“Executive Orders Between Facts and Norms: Habermas and the Problem of Democratic Legitimacy,” Essay, Tina Deshotels.
In 2026, German philosopher and sociologist Jürgen Habermas passed away at the age of 96. Best known for his work on the public sphere, communicative action, and democratic legitimacy, Habermas influenced generations of scholars and helped shape contemporary thinking about democracy. To mark his life and work, writers associated with North Meridian Press are contributing a series of short essays examining both the importance and limitations of his thought. In this essay, Professor Tina Deshotels explores Habermas’s theory of democratic legitimacy through the language of presidential executive orders, asking how legal authority can remain intact even as the democratic foundations that legitimize it become increasingly fragile.
It is hard to follow politics today without wondering what makes the exercise of government power legitimate. Is it enough that a president has the legal authority to act? Does a crisis justify extraordinary action? And what happens when political leaders appeal to threats, fear, or their own certainty that they know what must be done? Jürgen Habermas offers a particularly powerful lens for analyzing these questions. His work, particularly Between Facts and Norms, helps us understand a central tension in contemporary democracy: having the legal power to govern is not the same thing as having democratic legitimacy to govern. But Habermas also helps us recognize a less obvious danger: democratic institutions and bureaucratic structures do not have to disappear for the basis of their legitimacy to change. My argument is that charismatic anti-rationality does not necessarily replace bureaucracy; it can become embedded within it, changing the grounds on which state power is justified. My research on presidential executive orders provides one way to see that tension unfolding in real time.
Executive orders can look like administrative paperwork: definitions, delegations of authority, reporting requirements, and instructions to federal agencies. My research begins from a different premise. Executive orders do more than direct government action. They also communicate why presidential power should be regarded as legitimate.
I examine executive orders across the Obama I and II, Trump I, Biden, and Trump II administrations, focusing on areas where state power is especially consequential: national security, policing, immigration, and emergency authority. I code these orders paragraph by paragraph for different ways presidents establish legitimacy: bureaucratic authority, instrumental rationality, humanitarian protection, cultural values, emotion, and charismatic authority.
Initially, I expected to find that charismatic appeals would appear primarily in speeches and campaign rhetoric rather than in executive orders themselves. Instead, some of the most interesting cases appeared inside highly technical administrative documents. That observation ultimately shaped the argument developed here.
One pattern is especially important to this project: what I call charismatic anti-rationality. By this I mean a form of legitimacy in which personal conviction, emotional certainty, grievance, and claims of extraordinary threat begin to displace evidence, expertise, deliberation, or procedural constraint as reasons for action. Trump is hardly the first American president to use charisma, emotion, moral claims, or the language of national threat. What appears distinctive among the administrations I examine is the way these elements become fused with anti-rational forms of justification inside rational-legal documents themselves. In my sample, this pattern emerges during Trump I and becomes increasingly institutionalized during Trump II: the language of charisma, threat, grievance, and personal certainty becomes embedded in the ordinary machinery of bureaucratic government.
This is where Between Facts and Norms becomes particularly important. Habermas helps us see that the danger is not necessarily that rational-legal institutions disappear. They may remain very much intact. The problem arises when the democratic processes and forms of public reasoning that give those institutions legitimacy weaken, while the state's capacity to act and coerce remains strong.
Habermas begins with a fundamental problem of modern democracy. Law has what he describes as both facticity and validity. The state possesses the capacity to enact and enforce law: agencies exist, officials have authority, and citizens can be compelled to comply. But democratic law also makes a claim to validity. We are expected to regard it not merely as something government has the power to impose, but as something that can be justified as legitimate.
Executive orders sit directly within this tension.
Consider Obama's Executive Order 13587 on classified information. It creates committees, assigns responsibilities, establishes standards, and requires compliance—the machinery of rational-legal authority. But it also requires that security measures remain consistent with protections for privacy and civil liberties. Similarly, EO 13684 on 21st Century Policing combines the goal of reducing crime with increasing public trust. These orders exercise state power, but their language also gestures toward limits on that power and toward citizens whose acceptance matters.
Now consider Trump's 2025 EO 14159, Protecting the American People Against Invasion. Like earlier executive orders, it cites statutes, delegates authority, and establishes administrative procedures. But its justificatory language is strikingly different. Immigration is described as an “invasion” and an “unprecedented flood”; immigrants are associated with “vile and heinous acts”; protecting Americans becomes a “sacred obligation”; and the order calls for “total and efficient enforcement.” What is significant is not simply that the language is emotional—presidents have always used emotion—but that threat, moral certainty, and bureaucratic authority increasingly operate together. The language of extraordinary danger becomes part of the justification for ordinary administrative action.
Habermas, of course, is not writing about executive orders specifically. Yet the framework proves remarkably useful for understanding them. Specifically, using his insights we can understand that Democratic legitimacy does not arise simply because government acts according to legally established procedures. Law is legitimate insofar as citizens can understand themselves, at least ideally, as both its subjects and its authors. That requires a public sphere in which claims can be questioned, reasons challenged, and competing interests heard.
At this point, the question is no longer simply whether executive power expands. The more interesting question is how that expansion is justified. The warning sign may not be the disappearance of law or bureaucracy. Indeed, bureaucracy may continue functioning extremely well. The warning sign may instead be a change in what legitimates that bureaucracy: a movement away from publicly contestable reasons and toward threat, moral certainty, and the authority of the leader.
That is ultimately what my study asks. Across presidential administrations, does executive power remain connected to legal constraint, rights, public accountability, and reasons that invite evaluation? Or does legitimacy increasingly rest on threat, necessity, moral certainty, and confidence in the leader?
Habermas helps us see why the answer matters. A government can possess the legal power to act, the fact of authority, while the democratic norms that make that authority legitimate become increasingly fragile. The institutions can remain. The bureaucracy can remain. What changes is the basis on which we are asked to accept their authority. Whether this pattern represents a lasting transformation remains an open question. My argument is more modest: the language of legitimacy within executive orders appears to be changing in ways that deserve closer attention.
Dr. Tina Deshotels is Professor and Department Head of Sociology and Political Science at Jacksonville State University. Her research and teaching focus on sociological theory, gender, crime, and deviance, with particular attention to explaining social phenomena through multiple levels of analysis. She is co-author of Gendered Power and Exotic Dance: A Multi-level Analysis and Crime and Deviance: Understanding Problems, Constructing Solutions. Her scholarship has appeared in journals including Deviant Behavior, Sociological Spectrum, and the International Review of Modern Sociology. Deshotels is executive director of Tri-County Crisis Services and leads the Tri-County Coordinated Community Response Team.