When, why, and how does an American president execute an executive order?
John Egelkrout wrote an article expressing his bewilderment:
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I never paid much attention to executive orders until President Obama. I was under the impression that there were some constitutional restrictions to an American president using them, and Obama was perhaps stepping over those restrictions. But I also thought Obama was someone who would vet his ideas with people around him before issuing the order.
Of course, Trump 1, Biden, and Trump 2 governed a lot by executive order. But if this tool is to move political issues though a dysfunctional congress, then what is the purpose of congress?
I did a little study of Franklin Roosevelt. It seems his New Deal was constructed more by executive order than by votes in Congress. From what I can understand, executive orders are more restricted by political culture than by legislation around executive orders. In other words, American presidents can issue executive orders if they think they can get away with it. FDR had the support of the people to make the New Deal happen — and he used that support to behave kind of like a dictator.
The Canadian Executive Order
On March 9, the Liberal Party of Canada elected a new leader. Although Mark Carney had great experience in government, he had never served in Canadian Parliament. The polls said his party was heading for electoral defeat.
Yet he immediately made two “executive orders” after winning the leadership of the Liberal Party. First, he repealed the Carbon Tax legislation. Second, he reduced the tax rate for the middle class. Now, he could have promised to do these things after he won the election. But he used his powers to “make it so” immediately. While these two acts probably sealed his narrow victory, his success was more tied to Mr. Trump’s help.
After many years of being a Canadian political observer, I already know the 50 or so unelected people working in the Prime Minister’s Office (PMO) have more political power to shape things than the 100 or so elected back-bench MPs on the government side. To me, the proper way to rescind the Carbon Tax and reduce individual taxes is through the same mechanism that brought these features into law: an Act of Parliament. It seems the PMO can bypass Parliament.
John Egelkrout is confused about what constitutes a legal executive order. I am confused about the real power of the Canadian PMO. We both thought we understood the systems that govern us. But it seems not.
Executive Function in the Tiered Democratic Governance (TDG)
There is no president or prime minister in the TDG.
The top tier of any TDG will be composed of six to 15 individuals who have earned their position by good character and capacity for governance, tier-by-tier. They will be working with a consultative approach to decision making, bringing different perspectives together. This institution will be providing the directives for society.
While the top TDG tier members will be working fulltime on their political jobs, they may not always be available to meet. They need their vacations. They may have family or health issues. And they do need to travel out of the capital city to have a first-hand interaction with the people they govern.
So situations may arise that require a quick resolution from the top tier but the full top tier is not available. Here’s how I would design the emergency executive committee (EEC).
At all times, there must be three top tier members available in the capital city. They shall constitute the emergency executive committee (EEC). They will be on call 24 hours a day, 7 days a week. This will be a rotating position; a schedule should delineate which three members of the top tier have emergency powers at any time.
A fourth member should also be on stand-by, in case one of the three designated members cannot serve in an emergency.
When an emergency situation happens, these three EEC members will meet. Other attendees could include the fourth member, a senior member of the TDG advisory board, and senior managers of the relevant government departments. This group will discuss the situation. This group will review relevant policies that have been put in place. But it is only the three designated members who have the vote. Hopefully the three will find consensus. If not, a majority of two out of three shall decide.
In some cases, the EEC may defer action until the full top tier can convene. In other words, the situation is not a big emergency.
In many cases, the EEC will mostly be overseers of what the appropriate government department wants to do. I think there is value for the department to justify its actions to a sound authority. Sometimes, the EEC might offer some guidance to that department.
In other cases, there might be competing government departments with different suggestions. The EEC might decide one department over the other.
In a few cases, the EEC might decide to manage the crisis directly.
The EEC can reverse its decision a few hours or days later. Sometimes, the nature of the emergency changes or new information can change the outlook.
And when the full top tier does convene, it can reverse the EEC decision. A reversal should not be regarded as the EEC as being incompetent. Rather the committee was faced with an emergency, and difficult decisions had to be made quickly. Most people would understand a better decision was more likely with the full top tier, but the top tier sometimes cannot provide a timely directive.
The Middle TDG
Before the TDG assumes responsibility and authority for governance, it will go through four distinct stages. The second stage — the Middle TDG — is when the TDG should look at implementing constitutional procedures for emergency decision making. It will put in the clauses that delineate how an emergency is to be handled.
While this article provides a reasonable structure for a EEC, its wording should be fine-tuned. That fine-tuning will require some constitutional thought and writing. I will leave that writing to the local TDGs.
And there might be other ways to construct this committee.
When the Middle TDG moves into the Maturing TDG, its emergency rules should have been tested a few times — and improved.
Credibility
While I believe TDG decisions will be much better and more acceptable than decisions from western democracy, these decisions will not get universal approval from the citizenry. Decisions in emergencies are likely to generate more dissatisfaction.
Amateur political pundits like John and I will not always agree with the decisions from TDG governance. But we can look at the rules to see if they were followed properly. If we can see that three top tier representatives — Peter, Paul, and Mary — were scheduled to serve on the EEC and they handled the emergency, we can’t say their decisions were arbitrary.
Right now, USA’s executive orders look arbitrary to John. Decisions from the PMO look arbitrary to me. We really have no idea whether due legal process was followed to make those decisions.
Maybe the rules are too complex for amateur political pundits to understand. So the political scientists would tell John and I the rules were properly followed and we should just accept their position. But something tells me that the rules are loose — and subject to interpretation and manipulation. And loose rules bring distrust that the system does not work for the people (or some of the people), thus eroding the credibility of government.
I recommend that the TDG constitution provide simple unambiguous rules for making emergency decisions. Who gets to make the decisions? What checks-and-balances should they run through?
When people like John and I wonder about emergency decisions we may or may not like, we shouldn’t need a constitutional lawyer to tell us that the rules were followed properly. Keeping this process simple provides credibility to the decision. These decision makers were tasked to make a decision; here are the rules they had to follow; we citizens can see they followed the rules.
Credibility Part 2
I will provide another angle to show how decisions from TDG governance is more credible.
My experience in Canadian politics is that about half of Canadian elected representatives had accomplished great things before they entered politics. They were well regarded by their peers in their profession. The other half were partisan workers who spent much of their early life in the lower levels of politics; they did not accomplish much outside of politics. Rather they learned the ropes to climb higher and seized the opportunities that became available to them.
Now don’t get me wrong here. Some competent non-political people do not do well in politics. And some partisans are competent in their political rise. But western democracy is not much of a test to prove the political mettle or not — until elected representatives actually get the job of being an elected representative. Western democracy has had its share of turkeys being in government.
TDG representatives — on the other hand — have proven their abilities as they rose tier-by-tier in the TDG. They don’t get to the top tier of the TDG unless they have proven their skills in the lower levels of TDG governance.
So when the top tier allocates emergency powers to three of its members, those three members will have the skills in place to handle emergencies — in a TDG way. Not only did these members follow the rules, they proved their competence beforehand, they listened to experts, they discussed multiple options; they made their decision with more resources information than outside people had.
In other words, there won’t be any foolish decisions in the TDG emergency executive committee.
Conclusion
Like the rest of the TDG, the EEC won’t have partisan considerations to affect its decision. The members of this committee can focus on what is best for the emergency, not what is acceptable to the backrooms of the political party.
However the emergency executive function is constructed, the TDG constitution should be unequivocal as to who has the authority and responsibility to make this emergency decision.
John and I still might not like that decision. But we cannot complain that the rules were arbitrary. We will let the decision play out to its natural outcome. We believe if the decision is wrong, the top TDG tier will eventually see the mistake — and fix it.
But most of the time, the decision will be sound.
Because the structure behind that decision is sound.
Published on Medium 2025
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