Executive orders have been controversial since the founding of the republic. They have long given rise to complaints from members of Congress that they infringe on its legislative power. But at the same time, it is obvious that legislative language cannot contemplate all of the means by which the laws are to be enforced; some executive latitude is clearly necessary.
Conflicts between Congress and the White House on executive orders tend to be greatest when each is under control of a different party. I can find no evidence that the Republican-controlled Congresses of the 1920s objected to the 1,203 executive orders issued by Calvin Coolidge, nor did the Democratic Congresses of the 1930s complain about Franklin D. Roosevelt’s 3,522 executive orders.
President Obama has issued 168 executive orders and at this rate probably will issue fewer during his two terms than George W. Bush, who issued 291.
The modern history of congressional concern about executive overreach begins with Richard Nixon. His Executive Order 11615 on Aug. 15, 1971, was among the most expansive in history, freezing all wages and prices in order to control inflation.
While Nixon’s action was controversial, the controversy was mainly regarding the efficacy of wage and price controls to deal with inflation. There was little criticism, even from Democratic members of Congress, as to his legal authority.
What really got Congress upset about Nixon’s usurping its power was the almost forgotten issue of “impoundment.” This refers to the long-exercised presidential practice of not spending funds appropriated by Congress when the president deemed the expenditure to be unnecessary or ill advised.
For example, in his State of the Union address in 1803, Thomas Jefferson informed Congress that he would not spend $50,000 (about $1.7 billion today) it had appropriated for gunboats on the Mississippi, thinking them unnecessary. (Please note that here and in all subsequent conversions of dollar sums to comparable value today, I do not rely on the change in the consumer price index but rather on a calculation of value at the time relative to the total output of the economy. I have been guided in this by the methodologies proposed by the founders of Measuring Worth.)
According to a 1974 law review article by the legal scholar Nile Stanton, “Every president from George Washington to Richard Nixon has almost certainly impounded appropriated funds.”
Congressional complaints about Nixon’s impoundment of appropriated funds began in 1971, when he withheld $13 billion (about $180 billion today). This was not his first use of impoundment, but the size of this action got the attention of conservatives in Congress who normally supported cuts in domestic spending.
Senator Sam J. Ervin Jr., Democrat of North Carolina, said impoundment “poses a threat to our system of government and patently violates the separation of powers doctrine.”
The following year, Nixon angered many Republicans when he impounded $202 million ($2.6 billion today) for food stamps, 10 percent of its budget. Senator Clifford Case, Republican of New Jersey, was especially upset that the White House never announced the impoundment, and efforts to find out who actually ordered the cut were stymied by the Agriculture Department’s bureaucracy.
After the 1972 election, the impoundment controversy heated up. On Jan. 6, 1973, the Senate voted to demand an accounting of impounded funds no later than Feb. 5. On that day, the Office of Management and Budget issued a list of $8.7 billion ($100 billion today) in impoundments across more than a dozen departments and agencies. Democrats complained that the list understated the true amount of impoundments, which they pegged at $12.2 billion ($140 billion today).
In an editorial, The New York Times said that while it was true that previous presidents had impounded appropriated funds, they did so only in isolated and temporary circumstances. By contrast, Nixon was asserting this power “across the board and as a permanent weapon in his constitutional arsenal.”
In a series of articles beginning on March 4, 1973, The New York Times reported that growing numbers of constitutional scholars viewed Nixon’s actions as an unprecedented expansion of executive power. It quoted the political scientist Thomas E. Cronin as saying of Nixon, “He has systematically gone about trying to strengthen the presidency in a great number of ways, frequently by circumventing the Constitution or expanding on past practices that were ambiguous or questionable.”
It is possible that Nixon would have prevailed on the impoundment issue if the debate had been limited to the narrow question of whether the president could withhold funds appropriated by Congress. But the impoundment issue quickly became conflated with Watergate when that investigation blew open on March 23, as James W. McCord Jr., who had been convicted in the burglary of the Democratic headquarters in 1972, said he and other defendants had been under “political pressure” to plead guilty and remain silent.
From that point forward, the Watergate scandal enveloped the White House until Nixon was forced to resign the presidency on Aug. 8, 1974. One of Nixon’s last acts as president was to sign, on July 12, 1974, the Congressional Budget and Impoundment Control Act of 1974, which permanently stripped the president of impoundment authority. Under ordinary circumstances, he would almost certainly have vetoed it. But in his weakened political position, Nixon had little choice since it undoubtedly would have been overridden by Congress.
I will have more to say about the long-term consequences of the Congressional Budget Act of 1974 in a future post.
Another long-term effect on the presidency in the struggle over Watergate, impoundment and presidential power is the deep impact it had on many Republicans who lived through it. In particular, Donald H. Rumsfeld and Dick Cheney, both of whom served President Ford as White House chief of staff, came away believing that the presidency had been hobbled by Congress and the president had been denied powers rightfully given to him by the Constitution. Another Ford administration official who shared this view was Antonin Scalia, now a Supreme Court justice, who then headed the Office of Legal Counsel at the Justice Department.
When, under President George W. Bush, Mr. Cheney and Mr. Rumsfeld occupied high-level positions, as vice president and as secretary of defense, they consciously sought to restore the president’s power that had been surrendered by Nixon. They were highly successful, bequeathing to President Obama a significantly strengthened presidency, which Republicans now berate Obama for using.
Bruce Bartlett held senior policy roles in the Reagan and George H.W. Bush administrations and served on the staffs of Representatives Jack Kemp and Ron Paul. He is the author of “The Benefit and the Burden: Tax Reform — Why We Need It and What It Will Take.”