Constitutional basis: Article 2 grants executive authority to enforce law and manage resources.

  • E.g., "The executive power shall be vested in the president of the United States of America. He shall take care that the laws be faithfully executed," establishing the foundation for executive action.

  • Executive orders must be supported by Congress, either expressly or impliedly, ensuring some level of legislative oversight.

• Presidential immunity: Trump v. U.S. grants presidents absolute immunity for official acts.

  • Presidents can issue any EO without criminal charges, raising concerns about potential abuse of power.

  • People can sue to stop the order's execution, providing a legal check on executive action.

Process of Executive Orders

• Authors: Administrative staffers, lawyers, special interest groups (e.g., Project 2025 and the Heritage Foundation).

• Legal review: EOs must have legal justification and may pass through the Office of Legal Counsel, ensuring legal compliance.

• Trump's EOs:

  • Drafted in advance of inauguration, indicating meticulous planning.

  • Potentially written with AI assistance (formatting errors, stilted language), showcasing modern technological influences.

Post-Signing Process

• No expiration dates; remain in place until removed.

• Presidents can revoke, modify, or make exceptions to EOs.

  • EO Pendulum: Presidents often reverse predecessors' EOs, resulting in policy volatility.

• Outcomes of EOs cannot always be reversed (e.g., selling facilities to the private sector), leading to lasting consequences.

• Periodic cleanup: Irrelevant EOs are removed, streamlining the body of executive orders.

Checks on Executive Orders

• Congress:

  • Cannot directly veto an EO but can create legislation to make it illegal, providing an indirect check.

  • The president can veto this legislation, leading to potential gridlock.

  • Congress can override the president's veto with a two-thirds supermajority, which is rare, highlighting the difficulty of overriding presidential decisions.

• Courts:

  • Have more power to rule EOs illegal, serving as a significant check on executive power.

  • Historically rare, but the number of struck-down EOs is increasing, suggesting growing judicial scrutiny.

  • Trump's executive orders being challenged in court, indicating active judicial oversight.

  • A judge issued an injunction against a series of executive orders targeting support services for libraries, museums, minority businesses, and mediation services, demonstrating the courts’ willingness to intervene.

• Gathering more and more power throughout each presidency, that power is passed on to the next president.

  • President ignores the courts, that means all future presidents can ignore the courts, raising concerns about erosion of checks and balances.

History of Executive Orders

• All presidents except William Henry Harrison have used EOs or equivalents.

• Current naming system started in 1907, backdating to 1862.

• First EO: George Washington asked department heads to describe their jobs, establishing a precedent for executive communication.

• 1863: Abraham Lincoln issued the Emancipation Proclamation, a landmark decision affecting civil rights.

• 1933: Franklin Roosevelt issued EO 6102, forbidding hoarding gold, in response to the Great Depression.

• 1942: Roosevelt issued EO 90066, spurring the internment of Japanese Americans, a controversial action during World War II.

• 1948: Truman signed EO 9981, integrating the armed forces, a significant step toward equality.

• Woodrow Wilson and Franklin Roosevelt lead in sheer numbers of EOs, reflecting their active use of executive power.

EO Trends Over Time

• Modern presidents use fewer orders per year than pre-World War II counterparts.

• The numbers have been steadily rising as of late.

  • Obama averaged 35 per year.

  • Trump averaged 55 per year.

  • Biden has executed 79 executive orders, indicating a recent increase.

• While the numbers of executive orders are nowhere near their all-time high, the powers the president commands through them are larger than ever, with EOs becoming the de facto power of the president to write new laws as Congress abdicates its law-writing responsibilities to the executive branch.

Reasons for Power Shift from Congress to Executive

• Greed: Congresspeople are happy with a strong executive when their party is in power.

• Laziness/Understaffing: Congressional staffing levels have declined, reducing their ability to create new laws.

• Practicality: Executive orders are a way to get things done in an age of partisanship and congressional gridlock.

Historical Theories That Have Helped The President Gain More Power

• Whig theory: The president as clerk, not leader; should only do what the Constitution explicitly allows, emphasizing a limited executive role.

• Stewardship theory: The president is representative of the people; should be assertive and proactive, arguing for a more active presidency.

• Prerogative theory: The president as guardian of the system; may violate norms if it's in the nation's best interest, permitting extraordinary actions in times of crisis.

• Unitary theory: The president has ultimate control over the executive, advocating for centralized executive power.

• Maximalist theory: The president as king; the entire executive branch exists solely to serve the president, representing an extreme view of executive authority.

Federal Register

• All executive orders are filed in the Federal Register.

• A lot of the names of the EOs sound pretty benign.

• Can take a look at a Harry Truman executive order from 1951 establishing the President's Commission on Health Needs

• Recent Trump's EOs: Less formal and more propagandistic. So if you need to justify one of Trump's EOs specifically, look no further than the EO text itself, at least as a start, which provides a number of justifications up front for why it's being written before getting into proper arguments.

Strategy Discussion

• Benefits and harms: Specific vs. general.

• Timeline considerations:

  • If we go full history, the Emancipation Proclamation might single-handedly outrule everything else, although that pushes us into definitions debate, as while it was functionally an EO, it was technically a proclamation.

  • Vast majority of evidence out there on is on recent EOs from the last few presidencies and very specifically from Trump's.

• What about future EOs?

• What's the alternative?

Affirmative Arguments

• Executive orders have enabled presidents to accomplish great things.

• The executive order allows presidents to act swiftly in the case of crisis in our rapidly changing world.

• Specific recent benefits:

  • 14110: Allows government oversight of foundational AI models.

  • 13873: Prevents the bulk sale of U.S. data on U.S. citizens to foreign adversaries.

  • Waste 14210, the Doge EO, aims to shrink the federal government and reduce waste, cut spending, and increase efficiency.

  • 14116: Improved cybersecurity of the nation's ships and ports.

  • 14186: Provides an iron dome for strategic missile defense.

  • 14279: Reforms the university accreditation system.

• Executive order is simply how the president instructs the executive branch.

• Consider a world without the EO. What would we be left with? A president who can't make commands?

• Congress is notoriously gridlocked and unable to act without the executive order.

• The reason Maxine Waters may have been eager to have Biden pass executive orders is because in an age of partisanship and congressional gridlock, executive orders may be the only surefire way to get things done.

Negative Arguments

• Executive orders have grown to give more and more power to the president, unbalancing the system of checks that the Constitution lays out for the three branches of government.

• Specific Harms:

  • 11 will vastly expand oil and gas interests, destroy successful clean energy projects, and launch an all-of-government assault on the environment and public health.

  • President Trump has also misused executive orders in ways that harm civil rights, violate constitutional limits, and disproportionately impact vulnerable communities.

  • Going 23 quote: "In 2019, Donald Trump declared a national emergency." The declaration triggered a law that allowed him to divert funds from military construction projects, weapons maintenance shops, aircraft rescue and firefighting stations, cyber operations facilities—all were sidelined in favor of the border wall.

  • Recent executive orders have strained public health by cutting funding and discouraging vulnerable populations from seeking care.

  • Targeting of higher education through executive orders harms social responsibility, U.S. global leadership, and science funding: Institutions he thinks have personally offended him, including Columbia, UPenn, Cornell, Harvard.

  • Executive orders also harm national parks, wildlife, and the environment.

  • EO 14288 decreases the already low level of police accountability in America.

  • Trump's EO mandated removing two regulations for each regulation added, creating congressional gridlock as agencies attempt to navigate this absurd demand.

• Executive orders can often prove to be ineffective

  • Mobilization, they're often not enough to achieve policy objectives by mobilizing the forces of government, like money and people.

  • Executive orders are often overturned by the next president.

  • Incentivize presidents to govern on short time frames, often with little regard for long-term stability and consequences.

• Harmful impacts

  • Investment, destroying long-term investment and harming the economy.

  • Economy, customers spend less, businesses limit production, investment, and employee compensation, and financial markets are more volatile.

  • Long-term challenges: The pendulum reduces the U.S.'s ability to address major long-term challenges.

• Undermine civil liberties

  • EOs enable corporatism, allowing presidents to easily elevate their cronies and friends instead of the American people in the country.

  • EOs fuels imperialism.

  • Trump's executive orders undermine environmental protections and public health in favor of fossil fuel companies.

Conclusion

• Call out: autocracy

• Executive orders are made for a demagogue to abuse.

• Donald Trump has issued an executive order that will make it even harder to hold cops accountable and flirts blatantly with martial law.

Send off

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