Executive orders undermine democracy by bypassing checks and limiting

transparency.
Yates ND Heather E. Yates is an Associate Professor, University of Central Arkansas. Presidential
Unilateralism Undermines Democracy. Bill of Rights Institute,
https://billofrightsinstitute.org/essays/presidential-unilateralism-undermines-democracy// DOA:
05/19/25 BJ

When it comes to presidential power, the Constitution’s ambiguity creates tension around questions about executive actions. The
vaguely
outlined office in Article II constructs circumstances in which presidential actions undermine the
Madisonian vision of balanced power and checked ambition between the branches of government.
However, historians and legal scholars have agreed that the scope of presidential power has the most flexibility in the domain of war powers
and foreign policy. Article II stipulates that the president’s duties as Commander in Chief provide authorization for military action for defensive
purposes. Prior to the War Powers Act (1973), the Supreme Court rendered broad interpretation of the president’s prerogative power to act
unilaterally during a state of war as noted by the Prize Cases (1863). Conversely, when it comes to matters of national security, the
Constitution’s ambiguity on executive power frustrates Congress’s efforts to perform oversight. Presidents have embraced, in one form or
another, the contemporary unitary theory of the presidency, which asserts that the president possesses control and authority over the entire
executive branch. Using it to justify most unilateral action, modern presidents have transformed the constitutional blueprint of the American
presidency. Presidents
taking unilateral action on matters of national security have placed these actions
beyond the reach of congressional oversight, with detrimental effects on democracy. Presidential scholars
believe the Framers’ intentions were clear in making Congress and the president partners in the war powers. However, modern presidents have
asserted preeminence over Congress to oversee matters of national security. Presidents
have consolidated their power over
national security using the tools of prerogative, such as executive orders or presidential directives, to
both exclude and circumvent Congress. Presidential unilateralism of this variety can undermine
democracy by obscuring the government openness and transparency that promotes accountability
and open information for citizens. Congress has very little in the way of oversight on executive orders.
The only remedy available to Congress is to pass legislation that invalidates the executive order, or it can refuse funding for a presidential
initiative. On such matters of national security, presidents since Harry Truman have relied on presidential directives, which are different from
executive orders because they are directed to the National Security Council (NSC), and they are not required to be published in the federal
register or the code of federal regulations. Some directives can be classified, which restricts access to them altogether. After World War II,
Truman issued a classified national security directive that created the predecessor of the Central Intelligence Agency more than a year before
Congress passed the National Security Act of 1947 (later amended in 1949 to place the NSC within the Executive Office of the President). The
National Security Act was credited with creating the CIA and its intelligence community. In reality, it is an example of how unilateral presidential
action pulled Congress along. The NSC is an important facet of presidential unilateralism because it easily facilitates the president’s
circumvention of congressional oversight by creating a direct pipeline to the Pentagon. During the Cold War, the existence of nuclear weapons
forever altered the dynamics of global affairs. Since nuclear arsenals are weapons that could cause mass destruction, they provided an effective
deterrent to engaging in direct war. Therefore, presidents required indirect measures to combat global conflicts. As a means to avoid another
world war, but to continue to support and defend American interests abroad, President Eisenhower signed NSD no. 5412, which unilaterally
authorized the CIA to execute covert military operations, at the direction of the president, in service to national security. At what point does
presidential unilateralism undermine the principles of oversight? National
security directives like 5412 crafted a system
of secrecy inside the executive that effectively reduced Congress to nothing more than casual
advisors. By withholding information from the other branches of government, such secret unilateral actions deny knowledge to Congress
and the public, which renders independent judgment and accountability nearly impossible. As Arthur M. Schlesinger wrote in his classic book,
The Imperial Presidency: “The imperial Presidency thrived in the culture of secrecy .”
Executive secrecy conveys the notion
that national security is no one’s business but the president’s and that Congress is on a “need to
know” basis. A culture of executive secrecy, especially on matters of national security, places an overstated emphasis on the president’s
commander in chief duties and leads to what scholar Garry Wills calls the “militarization of our politics.” The militarization of presidential
politics means that the president is viewed as a permanent commander in chief, requiring unwavering loyalty from the citizenry and ultimately
members of Congress. As scholar Dana Nelson explains, “We reimagine American democracy through the lens of the military, not equalitarian
but hierarchical, a command where accountability flows only upward, not downward to the citizens.” The
unitary presidency, when
fully implemented, represents a significant shift in the balance of power between the first and second
branches of government. The extra-constitutional practices undermine democracy by virtue of
pushing the limits of the presidency beyond the scope of what the Framers intended. The Framers likely did
not imagine that a president would consolidate executive power through the use of national security directives, making Congress the weaker
branch of government. Ultimately,
presidential unilateralism has transformed United States government
into a presidential government, evading Congress and accountability, which is beyond the scope of
the Founders’ presidency and undermines our constitutional democracy.