Introduction
In the US, the executive power rests entirely on the President of the country. Article II of the US Constitution, which establishes the ownership of the executive power to the President, does not provide for presidential powers to issue any normative or non-normative legal acts. The executive powers of the President are practiced through executive orders, memoranda, proclamations, and agreements. Over the years, the executive role of the President became more powerful, complex, and larger. This shift of executive actions is especially pronounced during the presidency of Donald Trump, who takes more responsibilities and tasks, which will be discussed based on an immigration question. Although the roles that were identified by the Constitution are in action, their implementation changed dramatically since presidents tend to have more authority and less delegation to Congress.
Presidency Role Change
The absence of clear provisions on the executive orders and memoranda in the US Constitution is associated with the positions of the Founding Fathers. The authors of the document did not specify the need to endow the highest official persons with law-making powers. They proceeded from the assumption that strict adherence to the principle of separation of powers presupposes vesting the right to issue generally binding acts only to the legislative branch. However, sections 2 and 3 of Article II of the US Constitution state that the President of the US must exercise certain general powers, including being the Commander-in-Chief of the United States Army and Navy, making sure that laws are enforced in good faith (Mortenson 1176). Also, there is a management apparatus with a ramified structure and a wide range of functions, the work of which is to be regulated by the President. Article II of the US Constitution may imply that the President is not only the highest official but also the leader of the country and head of state.
According to the Constitution and, namely, the words about executive actions, in the first years after the creation of the American Union, the President began using these tools in the form of publishing various documents. The first President of the US, George Washington, signed an executive order, declaring November 26 as National Thanksgiving Day. Today, it is the legal provision that this is the US public holiday, which is celebrated on the fourth Thursday of November, which is included in the list of official holidays established by law. It was the beginning of the publication of executive orders, proclamations, memoranda, determinations directives, and regulations.
Executive orders and proclamations are instructions or decisions of the President. When based on presidential powers arising from the Constitution or statute, they can have the force and effect of law. Earlier, proclamations were rarely used in the executive branch as they were implied to provide policies or directives from presidents. For example:
Kernell et al. note that “President Obama and his allies in Congress sought to deflect criticism by observing that he had issued fewer executive orders than any president in over a century” (635). On the contrary, Trump has already issued a great variety of executive orders to show that he works actively, being highly engaged in the country’s affairs. In other words, there is manipulation by the variety of executive power forms, which is used with specific purposes by particular presidents.
Executive orders are primarily addressed to and directed by government officials and departments, affecting individuals only indirectly. However, there are the dynamics of an increase and decrease in the legislative role of the President of the US. For example, during the presidency of Theodor Roosevelt, the increase in the number of executive orders was due to the policy of the New Deal, the goal of which was to address the economic crisis associated with US participation in World War II. This demonstrates the greater role of executive orders in periods when the country required active, flexible, and focused regulatory activities. Currently, several dozen executive orders are issued annually, which indicates a fairly stable situation.
In comparison, the Trump administration is committed to reducing immigration to the US, both illegal and legal forms. Electoral districts are divided based on the number of residents of the district, not citizens. American conservatives believe this leads to an unnecessary bias in the representation of large cities and populous states in Congress. However, the federal government does not collect data on how many American citizens of every state during the census. Along with the mentioned action and the creation of the wall between the US and Mexico, the current President tries to cancel the orders that were issued by previous heads of the country.
In 2012, President Obama issued a Delayed Action for Childhood Arrivals (DACA) decree, with no backing in Congress to pass legislation. This decree protected from deportation several hundred thousand people who moved to America without documents as children with their illegal immigrant parents (Crouch et al. 569). While Obama remained a President, immigration officials did not bother these people, but Trump tried to do so in 2017. Both lower courts and a majority of Supreme Court justices recognized that Trump, as chief executive, had the power to suspend the program. However, this was done incorrectly since the rules of abolishing previous actions were not taken into account. The Administrative Procedure Act of 1946 stipulates that the actions of state bodies must be accompanied by a justification. They cannot be committed arbitrarily, abuse discretion, and should be supported by objective data. As a result of the investigation, the judges found that these conditions were not met.
The authority via delegation is an integral part of the executive system of powers in the US. The extent to which Congress supports or denies the orders of presidents significantly depends on the interpretation of the Constriction. As stated by some judges, presidents, and the representative of the law, the mentioned document grants the power to act as they wish, almost without limitations. In this case, one can speak about unilateral executive authority. Nevertheless, Antonin Scalia, one of the judges of the Supreme Court, argued that they should not and cannot determine the extent of the executive power of the president. More to the point, one of the key roles of Congress is to restrict the actions of the president so that they do not exceed their roles. In today’s US, it is possible to see that the interaction of Congress and the president is based on the above principle, which was implied by Founding Fathers.
Abraham Lincoln stated that the head of the executive branch should receive all his powers from the people. In the case of Trump, it seems that his Republican loyalty dictates his executive actions, which can be seen from the examples with immigrants. Although Trump argued that he strives to ensure security and increase employment rates in the country, his approach to the immigrant issue cannot be defined as appropriate. For example, the executive action regarding the wall led to numerous illegal caravans of immigrants, who had to face poverty, persecution, and broken families. The system of reducing the flow of immigration was not properly considered, which still causes negative outcomes.
Another change that can be noted is the increased attention of courts to the executive orders and memoranda of presidents. This tendency seems to indicate that presidents are likely to take too much instead of strictly following their presidential responsibilities and roles. Namely, courts scrutinize executive orders in more detail compared to public law issues. To evaluate one or another decision of a president, the courts consider it about the Constitution and current laws. However, it should be reasonably noted that not only the executive actions of Trump were voided by the courts, but also those of Obama. It happened when he first declared about the introduction of the law protecting undocumented immigrants. The court responded that by this executive order, the ex-president overarches the Constitution.
Future of Presidency
Based on the above discussion of the changes in the executive power of the US presidents, one can state that the current tendency is the extension of their responsibilities and tasks. While Congress is expected to oppose inappropriate orders and memoranda, the evidence shows that it is better to decrease the existing tension. Since the actions of Obama and Trump were proactive and radical, it is possible to suggest that it is time for economic and political changes, but great attention should be paid to the needs of the US citizens. Therefore, one should recommend that the present executive power rates are to become lower, which is critical for preserving the balance of powers between executive, legislative, and judicial branches. Democracy is the basis of American society, and
The recent destruction of monuments, including statues to Confederate leaders, is a manifestation of a broader trend. For many years, the US has been based on the understanding that people have different views, backgrounds, and circumstances, and inevitably may disagree with each other. There is a difference between preserving a statue of a historical figure and awarding them the Nobel Peace Prize. However, there has always been an idea that, in the name of national cohesion and mutual self-respect, US citizens should accept – not necessarily respect or admire, but accept historical symbols that are important to a significant portion of the American population. The tradition of compromise and recognition on which the US was founded and which, along with entrepreneurial spirit and the rule of law, makes America great, is now being attacked by left-wing groups with close ties to the Democratic Party.
Conclusion
To conclude, this paper revealed that compared to the previous presidents of the US, recent heads of the state are more likely to extend their executive power by issuing executive orders. Another form of manipulation is the replacement of orders by memoranda or proclamations. The issue is that the presidential authority line is not determined, and it creates various interpretations when it comes to executive powers. Therefore, it is recommended that the current rate of executive actions should be reduced to keep the US democratic and also ensure the balance of powers.
Works Cited
Crouch, Jeffrey et al. “The Law: The Unitary Executive Theory and President Donald J. Trump.” Presidential Studies Quarterly, vol. 47, no. 3, 2017, pp. 561-573.
Kernell, Samuel, et al. The Logic of American Politics. Sage Press, 2017.
Mortenson, Julian Davis. “Article II Vests the Executive Power, Not the Royal Prerogative.” Columbia Law Review, vol. 119, no. 5, 2019, pp. 1169-1272.