Executive Orders – The Eternal Struggle for Power
By Dylan R. Bryant, M.P.A., Executive Secretary & Board Member, The American Leadership & Policy Foundation
Newly elected Missouri Governor Eric Greitens recently issued an executive order to create a prescription drug monitoring program (PDMP) in Missouri. The governor’s newest executive order erects a system markedly different from the plan proposed by the legislature earlier this year and is actually quite different than most drug monitoring programs across the country. Specifically, the governor’s plan calls for the Missouri Department of Health and Senior Services to create a database that will target “pill mills” that pump out prescription drugs at “dangerous and unlawful levels.” The department will work with private sector partners to obtain de-identified data that can be used to target abusers. Furthermore, the governor declared in his executive order that he issued the order primarily due to the failure of the legislature to pass its own version of PDMP during the legislative session that runs from January to May.
This elicits an age-old debate—under what circumstances is it apropos to issue an executive order and under what circumstances does it violate the adroit balance of power structure designed by our Founding Fathers in the U.S. Constitution more than two centuries ago? The answer, unfortunately, is not always clear and well-defined.
In the case of contested executive orders, the power struggle is typically between the legislative and executive branches of government, and are particularly controversial when the president or a state governor issues an executive order in an attempt to achieve a policy goal or objective that the legislature either failed to adopt earlier or in some instances never had the opportunity to consider. In this instance, it is a matter of the former. Earlier this year, during the Missouri legislative session, a state representative proposed a PDMP plan in the Missouri legislature, and like most other states’ programs, it would have tracked when a patient is prescribed an opioid and allowed doctors to have access to that data in an effort to recognize signs of abuse. However, the plan did not make it through the entire legislative process. Therefore, and markedly different than the legislature’s plan, the governor’s program, recently instituted by executive order, does not put information in the hands of physicians, but rather focuses the data collection effort on those who prescribe and distribute addictive prescription medications. As a result, it is likely the governor’s program will not prevent “doctor-shopping”, which is the practice of visiting multiple physicians to obtain more than an allotted amount of a medication or prescription—a serious concern and vital to the success of any drug monitoring program. Moreover, one of the biggest points of contention, and the essential subject matter of this article, is the constitutionality of the governor’s executive order. While the governor, like the president, has a clear and legal ability to issue executive orders, the legality of the substantive directives contained within executive orders are often the catalyst for rigorous debate.
Historically, debate over executive orders, both in number and subject matter, can be traced back to the founding of our country. In fact, in 1793 U.S. President George Washington issued an executive order declaring that the U.S. would be “friendly and impartial toward the belligerent powers” of France and Britain.1 Soon after, James Madison heavily criticized Washington’s executive order as a violation of the Constitution’s balance of power and Congress’s clear authority to decide issues of both peace and war.2 While Congress later passed the Neutrality Act of 1794, which granted Washington the power to pursue violations of his executive order, this is an early example of the power struggle between the two branches of government.3
Back to our contemporary dilemma, due to the fact that the governor waited several months to see how the legislature voted on PDMP, as opposed to acting immediately upon his ascension into office, which would likely of happened in a true emergency, and the governor’s own language asserting the executive order as a response to the legislature “failing to act”, I believe the executive order is an overreach of executive power. In other words, because there was not truly a crisis where action had to be taken immediately, and considering the governor apparently initially thought it was a subject matter best handled by the General Assembly, the executive order crossed the line. Important to note, however, is that the Governor’s version, as mentioned earlier, is a condensed form of the PDMP bill the legislature previously considered. This briefer version may have been an attempt to satiate opposition to the use of an executive order and bolster justification for the program’s implementation. Nevertheless, simply because the legislature did not pass a policy priority of the governor, does not automatically give the governor’s office the power to enact such policy, or a similar policy, himself. Because, in doing so, the Governor is essentially usurping the General Assembly’s legislative power, and attempting to legislate through the executive branch—a violation of the separation of powers erected in both the Missouri and U.S. Constitutions. The legislature makes the law; the executive branch enforces the law; and the judiciary interprets the law. Of course, while each branch will defend the legality of their actions or viewpoints with various provisions of the law, the circumstances surrounding the implementation of PDMP in Missouri by executive order, I believe, appears to be a form of legislating—a power reserved for the legislative branch not the governor’s office. The doctrine of separation of powers and checks and balances lies at the heart of our representative democracy, and all elected officials and government officials should strive to uphold those founding principles.
Ultimately, the governor’s program will now be put in place by the Department of Health and Senior Services at an initial startup cost of approximately $250,000. The department will enter into a contract with Express Scripts to establish the program, and will need to add additional staff to administer it. The money for the program will come from the Department of Social Services under Medicaid. Time will tell whether the governor’s executive order stands or is challenged and taken before the Missouri Supreme Court.
1. Gaziano, T. (2001, February 21). The Use and Abuse of Executive Orders and Other Presidential Directives. Retrieved July 20, 2017, from http://www.heritage.org/political-process/report/the-use-and-abuse-executive-orders-and-other-presidential-directives