By Melissa Erickson
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While the United States is a country that runs on a system of checks and balances, with each branch of government wielding different powers established in the Constitution, the president stands alone. As the most powerful player with unparalleled potential to lead the country, the president commands impressive tools such as executive orders to make his will into action.
But how do the president’s executive orders fit into the American system of checks and balances? To find some answers, two experts, Mark Major, a senior lecturer in the political science department at Pennsylvania State University and author of “The Unilateral Presidency and the News Media: The Politics of Framing Executive Power,” and Mitchell Sellers, an assistant professor in the political science department at Temple University, examine how our system prevents the president or any branch from exercising too much power.
Civics 101
Back in school we learned that the three branches of government operate with separate powers. At the most basic: The legislative branch (Congress) makes the laws. The executive branch (president) executes the laws. The judicial branch (courts) interprets the laws.
Each branch also has powers to keep the others in check. For example, when Congress passes a law, the president can veto it, but Congress can override a veto with enough votes. The Supreme Court can declare a law unconstitutional, and the Senate approves the president’s nominees for court justices.
Less well-known are the unilateral powers of the president, or the ways a president can act without the support of Congress and the courts, Major said. Executive orders are just one type of unilateral power available to the president. Others include signing statements, presidential proclamations (such as the Emancipation Proclamation), national security directives and presidential memorandums, Major said.
Not mentioned in Constitution
One of the first things that should be known about a president’s executive orders is that they are “a derived power” that is not clearly stated in the Constitution, Sellers said. Instead, they “originate out of tradition starting with Washington and continuing through Trump,” Major said.
“Presidents rely on predecessors for experience and power. Once one president acts in a certain way, others will follow,” Major said.
Historically, presidents use executive orders to direct policy and set agendas, and they are most commonly used in the first 100 days of a presidency and toward the end, Sellers said.
“They want to start by making big changes, then later they’ll use different strategies and work with the legislature to get things done,” he said.
Often used as a way to jump-start promises made on the campaign trail, executive orders are actually not that common these days. Issuing executive orders as a presidential strategy peaked under President Franklin Delano Roosevelt, who issued on average 307 each year of his historically long tenure, 1933-45. Former President Barack Obama issued the least amount in the past 120 years, 35 on average, followed by former President George W. Bush with 36 and former President Bill Clinton with 46, according to the Pew Research Center.
Executive orders walk a fine line between achieving policy objectives and not making Congress or the courts react.
“It’s a delicate calculator between what do I want to achieve and what can I get away with. Presidents act alone but within the system of checks and balances,” Major said.
Cutting through gridlock
In recent years, Washington has been plagued by partisan gridlock, and executive orders are a useful tool for a president to make things happen.
“If everything has to be approved by Congress, nothing would get done,” said Sellers, who called it “reasonable” for presidents to have some unilateral power.
Any policy change needs to be grounded in existing law, but with so much legislation adopted over the last 200-plus years, that’s not difficult to do, Sellers said.

Recent examples of executive action:

Question: Why could a federal appeals court in Seattle stop the president’s travel ban?
Background: On Jan. 27, President Trump signed an executive order barring any non-U.S. citizen from Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen from entering the United States. The courts got involved, and a U.S. District Court in Seattle, Washington, granted a restraining order halting the travel ban.
Answer: “While the president acted alone, his actions are still within the context of checks and balances. They’re subject to policy and judicial review. States can challenge an order, and it’s up to the courts to decide,” Major said.
In deciding to put the order on hold, a three-judge panel noted that the states of Washington and Minnesota had raised serious concerns about religious discrimination and that due diligence wasn’t served. In essence, “The courts did a cost-benefit analysis and found that enforcing the order would increase harm on citizens” while showing no evidence that any foreigner was responsible for a terrorist act on U.S. soil, Sellers said. “The hardship was greater than the treatment,” he said.
What was extraordinary was the immediate and swift pushback from the courts less than two weeks after Trump took office, Major said.
“The president usually gets the final words, but not always. The political system is capable of checking the president,” Major said.

Question: Does having a Congressional majority and president of the same party erode the power of checks and balances?
Answer: Having one party in charge of both Congress and the presidency can be a cause for cheer or concern, Major said.
“With a unified government, congressional oversight tends to drop and drop dramatically,” said Major, referencing the current political climate as well as Obama’s first two years in office.
Surprisingly, research shows that presidents act alone and issue more executive orders under a unified government, not when the opposing party is in power in Congress, Major said. With “friends” in Congress who will not get in the president’s way, he is more likely to issue executive orders, Major said.

Question: Congress has to vote to go to war, but the president is the Commander in Chief — is that why unilateral action like drone strikes is OK?
Answer: When it comes to war powers there’s a stark contrast to the theory written in the Constitution and the practice of the political system, Major said.
“Congress has the sole authority to declare war, but the president executes the action. There’s large wiggle room and leeway when it comes to foreign policy,” Major said.
Since the War on Terror is not an officially defined war, the president has temporary abilities to strike opponents, Sellers said. The president is able to “get around it because we never declared war. It’s part of a military conflict effort,” he said.
Additionally, whether Congress doesn’t want the responsibility or it’s been taken away, the evolution of national security now falls more directly on the president’s shoulders.
“Over the years Congress has gradually given responsibility to the executive branch,” Major said.
Legislation by other means
Partisanship plays a huge role in how people view executive actions, Major said.
“When you’re on the outside looking in, everybody becomes a constitutional scholar. When your side is not in power, it looks unconstitutional. When you are, it looks like a valuable policy tool,” Major said. So Democrats accuse Republican presidents of overreaching and acting like kings, and Republicans attack Democratic presidents for having too much power and acting like tyrants.
“Ultimately, the conversation needs to be on the nature of unilateral action. Should the president have these types of power? We need to look at the issue rather than have a partisan lens,” Major said.
More than 15,000 executive actions have been made, spanning everything from domestic policy, space travel and agriculture to science and technology, immigration, the environment and more. In addition to the Emancipation Proclamation, which freed all slaves living in the Confederacy in 1863, some of the most well-known executive orders include:
• Indian Appropriations Act of 1871, which empowered the government to remove by force if necessary Native Americans from ancestral homelands and create reservations.
• Executive Order 7034: As part of President Roosevelt’s New Deal in 1935, this created the Works Progress Administration to increase employment for the jobless during the Depression.
• Executive Order 9066: Japanese-American internment, which authorized in 1942 the detention of more than 110,000 Japanese-Americans on the West Coast for the duration of World War II.
• Executive Order 9981: Desegregation of the armed forces in 1948, which was part of a plan to extend civil rights to African Americans and phase out all-black units of the military.
• Executive Order 10924: President John F. Kennedy created the Peace Corps, which was one of his campaign promises, as a trial program paid for by discretionary funds.