“You Can’t [legislate] by Executive Order Unless You’re a Dictator”
– By Harold Pease, Ph.D. –
Just three weeks before the 2020 election presidential candidate Joe Biden said something very profound—even constitutional. “I have this strange notion, we are a democracy … if you can’t get the votes … you can’t [legislate] by Executive Order unless you’re a dictator. We’re a democracy. We need consensus.”
Joe Biden “signed more executive actions on day one than Trump, Obama, Bush and Clinton combined”—17 (Amanda Shendruk, (Quartz, January 20, 2021). By the end of January, just 11 days, he had signed “25 executive orders, 10 presidential memos, and four proclamations”—39 total (Amanda Shendruk, “How Joe Biden’s executive orders compare with those of other presidents,” Quartz, January 31, 2021). Proclamations are mostly ceremonial and executive orders and memoranda, both legally binding, differ little.
None of these 39 actions went through Congress for the needed consensus Biden spoke of. By his own definition, he has shown himself to be a dictator. He dismissed Congress as America’s ONLY lawmaking body—effectively appointing himself the legislature. He is no longer even attempting to get their votes before he decrees. Thus far in this new socialist government, he rules by decree, precisely as does Vladimir Putin (Russia) and Xi Jinping (China), other socialist countries. He also came to power as they, by censoring opposing information and election fraud as witnessed by every American willing to review the data.
There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, another to execute legislated law, and a third to adjudicate possible violations, when contested, of that law—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (Article I, Sec. I).
The executive branch has NO authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Nor can a president cob together parts of ancient laws to create new authority never intended by the authors of previous law. Originally they were but interdepartmental directives and not intended to do anything more. No mention of them exists in the Constitution.
Democrats formerly recognized that executive orders, making law, weakens the sole power of Congress to make all law and places us on the road of government by decree or edict of one man. On March 28, 2011, President Barack Obama said, with respect to the idea of nullifying Congress on the deportation issue of illegals in the country. “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed,” but this is one of Biden’s recently signed executive orders.
Some defending a president’s executive order practice of making rules may suggest, naively, that such are not laws and thus okay. The Founders made no distinction between rules and laws. Regulations and laws have in common three things, they impose a restriction, administer a penalty, or prohibit an activity. Congress alone can make them and has no authority to give away its exclusive power to do so, whether called a regulation or a law, nor to allow the executive branch to do it for them. The people have the right to know that every restriction imposed upon their behavior was read and voted on by four elected, thus accountable, persons—their Congressman, their two U.S. Senators, and their president.
The constitutional response to the theft of Congresses sole power to legislate should be threefold: 1) renounce any president’s decree(s); and 2) the House should refuse all funding to implement decrees as per Article I, Section 7. If the first two fail to enlist the president’s obedience to the Constitution, Congress must activate against him his oath to “preserve, protect and defend the Constitution of the United States,”(Article II, Sec. 1, Clause 8). His failure to honor his oath is “a high crime,” an impeachable offense. This action should receive the support of every member of Congress as they too took an oath to “preserve, protect and defend” the Constitution. Unfortunately, party loyalty for some is higher than constitutional loyalty.
This is especially so when a president initiates an executive order in direct conflict with existing law as when President Barack Obama June 16, 2012, failing to get a favorable vote from Congress stopping the deportation of illegals, openly defied Congress, existing law, and his promise not to do so, by ordering it anyway by executive order. Thus the birth of DOCA.
Democrats should reign in their president. If they do not, they in effect, give permission for the next Republican president to defy Congress on something Democrats had previously established as law. He too could nullify that law by executive decree.
Except for the few laws of Congress requiring a statement of implementation by the president, all other types of executive orders are unconstitutional and must stop. If they do not, the inevitable will happen–Congress will nullify itself and dictatorial decrees will be the standard. With 39 executive actions the first 11 days, this appears to have already happened under Joe Biden.
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