All legislative powers herein granted shall be vested in a Congress of the United States.” So begins the US Constitution.
The President’s entire role in the lawmaking process is also described clearly and succinctly: “He shall take Care the Laws be faithfully executed.”
Joe Biden apparently didn’t get the memo. Hours after swearing an oath to “preserve, protect and defend“ this same Constitution, he was at his desk signing a record high stack of executive orders, all of them carrying the force of law and many clearly articulating legislative functions.
Just last October, Biden explained to George Stephanopoulos that some of his political friends believed “if you can’t get the votes, by executive order, you’re going to do something.“ But you can’t do that “unless you’re a dictator. We are a democracy. We need consensus.“
Naturally, that was reassuring to constitutionalists since his former boss, Barack Obama, had claimed the right to use his “pen and phone“ when Congress balked at his demands.
But the constitution, as Biden implied, doesn’t provide for an expansion of presidential powers when Congress refuses to cooperate. Even Obama, in the case of the DACA executive order, recognized that before he didn’t.
However, something happened on the way to the Oval Office. Even though his party was in control of both houses of Congress and the legislature hadn’t had time to even consider his initiatives, he signed 17 orders that day, 40 in his first week.
To be fair, Biden didn’t invent the Executive Order. In fact, many of his EOs were reversing EOs issued by his predecessor. FDR set the all-time record for signing EOs. Like most presidents, his were generally concerned with details of managing the Executive branch. Biden put a bad idea on steroids.
Biden was all over the board. Figuring you can’t go wrong dumping on Trump, he made a point of ending the construction of the border wall, assuring protection from deportation to illegal immigrants in DACA, and striking down the travel ban from countries designated as sources of terrorism.
Many EOs addressed the pandemic, including rejoining the WHO (that’ll help!) and mandating face masks on federal property.
Other initiatives kicked off the Green New Deal. China had to be thrilled that we are back in the Paris accords. Canada was not thrilled that the Keystone Pipeline permit was terminated. Funding of international nonprofits that provide abortions was restored, student loan repayments were paused and privatized prisons were slated for extermination. Phew!.
There was much more, but the problem with EOS is that they have the force of laws but they’re not laws. They can and are reversed by succeeding administrations.
This gives our governance a kind of herky-jerky, now-you-see-it-now-you-don’t kind of character. Neither friends nor foes are ever sure where they stand. They just know the US can never be depended on, as the Canadians learned (again).
Worse, executive orders are incapable of resolving conflicts since the consensus is brushed aside. Roe v. Wade was decided in 1973 but the abortion question was not. Because it was determined by “nine men in black“, not the people expressing their will through the democratic process, it remains a divisive matter of contention to this day.
Unfortunately, Biden dictating the “most sweeping expansion of LGBTQ rights in American history“ is an executive usurpation of the democratic process which will likely have the same result. Many Americans are deeply troubled by children socially pressured to make questionable life-altering decisions.
Women’s sports teams, battered women shelters, and high school locker rooms all have legitimate reasons to exclude biological males. Their rights were ignored for the sake of the latest woke cause.
Congress stands meekly by while its prerogatives are trampled. Too many legislators seem to think making real policy decisions is politically risky. Working out critical details of legislation is tedious work best left to bureaucrats. We are left with an executive-oriented government nothing like what the founders bequeathed to us.
A government based on one person making the laws for all is called monarchy. Monarchies dominated human history but the American Experiment was based on government “of the people, by the people, for the people“.
Thomas C. Patterson, MD is a retired Emergency Medicine physician, Arizona state Senator and Arizona Senate Majority Leader in the ’90s. He is a former Chairman, Goldwater Institute.