The questionable legitimacy of executive orders

As of February 1, 2021, Joe Biden has officially signed 42 "executive orders."  While I'm not usually a betting man I'd confidently wager that he's planning on soon signing many, many more in his ongoing, fervent quest to be the commander in chief, lawmaker in chief, and usurper in chief.

Interestingly, when I started on this piece just a few days ago, his number of executive orders sat at 21.  Keep in mind that this was already a very high number, given the short amount of time he's been in office.  With his executive order count having doubled in such a short timeframe, we have even more of a reason to examine executive orders with a close, thorough look at their validity, legitimacy, and constitutionality.

A frequent criticism of executive orders is that they essentially allow the president to perform legislative duties, sometimes bypassing Congress, the legitimate, constitutional lawmaking body.  In a sense, this criticism is similar to a common Supreme Court criticism, in which the justices are accused of taking on a lawmaking role. 

Executive orders are often portrayed as having a solid constitutional legitimacy, with the federal government archiving them with the initials "E.O." followed by the executive order's number.  What's interesting is that, while executive orders are treated as if they were an official, constitutional power and term, nothing in the Constitution describes anything called an "executive order."

Past presidential mandates weren't always referred to as executive orders, and such orders weren't even numbered until 1907, with the large number of historical orders reclassified as "unnumbered orders."  This seemingly indicates that the modern-day concept of executive orders was practically nonexistent in the country's early days.

Another similar piece of evidence is the number of orders issued by all presidents.  Recall that executive orders were not recognized early in the country's history and some of the older orders by earlier presidents are called executive orders only based on our current political standards.

Relating to what I said previously, prior to Theodore Roosevelt, all executive orders were unnumbered.  If you compare the number of orders issued by early presidents to the number issued by more recent presidents, you'll see that there's a drastic difference, with the first six presidents issuing fewer than ten orders each.

Compare that to the last six presidents, all of whom (except for Biden at the moment) have an executive order count well over one hundred.  (A list of each president's executive orders can be found here.)  These data seem to indicate that "executive orders" weren't really considered an established, valid concept until long after the presidency was conceived.

To conclude, the Constitution does grant the president some authority.  For example, he is the commander in chief of the armed forces.  He can sign or veto bills, and he's to make sure that laws are faithfully executed.  However, the executive order is a more recent invention, unrecognized by the Constitution while at the same time providing a way for presidents to usurp Congress and quite possibly the will of the People.

Landon Freeman is a lifelong writer, political enthusiast, and advocate for Christian apologetics.

Image: National Archives.