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If you type “defense.gov” into a browser to check the status of America’s military might, you’ll be redirected to “war.gov.” The country’s ability to project force around the world is again under the control of the Department of War — sort of. The return to the old name was accomplished by presidential executive order and could be undone by the next White House resident. Until then, or unless a court nixes the change, the rebranding from “Defense” to “War” will continue at great expense. The Trump administration and its recent predecessors have done much of their work through decrees issued by chief executives who have little patience for the legislative process. On Sept. 5, President Trump ordered that “the Department of Defense and the Office of the Secretary of Defense may be referred to as the Department of War and the Office of the Secretary of War, respectively.” The Pentagon is now changing seals, signage, and letterhead, to comply. The odd “referred to” language in the order acknowledges that the Department of War and the Department of the Navy were rolled into the then-new Department of Defense by law in the late 1940s . It would take another act of Congress to revert to the old name. The president can’t undo legislation, but he can order executive branch employees to change the website and adopt a nickname.
Of course, the next president could undo all of that just as easily — and expensively.
President Trump did much the same when he insisted that he’s outlawed burning the American flag via executive order. “You burn a flag, you get one year in jail,” he claimed in the Oval Office.
But the president has little power to make laws — especially those that clash with First Amendment protections. And the U.S. Supreme Court has made it clear that burning the flag is a protected form of expression . So, the executive order really only specifies that, if “an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws,” local authorities should be notified so they can pursue a prosecution.
This administration issues a lot of executive orders. On Sept. 6, the White House boasted that “No president has signed 200 Executive Orders this quickly since President Franklin D. Roosevelt.”
That’s a familiar message. In 2021, NPR noted that “In his first two weeks in office, President Biden has signed nearly as many executive orders as Franklin Roosevelt signed in his entire first month.”
Before that, The Washington Post acknowledged then-President Barack Obama’s similar flurry of executive actions. Some “have the force of law — unless they are repealed by another president.”
How can a note from the president of a republic have the force of law? It’s because executive orders, memoranda, and other actions are basically memos from the boss to employees of the executive branch. Modern laws are usually written so vaguely that details are left to be filled in by the agencies responsible for enforcement. Those agencies lie within the executive branch, and the president can direct his employees to reinterpret statutes so that what was once considered perfectly legal is now interpreted as a crime or vice versa. On hot-button issues like guns or the environment, that means business as usual can become a felony by order of a new president. And then it can be perfectly legal again four years later, with no change in the law — only in how it’s interpreted according to presidential decree.
There’s a lot of power inherent in turning people into felons on a whim. And there are votes to be gained by promising new interpretations of old laws.
“The last three presidents in particular have strengthened the powers of the office through an array of strategies,” Harvard Law School’s Erin Peterson wrote in 2019. “One approach that attracts particular attention — because it allows a president to act unilaterally, rather than work closely with Congress — is the issuing of executive orders.”
But what is done with a stroke of the pen can often be undone just as easily. On March 14, President Trump issued an executive order rescinding 19 of his predecessor’s actions . “This is in addition to the nearly 80 executive actions President Trump rescinded on Day One,” the White House commented. Then-President Biden did the same during his presidency sandwiched by Trump’s terms. The arbitrary nature of executive actions and their vulnerability to reversal once bothered the current president.
“I don’t like executive orders,” Trump told Face the Nation’s John Dickerson in 2015 when Barack Obama was in office. “That is not what the country was based on.” He added, “So now (President Obama) goes around signing executive orders all over the place, which at some point they are going to be rescinded or they’re going to be rescinded by the courts.”
Since then, though, President Trump has gained a taste for ruling by decree. That started during his first term but really took off during the second. Not that unilateral actions from on-high go unchallenged. So far, BallotPedia counts almost 40 executive orders, memoranda, and proclamations regarding trade and tariffs. Those are headed to the Supreme Court after lower courts found the president exceeded his authority. Trump’s deployment of National Guard Troops to Los Angeles was described by U.S. District Court Judge Charles Breyer as “a serious violation of the Posse Comitatus Act.”
Former President Joe Biden also got pushback from the courts — repeatedly, when it came to forgiving student loans . So did Obama before him when he tried to enact immigration policy on his own say-so. U.S. presidents sometimes seem to forget that their efforts to turn the country into an elective monarchy may be gaining traction but haven’t yet fully succeeded. The courts have been pretty good at reminding them about the facts of constitutional life.
It would be helpful if Congress would also remember that it has a role to play. Our lawmakers appear to have become so accustomed to being bypassed that they’ve forgotten their jobs involve more than fulminating in front of television cameras and calling each other names. Congress is almost vestigial.
Maybe lawmakers could weigh in on what to call our military establishment. If they decide one way or the other, they could save a lot of wasted stationery and spare the country a good amount of expense.
If that helps to revive the legislative branch so that it asserts its prerogatives, slaps down the White House, and starts writing laws that aren’t so subject to presidential interpretation, so much the better.
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