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What is an executive order, and why don’t presidents use them all the time?

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Assistant Professor of Political Science, Vanderbilt University
Sharece Thrower does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Just hours after taking the oath of office, President Joe Biden signed nine executive orders – far surpassing every other president’s first day on the job in modern history.
These orders advance urgent issues like COVID-19 response and undo many of Trump’s policies on immigration and environmental deregulation.
Biden is not the first U.S. president to issue an executive order, and he certainly won’t be the last. My own research shows executive orders have been a mainstay in American politics – with limitations.
Though the Constitution plainly articulates familiar presidential tools like vetoes and appointments, the real executive power comes from reading between the lines.
Presidents have long interpreted the Constitution’s Article 2 clauses – like “the executive power shall be vested in a President” and “he shall take care that the laws be faithfully executed” – to give them total authority to enforce the law through the executive branch, by any means necessary.
One leading way they do that is through executive orders, which are presidential written directives to agencies on how to implement the law. The courts view them as legally valid unless they violate the Constitution or existing statutes.
Executive orders, like other unilateral actions, allow presidents to make policy outside of the regular lawmaking process.
This leaves Congress, notoriously polarized and gridlocked, to respond.
Thus, executive orders are unilateral actions that give presidents several advantages, allowing them to move first and act alone in policymaking.
Every U.S. president has issued executive orders since they were first systematically cataloged in 1905.
In March of 2016, then-presidential candidate Donald Trump criticized President Obama’s use of executive orders.
“Executive orders sort of came about more recently. Nobody ever heard of an executive order. Then all of a sudden Obama – because he couldn’t get anybody to agree with him – he starts signing them like they’re butter,” Trump said. “So I want to do away with executive orders for the most part.”
Little in this statement is true.
Obama signed fewer orders than his predecessors – averaging 35 per year. Trump issued an average of 55 per year.
Against conventional wisdom, presidents have relied less on executive orders over time. Indeed, modern presidents used drastically fewer orders per year – an average of 59 – than their pre-World War II counterparts, who averaged 314.
Executive orders have been used for everything from routine federal workplace policies like ethics pledges to the controversial 2017 travel ban restricting entry into the United States.
They have been used to manage public lands, the economy, the civil service and federal contractors, and to respond to various crises such as the Iran hostage situation and the COVID-19 pandemic.
Presidents often use them to advance their biggest agenda items, by creating task forces or policy initiatives and directing rulemaking, the process for formally translating laws into codified policy.

Why don’t presidents always issue executive orders, a seemingly powerful policy device? Because they come with serious constraints.
First, executive orders may not be as unilateral as they seem. Drafting an order involves a time-consuming bargaining process with various agencies negotiating its content.
Second, if they are issued without proper legal authority, executive orders can be overturned by the courts – although that happens infrequently.
Trump’s travel ban faced several legal challenges before it was written in a way to satisfy the court. Many of his initial orders, on the other hand, didn’t face legal scrutiny because they simply requested agencies to work within their existing authority to change important policies like health care and immigration.
Congress is another barrier, as they give presidents the legal authority to make policy in a certain area. By withholding that authority, Congress can deter presidents from issuing executive orders on certain issues. If the president issues the order anyway, the courts can overturn it.
Legislators can also punish presidents for issuing executive orders they do not like by sabotaging their legislative agendas and nominees or defunding their programs.
Even a polarized Congress can find ways to sanction a president for an executive order they don’t like. For example, a committee can hold an oversight hearing or launch an investigation – both of which can decrease a president’s public approval rating.
Congresses of today are equipped to impose these constraints and they do so more often on ideologically opposed administrations. This is why scholars find modern presidents issue fewer executive orders under divided government, contrary to popular media narratives that present executive orders as a president’s way of circumventing Congress.
Finally, executive orders are not the last word in policy. They can be easily revoked.
New presidents often reverse previous orders, particularly those of political opponents. Biden, for instance, quickly revoked Trump’s directives that excluded undocumented immigrants from the U.S. Census.
All recent presidents have issued revocations, especially in their first year. They face barriers in doing so, however, including public opinion, Congress and legal limitations.
Regardless, executive orders are not as durable as laws or regulations.

What will change for executive orders in a post-Trump era? I wouldn’t expect much.
As he promised, Biden has already revoked numerous Trump executive orders and issued new ones on some big agenda items. He’ll likely issue more: for example, to tackle racial injustice and student debt.
Other policies, like an economic stimulus, will require legislation since Congress holds the purse strings.
Though Biden inherits a Democratic House and Senate, their majorities are marginal, and moderate party dissenters may frustrate his agenda. Even so, he will undoubtedly use all available legal authority to unilaterally transform his goals into government policy.
But then again, these directives may be undone by the next president with the stroke of a pen.
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Liberals in Congress and the White House have faced a conservative Supreme Court before

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Visiting Teaching Assistant Professor of Political Science, University of Denver
Lucy Cane does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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With control of the White House and both houses of Congress, Democrats are looking to make major changes in government initiatives – including on climate change, immigration and education.
But many of those ideas may end up in court – where they will face a Supreme Court dominated by conservatives.
Donald Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett make the Supreme Court more conservative than it has been at any time since the 1930s, when Franklin Delano Roosevelt was president. Many court watchers expect that the current court’s decisions will lean much further to the right than Congress, the president and public opinion do.
Fearing a clash between the branches, some have even suggested that President Joe Biden consider adding justices to the court – as Roosevelt considered but ultimately didn’t pursue – to prevent key legislation from being struck down.
As scholars of U.S. legal history know, the court is often less insulated from politics than many people assume. Roosevelt’s threat to pack the courts, and what happened next, illustrate the pressures the Supreme Court faces to limit how far it strays from the other branches and from public opinion.
Most Americans today are not accustomed to a right-leaning Supreme Court. Instead, they have viewed the judicial branch as a reliable – or lamentable – champion of liberal values. That dates back to the 1950s and 1960s, when the court, led by Chief Justice Earl Warren, made a series of landmark liberal rulings generally expanding civil rights on issues from school desegregation to criminal defendants’ rights.
But the liberalism of the Warren court was itself a major shift.
From the late 19th century through to the 1930s, federal courts, including the Supreme Court, were generally considered to be the most conservative branch of the federal government, especially on economic issues. The courts championed limited government and broad freedom for corporations.
That period of pro-business jurisprudence came to be known among legal scholars as the “Lochner era,” named for the 1905 case of Lochner v. New York.
In that case, the Supreme Court struck down a New York law that, to protect employees, had regulated working conditions in bakeries. The majority of the justices held that the law violated bakeshop owners’ liberty to contract with their employees as they wished.
The court also continued to limit Congress’ power to regulate interstate commerce to a narrow range of economic activity that excluded most manufacturing and services.
In 1933, Roosevelt came to power with a strong mandate to tackle the Great Depression. He quickly established several new government agencies, reformed financial regulations and sought to regulate business in unprecedented ways.
The National Industrial Recovery Act, for instance, called for industrywide codes of fair competition that set minimum wages, prices, maximum working hours, production quotas and regulations for the process of selling goods. Although Congress saw the need for such a transformative piece of legislation, it was challenged in the courts by a poultry company that had been charged with violating a new code governing the poultry industry. Schechter Poultry’s violations included selling chickens on an individual basis and selling them to nonlicensed purchasers. The right-wing majority on the Supreme Court ruled in favor of Schechter and struck down key parts of the NIRA, drawing in part on its restrictive understanding of the commerce clause.
In this and other cases during Roosevelt’s first term, the Supreme Court demonstrated a growing divergence from the other branches and public opinion. The public had expressed its hunger for strong and far-reaching economic legislation by electing New Deal Democrats to Congress and the presidency. But unelected lifetime appointees on the court held onto a more conservative understanding of the scope of governmental power.
When Roosevelt was reelected in a landslide in 1936, he proposed a bill to reform the federal judiciary in an attempt to stop the Supreme Court’s obstruction of his policy initiatives.
This bill included what became known as his “court-packing plan,” which would have potentially allowed Roosevelt to appoint six more justices, tilting the majority in his favor.
The Constitution doesn’t prohibit expanding the court, but even Roosevelt’s supporters were wary, so the eventual bill was passed without that provision.
As the bill was being debated in Congress, court-packing became less urgent to Roosevelt and his supporters because a change occurred within the Supreme Court itself. Nobody died, but someone switched sides. Associate Justice Owen Roberts had previously voted with the right-wing opponents to the New Deal, but in 1937 he joined the more liberal justices to uphold a minimum-wage law in the state of Washington.
From that point on, the court expanded its interpretation of the commerce clause to give Congress much broader powers to regulate the economy.
Some commentators claim that Justice Owen Roberts shifted his opinion in direct response to Roosevelt’s threat to pack the Supreme Court, seeking to avoid executive and congressional interference in the judicial branch and therefore preserve its apparent independence.
But Owen Roberts actually had decided his position in that case before Roosevelt publicly proposed the judicial reform bill.
Perhaps Owen Roberts already suspected that a court-packing plan, or something like it, was on the horizon when he decided to shift his position. But he might have been sufficiently concerned about the court’s departure from public opinion and the other branches even without such a threat.
When the court diverges drastically from the political mainstream, the public views it as less legitimate. That is an outcome Supreme Court justices are usually eager to avoid.
There are perhaps more differences than similarities between Roosevelt’s confrontation with the court and the relationship between the Biden administration and the court today. For one thing, this court has not had a decadeslong rightward slant. Biden’s record is also as a centrist, and with a narrow majority in the Senate and a divided American public, he may not seek as transformative an agenda as Roosevelt did.
But the lesson from the 1930s remains: It is difficult for the Supreme Court to sustain a drastic divergence from other branches or public opinion without its legitimacy coming into question. To maintain the reputation of the institution, Supreme Court justices often limit their own divergence from the political mainstream, whether or not the other branches explicitly threaten to interfere.
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Impeachment trial: Research spanning decades shows language can incite violence

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Assistant Professor of Public Communication, American University School of Communication
Kurt Braddock receives funding from The U.S. Department of Homeland Security to perform research on disinformation and right-wing violent extremism.


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Senators, acting in the impeachment trial of former President Donald Trump that begins on Feb. 9, will soon have to decide whether to convict the former president for inciting a deadly, violent insurrection at the Capitol building on Jan. 6.
A majority of House members, including 10 Republicans, took the first step in the two-step impeachment process in January. They voted to impeach Trump, for “incitement of insurrection.” Their resolution states that he “willfully made statements that, in context, encourage – and foreseeably resulted in – lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore.’”
Impeachment proceedings that consider incitement to insurrection are rare in American history. Yet dozens of legislators – including some Republicans – say that Trump’s actions leading up to the Jan. 6 attack on the Capitol contributed to an attempted insurrection against American democracy itself.
Such claims against Trump are complicated. Rather than wage direct war against sitting U.S. representatives, Trump is accused of using language to motivate others to do so. Some have countered that the connection between President Trump’s words and the violence of Jan. 6 is too tenuous, too abstract, too indirect to be considered viable.
However, decades of research on social influence, persuasion and psychology show that the messages that people encounter heavily influence their decisions to engage in certain behaviors.
The research shows that the messages people consume affect their behaviors in three ways.
First, when a person encounters a message that advocates a behavior, that person is likely to believe that the behavior will have positive results. This is particularly true if the speaker of that message is liked or trusted by the target of the message.
Second, when these messages communicate positive beliefs or attitudes about a behavior – as when our friends told us that smoking was “cool” when we were teenagers – message targets come to believe that those they care about would approve of their engaging in the behavior or would engage in the behavior themselves.
Finally, when those messages contain language that highlights the target’s ability to perform a behavior, as when a president tells raucous supporters that they have the power to overturn an election, they develop the belief that they can actually carry out that behavior.
Consider something we have all encountered in a more lighthearted context – messages designed to motivate exercise. These messages often tell us one (or more) of three things. They tell us that exercise will lead to positive outcomes – “You will get physically fit!” They tell us that others exercise or would approve of our taking part in exercise – “Work out with a friend!” And they tell us that it is within our power to begin an exercise program – “Anybody can do it!”
In this context, these messages are likely to increase the message target’s likelihood of exercising.
Unfortunately, as we saw on Jan. 6, these principles of persuasion apply to less benign behaviors as well.
Now let us return to what happened in Washington on Jan. 6.
Even in the weeks before the election, Trump’s rhetoric was belligerent. His campaign solicited supporters to “enlist” in the “Army for Trump” to help reelect him. Following the election and in the lead-up to the attack on the Capitol, President Trump made repeated false claims of election fraud, arguing that something needed to be done to remedy the alleged fraud. His language often took an aggressive tone, suggesting that his supporters must “fight” to preserve the integrity of the election.
By inundating his supporters with these lies, Trump made two key beliefs acceptable to his followers. First, that aggression against those accused of trying to undermine his “victory” is an acceptable and useful means of political action. Second, that aggressive, possibly violent attitudes against Trump’s political adversaries are common among all his supporters.
In the weeks following the election, allies of President Trump, including Rudy Giuliani, Republican U.S. Rep. Matt Gaetz, GOP Sens. Ted Cruz and Josh Hawley and others, only reinforced these beliefs among Trump supporters by perpetuating his lies.
With these beliefs and attitudes in place, Trump’s Jan. 6 speech outside the White House served as a key accelerant to the attack by sparking the raucous crowd to action.
In his pre-attack speech, Trump said that he and his followers should “fight like hell” against “bad people.” He said that they would “walk down Pennsylvania Avenue” to give Republican legislators the boldness they need to “take back the country.” He said that “this is a time for strength” and that the crowd was beholden to “very different rules” than would normally be called for.
Less than two hours after these words were spoken, violent insurrectionists and domestic terrorists breached the Capitol.
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In the case of Donald Trump, the relationship between words and actions never seems clear. But make no mistake, there is a scientifically valid case for incitement.
Decades of research have demonstrated that language affects our behaviors – words have consequences. And when those words champion aggression, make violence acceptable and embolden audiences to action, incidents like the insurrection at the Capitol are the result.
This is an updated version of an article originally published on Jan. 12, 2021.
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Talking politics in 2021: Lessons on humility and truth-seeking from Benjamin Franklin

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Executive Vice Chancellor for Academic Affairs, Indiana University
Mark Canada does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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The previous year in the United States was a turbulent one, filled with political strife, protests over racism and a devastating pandemic. Underlying all three has been a pervasive political polarization, made worse by a breakdown in civic – and civil – discourse, not only on Capitol Hill, but around the nation.
In a new year, with a new president and a new Congress, there appears to be opportunity. Americans, starting with the president, are talking about turning away from the division of the recent past and choosing a different direction: talking civilly and productively about the problems the country faces.
But how to do that? As a literary scholar, I appreciate the power of carefully crafted language, and I believe that Americans – from those in government to those around the dinner table – could take a lesson from one of this nation’s founders and greatest communicators: Benjamin Franklin.
Before he achieved fame as a statesman, scientist and diplomat, Franklin, who was born in 1706 and died in 1790, made his living in Philadelphia from words – as a printer, journalist and essayist.
Having worked early in his life in Boston for his brother James, a fiery journalist, he knew the kind of war that could be waged with words and had even made a hobby of debating with a young friend.
“We sometimes disputed,” Franklin recalled in his autobiography, “and very fond we were of Argument, & very desirous of confuting one another.”
Everything changed for Franklin, however, after he came across some examples of Socratic dialogue, in which questions figure prominently. “I was charm’d with it,” Franklin wrote, “adopted it, dropt my abrupt Contradiction, and positive Argumentation, and put on the humble Enquirer & Doubter.”
The inspired Franklin eventually changed his entire manner of discourse, communicating “in terms of modest Diffidence” instead of positive assertion, dropping words such as “certainly” and “undoubtedly” and substituting “I should think it so or so” and “it is so, if I am not mistaken.”
After all, Franklin wrote, “a positive, assuming manner” tends to turn off an audience and thus undermines one’s own intentions.
Such positive assertion can interfere with the exchange of valuable information. “If you wish information and improvement from the knowledge of others,” Franklin wrote, “and yet at the same time express yourself as firmly fix’d in your present opinions, modest, sensible men, who do not love disputation, will probably leave you undisturbed in the possession of your error.”
In 2021, replacing positive assertions in conversations with some “terms of modest Diffidence” just might lead to exchanges that are not only more civil, but also more productive.
More important than modest expression is actual intellectual humility, and here again Franklin’s example is instructive. Even before he turned his inquiring mind to groundbreaking discoveries in electricity, he showed a scientist’s dedication to open, objective investigation with only truth as its object.
In 1727, when he was still in his early 20s, he founded a group called the Junto. Members, including a number of tradesmen like Franklin, took up political, philosophical and other questions such as “Does the Importation of Servants increase or advance the Wealth of our Country?” and “Wherein consists the Happiness of a rational Creature?”
The goal of these discussions, as Franklin explained, was not victory – as it apparently had been for Franklin and his friend years earlier – but something far more valuable for all concerned. Franklin explained that the discussions were to take place “in the sincere Spirit of Enquiry after Truth, without fondness for Dispute, or Desire of Victory.” Anyone who spoke too confidently or contentiously had to pay a small fine.
This preference for pursuing truth over seeking victory found expression in a question that initiates were required to answer: “Do you love and pursue truth for its own sake?” Franklin did, and the results speak for themselves.
Franklin also had a prescient understanding of biases that color humans’ understanding of reality.
Today, scientists have shown that people are susceptible to mere exposure effect, a preference for information we have encountered multiple times and confirmation bias, an inclination toward information that aligns with a person’s current beliefs. In an essay he published in the 1730s, Franklin wrote of the effect of “Prevailing Opinions” on the individual mind and observed, “A Man can hardly forbear wishing those Things to be true and right, which he apprehends would be for his Conveniency to find so.” He added, “That Man only, who is ready to change his Mind upon proper Conviction, is in the Way to come at the Knowledge of Truth.”
Franklin lived up to this principle. In 1751, he published an essay expressing reprehensible, racist views that were all too common in his era. Years later, however, he helped found schools to educate black children and, after visiting one, saw that the students were equal to white children in their ability to learn.
He wound up changing not only his mind but also his essay when he reprinted it almost two decades later, changing the passage that said that most slaves were thieves “by Nature” to say that they were thieves because of slavery.
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Near the end of his life, Franklin became president of the Pennsylvania Society for Promoting the Abolition of Slavery and submitted to Congress a petition to abolish slavery and end the slave trade.
At the Constitutional Convention of 1787, Franklin expressed his belief in intellectual humility. As James Madison recorded his words, Franklin said, “For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.”
“It is therefore that the older I grow,” he added, “the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.”
Near the end of the speech, he implored others to adopt this same humility: “On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”
As these words and experience testify, political polarization and dispute are nothing new. But Franklin managed to rise above the discord, biases and close-mindedness that are common in any era.
He spoke and wrote in ways that, if taken up now, could begin to erode the polarization of the current era: with modesty, diffidence, sincere consideration of others’ positions, doubt in his own infallibility and love of truth for its own sake.
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