Posted on 02/01/2021 10:40:36 AM PST by nickcarraway
If the refusal of lawmakers to enact a president's policies is justification for unilateral executive action, then a slide toward elective monarchy is inevitable.
"Ease up on the executive actions, Joe," The New York Times urged recently inaugurated President Biden last week. While supportive of the president's broadly progressive agenda, the newspaper's editorial board found his flurry of executive orders and other unilateral actions both troubling and vulnerable to easy reversal by future presidents. "This is no way to make law," the Times added.
Unfortunately, creeping rule-by-decree has become common for presidents, and Biden's impatience with the normal frustrations of the legislative process builds on the conduct of his predecessors. While partisans tend to pick sides on executive power depending on who holds the White House, the devolution of the presidency into something resembling elective monarchy should worry everybody.
Not that executive orders are supposed to be royal decrees. At their root, they are nothing more than the authority of leaders to set rules for their organizations.
"Presidents have historically utilized various written instruments to direct the executive branch and implement policy," the Congressional Research Service noted in 2014. "These include executive orders, presidential memoranda, and presidential proclamations."
"The substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress," the 2014 report added.
But the limits of such orders are fuzzy since there is no mention of them in the Constitution; they evolved as a matter of convenience and so have their powers.
"When carried out pursuant to legislative or constitutional authority, executive orders are unobjectionable," the Cato Institute's Gene Healy observed in his 2008 book, The Cult of the Presidency. "Yet many of the orders issued by modern presidents lack such authority and justification."
Professor Dana D. Nelson of Vanderbilt University agrees. In her 2008 book Bad for Democracy, Nelson called such unilateral commands "power tools" that "allow the president to enact both foreign and domestic policy directly, without aid, interference, or consent from the legislative branch."
That's not to say that executive actions can't be challenged; judges do occasionally overturn them. But it takes less time to issue a memo than to fight it in court, so orders accumulate along with their reach.
Under Coolidge and Hoover, most executive orders applied to such matters as civil service rules. However, by the 1960s, the majority were policy-specific, filling the role of legislation. Issuing orders is easy; persuading lawmakers to pass your bills is difficult and time-consuming. As a result, unilateral action is tempting even for critics of such governance.
"A polarized, narrowly divided Congress may offer Mr. Biden little choice but to employ executive actions or see his entire agenda held hostage," the Times sniffed while objecting to the practice.
For its part, the Biden administration makes no secret of its impatience with normal legislative channels.
"There are steps, including overturning some of the harmful, detrimental and yes, immoral, actions of the prior administration that he felt he could not wait to overturn," White House press secretary Jen Psaki told reporters who questioned the Biden administration's reliance on unilateral action.
But every faction thinks its agenda is important and that its ideological foes do harm; that's why political parties oppose each other. If the refusal of lawmakers to enact a president's policies is justification for unilateral executive action, then a slide toward elective monarchy is inevitable. And that's exactly what seems to be happening.
"Biden's use of the executive power in his first two days far outpaced that of his predecessors," PolitiFact confirmed amidst public concern over the issue. "Biden issued 17 executive orders on his first two days in office, compared with Trump who issued one and Obama who issued two. Biden issued three proclamations, while Trump and Obama each issued one."
But those predecessors also relied heavily on executive actions. "Trump is on pace to sign more executive orders than any president in the last 50 years," CNN reported in 2017 of the 45th president.
"Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history," The New York Times concluded at the end of the 44th president's time in office.
Notably, before taking office, Obama, Trump, and Biden were all critics of presidential rule through unilateral orders. "We're a democracy. We need consensus," Biden told ABC News in October. Just months later he issued his flurry of executive actions.
Maybe that's because consensus is difficult to find in a vast nation of millions of people with varying values and preferences. That's especially true when the country is as bitterly divided as the United States is now, into factions that despise each other to the point of violence. Presidents and their supporters often complain of a "do-nothing Congress" when legislators are in fact doing something: they're blocking the president's agenda. That may well be what their constituents want them to do.
Such relative inaction may actually be best when there's so little agreement on what people desire from government—and what they fear from it.
"Overwhelming majorities of both Biden and Trump supporters say that if the other candidate wins in November they would not only be very concerned about the country's direction, but that this would lead to lasting harm to the nation," Pew Research found before the presidential election. That was before the Capitol riot and further souring of the national mood, with a majority of Americans now fearing each other as "domestic enemies."
America's divisions have deepened as government has become more involved in our lives and as presidents have indulged their taste for bypassing Congress. To reverse that dangerous trend, we need a president willing to do less, especially when it comes to issuing unilateral orders. That's a tough ask for people who spend their lives pursuing political power. We may have to settle, again, for the next president unilaterally reversing this one's actions.
Its all fun and games until the people and/or states refuse to comply.
He wasn't even "elected".
Democracy.....Monarchy......Dictatorship.... I give it 15 more years, where ya wanna move? Australia? I already live in California so I’m good here. We already have Communism. Workers of the world unite....at home....or something.
Puppetry. The Presidency was crippled when JFK stole it from Nixon, and then Nixon returned the favor by finishing off the unassailability of the Office. Should have never resigned. Been the Deep State ever since.
Now with Xiden there's no pretense that it's anything but a illegitimate puppet-state, so they can finally uncover the extra-constitutional plans that eventually end in an attempt at disarmament of the American populace.
The Slimes missed the memo. We now live in dictatorship.
Not “elective” when sotlen by massive votes dumps.in the wee hours of the morning
Unfortunately, most of what Trump accomplished was also by executive order. The Republicans in Congress did nothing to pass any laws that would have some sticking power. Trump was betrayed by Mitch McMconnell and by many of the people Trump put in his administration. Why did he pick the people he did?
Neither the Framers of the Constitution nor President Trump intended for a President Biden to use Executive Orders in such a reckless manner.
They think history isn’t watching.
You are probably right. Perhaps he thought the Republicans actually wanted to act on what they professed to believe.
”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added].” —United States v. Butler, 1936.
But since recent renegade Democratic and RINO-controlled Congresses are supporting rebellious presidents by wrongly remaining silent about constitutionally indefensible EOs, lawmakers need to be removed from office under Section 3 of the 14th Amendment imo.
"14th Amendment, Section 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same [emphasis added], or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Well-written article, thank you.
And the Roman Republic slowly sank into the corruption of the Roman Empire’s Swamp by “allowing” a single general to assume powers never legally nor morally dreamt possible earlier.
“Biden will be inaugurated no matter what happens on election day.” - Nancy Pelosi
The constitution. That boat sailed decades ago.
Yes, but most were within the authority of the Executive Branch. HidenBiden has gone way outside his authority. My main issue with Biden is his perceived authority to shut down work on the Wall. The Wall was a Congressional act and signed into law many years ago. That law has not been repealed.
Unfortunately, due to changing politics it was never funded until Trump forced Congress to fund it in part, and the USSC agree he could use DOD funds for further work. An E.O CANNOT negate legitimate Congressional Law signed by a previous President. It becomes law in the registry, or law of the land.
Where are the lawsuits?
It wasn’t even massive fraud. It was precisely targeted fraud. They knew exactly where they needed to dump ballots and change the counts and when to do it. They had the elected democrat partisan judges on stand by to throw out any challenges and declare everything they did was a OKAY! “What? 10,000 ballots with no address or signature all for Biden and ONLY Biden? Good to go.”
Exactly !
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