Due to President Donald Trump’s recent and possibly most autocratic-style executive order, there will now be a new category of federal employee who can be fired at will. This classification will give the president the ability to rid himself of officials who don’t do exactly what he wants. This will apply to “career” federal positions – like Dr. Anthony Fauci – who operate in the absence of partisanship. These types of career officials serve the American people, not the president.
Many in America do not hold a favorable view of executive orders in general, and some executive orders have clashed with the fundamental principles of democracy. And while executive orders may be viewed by some as being in alignment with the workings of an authoritarian regime, there is a legal basis for presidential executive orders as defined in Article II of the U.S. Constitution. The executive branch is, after all, the part of government responsible for enforcing the law, and Article II provides the president with a very broad enforcement authority – which, ultimately, is rooted in presidential discretion.
Executive orders do, however, face scrutiny and even adjudication from the other two branches of government. The judicial branch of government can invoke judicial review of such executive action, and that action can be overturned by the Supreme Court. Once an executive order has been issued, the order will stand until it has been subject to cancellation or revocation by the succeeding chief executive.
Executive orders have been issued by every U.S. president with varying degrees. The first documented executive order that was retroactively assigned a number was President Abraham Lincoln’s Emancipation Proclamation, which freed all of the slaves in states that were engaged in open rebellion against the U.S., but the proclamation did not apply to the border states like Maryland.
By the early 1950s, as the U.S. was caught up in the Korean War, President Harry S. Truman saw the need to avoid labor disputes, and the U.S. Steelworkers Union had demanded a wage increase from U.S. steel industries. Truman’s viewpoint was that due to the involvement of the U.S. in the Korean conflict, this was no time for U.S. labor unrest, as the president wished to avert any disruption within the defense industry and the economy.
In what could have been an ironic twist, had Truman invoked an emergency provision within the anti-labor union law, the Taft-Hartley Act – which had passed over Truman’s veto – the president could have ended the strikes. Ultimately, Truman issued Executive Order 10340 to nationalize the steel industries, and following lawsuits that had been filed by the steel companies, the Supreme Court ruled that Truman had exceeded his executive power, and lacked the power to seize control of private property. And the majority opinion of the court cited that Truman acted without any specific power contained in Article II, and that the president had also acted with a lack of any statute enacted by Congress.
In the final analysis, regarding Trump’s recent executive order about reclassification of federal employees, consider the danger if nonpartisan federal decision-makers are removed every four to eight years. There is the potential of derailing any new policy initiatives if career officials are replaced by partisan appointees. Trump once spoke of “draining the swamp” in 2016, yet his recent order wreaks of distributing more water into that swamp.
Brent Been is a Tahlequah educator with an emphasis on civics and history.