The Dangers When a President Writes His Own Laws

When President Obama used his State of the Union speech to threaten Congress with executive orders to bypass the legislative process, he outraged many members of both parties for blatantly defying the Constitution. Although almost every president since George Washington has violated the Constitution many times in many ways, few have had the audacity to announce plans publicly to do so -- before Congress, no less.

Nothing in the Constitution gives a president power to issue executive orders or proclamations with the force of law. The opening words of Article I of the Constitution are quite clear: "All legislative powers... shall be vested in a Congress of the United States." In fulfilling its obligations, Congress has passed about 20,000 federal laws since the beginning of the Republic. But American presidents beginning with Washington have issued more than 13,500 executive orders and proclamations with the force of law, or about two-thirds as many such acts as Congress.

How can that be? How could presidents have taken the law into their own hands without a peep of protest from Congress, the Supreme Court, or the American people?

The process began innocently enough under President Washington, when Congress was in recess much of the year and members lived days, often weeks away by horseback or carriage from the nation's temporary capital in New York, first, then Philadelphia. Often facing national crises alone, Washington had little choice but to act unconstitutionally to fulfill his oath of office "to preserve, protect, and defend" the nation. With no funds to run the government in the fall of 1789, he borrowed money from private banks, and, the following year, when Indians attacked American settlers in the West, he drafted troops and sent them to war. In both cases, he acted unconstitutionally -- without the knowledge or consent of Congress.

And when France declared war on England in 1793, pro-French and pro-English mobs turned American cities into battle zones. Washington took the law into his own hands in the absence of Congress to end the street fighting: He issued an executive order, the Neutrality Proclamation. The first executive order in American history, it declared the United States neutral in the Anglo-French war and prohibited Americans from participating on either side.

Washington issued his executive order, however, in the interests of the nation and the American people -- not to thwart the political will of Congress, as President Obama said he intends to do. "Wherever and whenever I can take steps without legislation," President Obama declared in his State of the Union speech, "that's what I'm going to do."

Since Washington's first presidential executive orders -- he issued eight -- presidents have followed his precedent more than 13,500 times: Theodore Roosevelt more than 1,000 times, Woodrow Wilson more than 1,800, Franklin D. Roosevelt, more than 3,500 (the most of any president), and Obama, approaching 200 times.

Although Washington issued his Neutrality Proclamation and Lincoln his Emancipation Proclamation to benefit the nation, other presidents had more nefarious motives for their executive orders. Many sought to thwart the will of Congress and impose a presidential agenda on the nation without legislative support -- as Obama admitted in his State of the Union address. And some presidents -- George W. Bush and Obama are examples -- issued executive orders that abridged constitutional rights in what they believed to be the interests of national intelligence. Disclosures by former U.S. intelligence consultant Edward Snowden exposed both presidents as having issued secret executive orders abridging constitutional privacy rights of American citizens and expanding presidential powers of what many scholars call the "imperial presidency."

Although associated with more recent presidents, the "imperial presidency" was actually the creation of George Washington, who asserted presidential powers not granted by the Constitution in seven broad areas of government: foreign affairs, national defense, government finances, federal law enforcement, executive appointments, executive privilege, and executive orders with the force of law. Although President Washington used executive orders wisely and responsibly -- and President Obama insists his intent is to help American workers -- the executive order is a grave danger to the nation.

The Constitution did not give the president power to issue executive orders. Congress and the Supreme Court should and must curtail or abolish the president's use -- and abuse -- of such orders before he or a successor misuses it to transform himself from an imperial president into emperor.


Historian Harlow Giles Unger is the author of "Mr. President": George Washington and the Making of the Nation's Highest Office, which Da Capo Press has just published. Mr. Unger has written more than twenty other books, including recent biographies of James Monroe, Patrick Henry, and John Quincy Adams, which Da Capo has now released in paperback.