Congress—not executive orders—is the best way to set national policy
How’s everyone’s neck doing? Because mine is suffering from a serious case of whiplash.
In President Biden’s first 100 days, he undid over 60 of President Trump’s executive orders. President Trump has now repaid him in kind, revoking almost 100 of President Biden’s in just the first few weeks after taking office. Accompanying some of these revocations are reinstatements of policies from President Trump’s first term. For those counting, that means some federal policies have changed three times over three presidential terms. If you go further back in time, that number only increases with the reversals and reinstatements of the same policies by more distant presidents.
At some level, this ping-ponging is to be expected, especially given the extent to which presidents rely on executive orders to implement policy goals. And sometimes the substance of these sudden changes helps soften their blow. For example, President Trump’s effort to make unelected bureaucrats answerable to the president—who is accountable to the People—should be good news to everyone claiming to love democracy. Ending federal DEI programs and evaluating candidates for federal jobs without regard to their race, sex, or religion are also admirable policy goals. Tamping down on overregulation is as vital now as it ever has been.
But what if there was another, less jarring way of effecting lasting policy changes we like? Well, it turns out there is, and it’s called lawmaking.
For all of Congress’s shortcomings, the benefits of having it enact national policies abound. For one, Congress may actually improve on these policies because it was the branch built for policymaking. True, the president has a role to play in signing bills into law. But the crucible of the legislative process is designed to identify and consider the potential consequences of policy change because it requires input of representatives from all corners of the country. On a more fundamental level, Congress is also uniquely situated to filter out threats to liberty since its powers are generally divided between the House and Senate. As Federalist 62 put it, this division protects the people “by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.” This protection is obviously absent when a president acts on his own initiative.
Relatedly, relying on lawmaking in lieu of executive action may even turn down the political heat. Some of the heartburn that comes with a new administration stems from the feeling that the president is drifting outside his lane in imposing big policy change through executive fiat. And this reaction, while important and often justified, can fan the flames further as the legal challenges that come with it wind their way through the courts. This roller coaster process—which becomes more inevitable the more sweeping the policy change—takes attention away from the real issues and saps any momentum that may have been building in Congress for lasting action.
President Obama’s wholesale creation of DACA is a good example of the fleeting wins and losses that come with executive orders in lieu of lawmaking. Famously done in defiant reaction to the House’s inaction on a bipartisan Senate immigration bill, this order negated the goodwill and good faith of Republicans still willing to reach a lasting compromise and gave them instead a good reason to throw in the towel. Unsurprisingly, the DACA saga continued to devolve with President Trump’s termination of the program and the Supreme Court’s decision that he went about it in the wrong way. The consequence of these paper promises was, in the end, lasting uncertainty for those the program was designed to help.
Of course, Congress is also part of the problem (a proposition that will surprise no one). It may refrain from taking the wheel because it knows the president is willing to bear the burden—as well as any political fallout that comes with it. Or it may pass laws that do nothing more than stake out a particular policy, leaving the president to do the real job of policymaking (through executive orders, but mainly by unelected bureaucrats). Indeed, good lawmaking is as much about drafting clear laws as it is about getting them passed. But Congress is repeatedly content to cede its lawmaking powers through broad, standardless delegations to the executive. It’s no wonder, then, that we see drastic changes with polar opposite outcomes with each new administration.
For many, the beginning of a presidential term is a hopeful time that promises the instant gratification of unrolling some of the bad policies of the last one. But it’s time we start seeing this never-ending back and forth for what it really is—a big pain in the neck.
