Democratic state legislators in New Jersey may learn the hard way what it means to have a first-year Democratic governor assert his leadership over the state and the Democratic Party.
The posturing in the N.J. State Senate will eventually stop, but before it does, Governor Phil Murphy is using executive order to implement the agenda he promised during the campaign and reaffirmed in his inaugural address.
The new governor signed his first executive order just three hours after taking office, establishing equal pay requirements for state agencies. During his first two weeks in office, Murphy also ordered a complete review of the state’s medical marijuana program and made offshore wind a top priority.
While they may be controversial, executive orders have become the only way for governors and presidents to effect change and overcome legislative deadlock and extortion. The power is most often used when the chief executive is a member of the opposite party that controls the legislative branches.
President Barak Obama attempted to use executive orders to achieve the objectives the Republican Congress would not support. In New Jersey, Gov. Chris Christie issued a record 241 executive orders over his eight years as governor. Governor Tom Kean was the prior record holder in New Jersey, issuing 226 executive orders from 1982 to 1990.
Executive Orders vs. Legislative Action
In an ideal world, the governor and state legislators would work in concert to pass legislation that meets the needs of their state. However, partisan politics often slow the lawmaking process to a crawl. Even when the executive branch and legislature are held by the same party, it can still be difficult to turn policy into law (just ask President Trump).
In issuing executive orders, New Jersey governors rely on the executive powers set forth in Article V of the State Constitution. While Article V does not expressly reference executive orders, it does broadly require that the governor “take care that the laws be faithfully executed.”
As highlighted by the Rutgers University Center on the American Governor, New Jersey governors have issued executive orders for a wide range of purposes, including facilitating routine government operations, responding to crises and instituting significant policy changes.
While action taken via executive order bypasses legislative approval, orders can face a legal challenge if they appear to exceed the governor’s constitutional authority.
U.S. presidents enjoy similar authority.
According to the U.S. Constitution, under Article II, Section 1: “The executive power shall be vested in a president of the United States of America.” Article II, section 3 further states, “The President shall take care that the laws be faithfully executed…”
While neither provision expressly authorizes the president to “go it alone,” presidents have issued executive orders since the earliest days of our country.
George Washington issued the first executive order in 1789 and made seven more during his tenure. Nearly 150 years later, President Franklin D. Roosevelt issued a record 3,522 executive orders. Abraham Lincoln likely issued the most famous executive order in the form of the Emancipation Proclamation.
While critical of President Barak Obama’s use of executive orders, President Donald Trump has relied on them heavily, issuing 58 since taking office.
Gov. Murphy’s Executive Orders
To date, Gov. Murphy has issued eight executive orders, including:
- Promoting equal pay and gender equity;
- Outlining ethics and standards and code of conduct for the governor;
- Ordering the Office of the State Comptroller to conduct a complete performance audit of the Grow New Jersey Assistance Program and the Economic Redevelopment and Growth Grant Program, and predecessor programs, from 2010 onward;
- Ensuring that every New Jerseyan has access to affordable health insurance;
- Directing the Commissioner of Transportation, who also serves as Chair of the NJ Transit Board, to engage and direct one or more independent consultants to conduct a comprehensive strategic, financial and operational assessment of NJ Transit;
- Mandating review of New Jersey’s medical marijuana policy;
- Directing New Jersey to reenter the Regional Greenhouse Gas Initiative;
- Promoting offshore wind energy.
Given Gov. Murphy’s ambitious agenda, additional executive orders are sure to follow. While often debated, they have become as essential tool of the executive branch.