Much of the Beltway media coverage has focused on the horse-race aspects of these proposed executive orders — what will Republicans say, what will be the electoral consequences in November, and so forth. Less attention has been given to the immediate practical effects of these possible orders (such as whether they will further intensify the shadows of the nation’s legal system) and to the deeper constitutional implications of an executive philosophy that would make Congress a vestigial assembly (a formal nicety, but not a body whose consent is necessary for executive action). As an increasing number of voices have in recent days suggested, attention to such constitutional implications is necessary.

Recent history provides a starting point for such attention. In a 2006 report on the use of signing statements in the Bush administration, a committee appointed by the American Bar Association found that “executive power as conceived in Great Britain and America excluded a power to dispense with or suspend execution of the laws for any reason.” This report also noted that King James II was rebuked by the English Bill of Rights in 1689 for “assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament.”

At least two points might be gleaned from this report. The first is that, by and large, the Founders drew from a broader tradition in which the executive was not the legislator of last resort, empowered to act where the legislature had refused to and to overrule existing laws at a whim. Instead, each of the three institutionalized branches of the federal government (the presidency, Congress, and the judiciary) have certain, limited responsibilities and powers. Indeed, viewing the executive branch as the legislator of last resort turns the legacy of the Founders on its head: By instituting a multi-step process of legislation (through having a bicameral legislature and giving the executive the authority to veto laws), the Founders made it difficult to pass new laws. This difficulty has often encouraged consensus in the passing of laws and open debate in the examination of them. The difficulty of passing laws is woven into the fabric of the federal government, and so, if we gave the president the legislative authority to act on all issues where Congress has not done so, we would risk supplanting the traditional notion of the balanced republic with an executive-driven state in which Congress is a superfluous organ capable of dispensing political patronage and issuing press releases but not actually governing.