“Audacious” is right: executive orders have gone too far

Apparently President Obama plans to use his last year in office to issue a series of “audacious” executive orders, as his chief of staff described them in The Hill. Obama is frustrated that Congress doesn’t acquiesce to his agenda, so his solution is to go around Congress as much as possible.

This executive order trend is growing in statehouses, too, including our own. Gov. Inslee, for instance, has been unable to convince the Legislature to go along with his cap-and-trade plans on carbon emissions. Even the Democratic-led House has not taken a vote on Inslee’s proposals – the votes just aren’t there to get a majority. Inslee’s response was to issue carbon regulations by executive order, using the state’s Clean Air Act as his justification.

The steps leading to the increased use of executive orders are decades in the making.

  1. Congress and state legislatures have been complicit in ceding authority to presidents and governors. That has occurred through laws expanding agencies’ authority, and also by simply not asserting legislative prerogatives. Columnist George Will says of our government model based on separation of powers, “No matter what the motives are, each institution is supposed to defend itself, they’re supposed to be rivals. The Congress has been a weak rival of the executive and it’s time to stand up on its hind legs.”
  2. This has occurred within the rise of the regulatory state. Government’s published regulations have expanded at an incredible rate, to the point that no person, business, or industry can grasp all of the relevant regulations affecting them. That leaves many “breaking the law” with these regulations without even knowing it.
  3. Executives are more willing to use thin legal justifications to issue the orders they want, without legislative approval. Inslee’s carbon regulations, for instance, are based on a law written to tackle particulate pollution, not carbon. Courts tend to be deferential to executive branch regulatory power, and the legislative intent behind laws from years or even decades before is disregarded.

This overreliance on executive orders may be a way to “get things done” but it contributes to an unstable policy environment. Obama’s chief of staff may talk of “lock[ing] down” these regulations, but that just isn’t true. They can just as easily be revoked with a stroke of a pen by the next president. The Republican presidential candidates have pledged to do just that with many of Obama’s executive orders.

The president casts his use of executive orders as a last option after being rebuffed by an intransigent Congress. A philosophically opposed legislative branch is no excuse for expanding executive authority beyond legislative intent, or to enact by order regulations for which there is no majority support in Congress. When the executive and legislative branches are diametrically opposed, the end result is a kind of stable stasis. That’s the way it’s supposed to work.

Routine use of executive orders to advance controversial domestic policy goals is not good governance. That’s true no matter who’s holding the pen. I don’t doubt that some of the candidates running for president today would be just as irresponsible (ahem, Donald Trump) with the power placed in their hands. A better route would be presidents of either party who stay within the law and respect the separation of powers.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.