Necessary & Proper Episode 93: Executive Orders: Faithful Execution or Legislating from the Oval Office?

Presidents have used executive orders to direct the executive branch since the founding, but over the years the modern Presidency has drastically expanded its use of executive orders. Executive Orders have always been an important means of moving the Executive Branch into alignment with the President's interpretation of the law consistent with his duty of faithful execution and a primary way President's exercise their executive discretion under law. Yet all power is subject to expansion and abuse. In January 2014, for example, then-President Obama announced his "pen and phone" strategy: "I've got a pen to take executive actions where Congress won't, and I've got a telephone to rally folks around the country on this mission." Subsequent administrations have similarly relied on presidential authority to govern by way of Executive Orders, leading to significant litigation challenging the breadth of such authority. This panel will examine the use of executive orders and the "pen and phone" strategy throughout our nation's history, especially from a separation of powers perspective. This broad power is not expressly identified in either the Constitution or statute, but it has long been accepted as inherent to presidential power over the federal government, federal agencies, foreign affairs, and our military. This panel will discuss the impact of executive orders, what precedent they set for future administrations in the robust exercise of executive authority, and how the "unitary executive" theory plays into that analysis. This webinar will be the first of four webinars previewing the Thirteenth Annual Executive Branch Review Conference on the topic of Theories of Presidential Power. Featuring: John G. Malcolm, Vice President, Institute for Constitutional Government; Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation Prof. Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, George Washington University Law School Prof. Ilan Wurman, Julius E. Davis Professor of Law, University of Minnesota Law School Moderator: Beth Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board

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Necessary & Proper Episode 93: Executive Orders: Faithful Execution or Legislating from the Oval Office? is an episode from Necessary & Proper Podcast by The Federalist Society.

This episode is 61:04 long.

This episode was published on Aug 12, 2025.

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