Executive Orders & Filibusters: The Constitutional Downsides

Gary J. Schmitt is a Resident Scholar in Strategic Studies and American Institutions at American Enterprise Institute.

Executive orders and Senate filibusters are both tools of governance—traditionally thought of as addendums to the toolbox available to the president and senators respectively.  But what is their impact on the constitutional order and the public’s perception of that order when their use becomes more a norm than an exception?  

To be clear, neither executive orders nor Senate filibusters are unconstitutional.  Executive orders flow from the fact that the president is vested with “the executive power” and given the responsibility to administer the federal government’s laws “faithfully.”  And while the filibuster is not found in the Constitution, the Constitution gives each house of Congress the authority to set its own “Rules of Proceedings” and the possibility of a filibuster has been part of Senate rules since the early 1800s.  But, again, the issue is not their specific legitimacy but the impact each has on our governing institutions and the system’s overall legitimacy when increasingly employed.

In President Biden’s first week in office, he issued 24 executive orders according to the Federal Register and 29 since becoming president.  This is a rather striking total when compared with the first week of prior presidents.  Presidents Trump and Obama each signed 5 executive orders, while Presidents Bush and Clinton issued none. On top of which, the new president has signed numerous memorandums directing executive branch entities on how they are to carry out—or not—existing plans and policies.  We don’t know if this rush to use executive orders will continue or begin to flatten out.  But even if the latter, it is now the regular practice of presidents to issue hundreds of executive orders during their term in office and do so on many high-profile policy matters.

Again, while some executive orders might be challenged in the courts and put on hold, the broad use of executive orders by presidents reflects Congress’ expansion of the reach of the federal government in American life. Statutes expanding the administrative state necessarily increase the chief executive’s power and discretion.  Nonetheless, despite statutory authorization, this takes on the appearance of rule by presidential fiat.  For those who voted for the president, they see their candidate acting to implement their mandate to him; for the inevitable millions who didn’t, they see a chief executive unbounded.  In both cases, important and often divisive issues are being settled without the clear sanction of the First Branch of the federal government.   As President Obama once put it, “I’ve got a pen, and I’ve got a phone” and I am “going to act on my own if Congress is deadlocked.”  

An even more startling trend is connected to filibusters—or, more accurately, Senate votes taken to end debate (by “cloture”—French for terminating), requiring the agreement of 60 senators.  Since the late 1960s, the number has skyrocketed, jumping from just a few cloture motions a year to nearly 300 cloture votes in the last session of Congress. Usually, senators agree to end debate with the required 3/5th majority, although not always.  Moreover, even when cloture is successful, precious Senate time is still taken up with ending the debate at the expense of substantive deliberation.  And, more to the point, these totals on cloture do not capture how the threat of filibusters shuts down many measures lacking the necessary 3/5th support before any formal consideration.  

Supporters of filibuster’s high threshold to end debate argue that the Senate rule tempers the House’s rash majoritarianism and ensures a broader national consensus on important legislative matters.  At a time of high political polarization, it is said to incentivize working across the aisle to get laws passed.  And there seems to be some evidence that this is the case.

Critics on the other hand most often argue that the filibuster frustrates the majority’s will and that the Constitution already contains sufficient checks against majoritarianism with bicameralism, judicial review, and separation of powers. Again, there is some truth to their point.

What both supporters and critics alike lack is a vision of the Senate as a deliberative body and senators as legislators.  The current threat of filibusters results in less actual floor debate and, in turn, less negotiation and compromise driven by actual deliberation. Instead, the majority and minority leadership tend to treat senators as simply votes to be counted one way or another on a proposed measure. Instead of refining the majority view as Madison and others intended, the filibuster threat reinforces the current political polarization by turning the parties’ calculation to short term political self-interest.

And by pushing decisions on legislative consideration to the leadership in both parties, the threat of filibuster and the requirement for cloture has weakened senate committees where the initial work of fact-finding, debate, and legislative deliberation starts. This is most obvious in the case of the appropriation committees whose work now rarely makes it to the Senate floor as stand-alone bills. Instead, appropriations are dumped into massive omnibus acts that, again, are so massive and, typically, so last minute that there is no ability and little inclination for senators to debate their content.

The work-around now being considered is stuffing the budget reconciliation measure—which is exempt from the 60-vote cloture rule—with policy provisions that have little or nothing to do with, as originally intended by the Budget Act of 1974, taxes or mandatory spending.  All that stands in the way of this happening is a Senate Parliamentarian’s backbone and how clumsy the bill’s writers are in kludging together the various apples and oranges that could end up in the bill.

More importantly, this reliance on reconciliation, along with the current use of executive orders and filibuster threats, promotes a public perception of our government far afield from the “regular” constitutional order laid out in government or civics texts.  It’s of course true that no constitutional order can ignore the pressures of actual political life and must, as best it can, accommodate itself to those pressures.  But there comes a point where the bending can begin to look like a break from that order.  And, as we have learned in recent months, cynicism towards the operation of the system can erode its very legitimacy.  In fine, presidents and senators would do well to think not only about how the tools and rules they have at their disposal promote policy and political agendas but also how their use (or, rather abuse) may affect the larger public’s attachment to the constitutional order itself.   

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