The Executive Order is an oft used tool by the President to set and establish policy and law for the country while getting around the will of Congress, the courts and the people simply by declaring it. The outcomes are usually fait accompli because Congress must vote to undo an executive order or it remains in effect until a future President rescinds it. This is a very powerful tool as exercised today, but the Constitution doesn't really intend the President to have this kind of power. The executive order constitutionally is meant to allow the President to "issue orders in pursuit of constitutional objectives or, exercising powers that the Constitution assigns to them."1 So, this means a President can use this power to issue pardons or give orders to carry out anything that Congress has passed legislation that gave him the authority to control. I submit with each President, this power becomes more and more a power for the President to set policy regardless of Congress rather than using it to carry out Congressionally mandated activities, as the Constitution intended.
So, lets see, just for fun, if there is a correlation between how often a President uses this power and how far removed we are from the Constitution. While earlier Presidents did issue directives which we'd call executive orders today, the term executive order did not come into use until 1862 under Lincoln.
2George Washington - 8
John Adams - 1
Thomas Jefferson - 4
James Madison - 1
James Monroe - 1
John Quincy Adams - 3
Andrew Jackson - 12
Martin Van Buren - 10
William Henry Harrison - 0
John Tyler - 17
James K. Polk - 18
Zachary Taylor - 5
Millard Filmore - 12
Franklin Pierce - 35
James Buchanan - 16
Abraham Lincoln - 114
Andrew Johnson - 79
Ulysses S. Grant - 217
Rutherford B. Hayes - 92
James A Garfield - 6
Chester A. Arthur - 96
Grover Cleveland - 113 (1st term)
Benjamin Harrison - 143
Grover Cleveland - 140 (2nd term)
William McKinley - 185
Theodore Roosevelt - 1081
William Howard Taft - 724
Woodrow Wilson - 1803
Warren G. Harding - 522
Calvin Coolidge - 1203
Herbert Hoover - 968
Franklin Delano Roosevelt - 3522
Harry S. Truman - 907
Dwight D. Eisenhower - 484
John F. Kennedy - 214
Lyndon B. Johnson - 325
Richard Nixon - 346
Gerald Ford - 169
Jimmy Carter - 320
Ronald Reagan - 381
George Bush - 166
William J. Clinton - 364
George W. Bush - 291
Barack Obama - 109 (through 3 years)
WHAT HAPPENED! It seems that the turn of the century changed the whole thing. Starting with Theodore Roosevelt, the executive order power seems to expand significantly. Before Teddy, only Grant had used it more than 200 times and his was considered one of the most corrupt administrations in history. Teddy used it 1000+ times, Taft, Wilson, Coolidge, Hoover, Roosevelt and Truman all had significant use of the executive order, most of them near or over 1000 times. This happened primarily during the Progressive era and the Great Depression. Progressives would obviously feel held back and limited by the constraints of the Constitution and so it seems may have just ignored it (there are several court case examples of this). FDR actually has the excuse of World War II for the significant use of the executive order, but surely not ALL of the exorbitant use (the only President to issue more than 2000 EO) on his part was due to the war. After all, it was after FDR's death that Congress passed an amendment to the Constitution that limited a President to only two terms. Did Congress perhaps feel their power subverted to some degree by a popular and powerful President?
A strange thing followed the years after Truman. Executive orders calmed down to a more stable area in the 100-300 range. They never did get down to the levels before the 20th century, but they did decrease significantly following FDR and Truman. This coincides with the end of the Progressive era as well and the emergence of the Cold War. Even during Korea and Vietnam, executive orders did not spike back up to the level used by the Progressive era Presidents. Still, there have been examples by almost all 20th century Presidents of using the executive power illegally or simply to expand the power of the President, going way outside the boundaries placed on the executive branch by the Constitution.
1. Woods, Thomas E., Jr. "Who Killed the Constitution" p. 186.
2. The executive order totals for Presidents comes from the American Presidency Project website.
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