The Constitutional Crisis That Wasn’t: Executive Orders and the Limits of Outrage

The Proposition

The president has issued 43 executive orders in fourteen months. The opposition has called this a "constitutional crisis." It is worth examining whether this description is accurate, whether it matters, and whether the opposition would behave differently if the situation were reversed. The answers, in order, are: partially, yes, and no.

WHAT HAPPENED

• The president has issued 43 executive orders in 14 months
• The average across the past four administrations is 38 executive orders per full four-year term
• Executive Order 14237 directs federal agencies to implement student loan modifications affecting approximately $430 billion in outstanding loans
• Legal challenges have been filed in three federal circuits
• The Supreme Court established the "major questions doctrine" in West Virginia v. EPA (2022), requiring clear congressional authorization for agency actions of vast economic significance

THE CONSERVATIVE DIAGNOSIS

The conservative case against executive overreach is correct in principle: the president is not a legislator, and governing by executive order circumvents the deliberative process the Constitution requires. An executive order that modifies $430 billion in financial obligations without congressional authorization is, on its face, a legislative act performed by the wrong branch.

However, the conservative must also account for an awkward precedent: the previous administration issued 220 executive orders in four years, including several that redirected billions in appropriated funds without congressional approval. The principle of executive restraint is sound. Its application has been partisan.

THE LIBERAL ERROR

The progressive defense rests on necessity: Congress is dysfunctional, the president must act. This argument is identical to the one made by every executive who has expanded presidential power since Lincoln, and it has the same flaw. Congressional dysfunction is not a grant of executive authority. If it were, the separation of powers would survive only as long as Congress functions, which is to say not at all.

THE CONSTITUTIONAL QUESTION

The major questions doctrine, articulated in West Virginia v. EPA, provides the most promising constraint on executive overreach in a generation. It holds that agencies (and by extension, executive orders directing agencies) cannot resolve questions of vast economic or political significance without clear congressional authorization. Applied to EO 14237, the doctrine suggests that modifying $430 billion in student loans requires more than executive discretion.

The question is whether the Court will apply the doctrine consistently or selectively. Consistency would constrain presidents of both parties. Selectivity would make the doctrine another partisan instrument, which is what the opposition fears and the supporters hope.

WHAT PRUDENCE REQUIRES

A constitutionalist must condemn executive overreach regardless of the party committing it. This has proven to be a standard that approximately zero elected officials can maintain.

SOURCES

• American Presidency Project, executive orders by president
• West Virginia v. EPA, 597 U.S. ___ (2022)
• Congressional Research Service, "Executive Orders: An Introduction" (2025)

POLLERBULL SIGNAL

• What moves odds: Executive orders generate media coverage but do not move approval ratings. The public evaluates outcomes, not process. If the student loan modifications produce tangible relief before the midterms, the constitutional objection will not register with voters.
• What would falsify this: If the Supreme Court strikes down EO 14237 under the major questions doctrine and the president's approval drops more than 3 points within a month, the constitutional argument has electoral salience. Historical precedent suggests it does not.