Wednesday, February 15, 2017

An Executive Order Does Not a King Make - A Return to the Imperial Presidency?

                        Your king is SUPPOSED to explode?  What
                        kind of government system is that?”

                                 – Jefferson Smith, Strange Places (2014)

We have been hearing and reading quite a bit lately about the freshet of executive orders issued by DJT since January 20 (“a date that will live in infamy”).   He seems to think that all he has to do is express his will, show everyone his signature on each order he signs, and it suddenly becomes the law of the land.  Not so fast buddy! 

David Schulz, a professor of political science at Hamline University, in St. Paul, Minnesota, who is a noted authority on public policy and administration and the author of American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Research (2013), tells us that there is a Constitutional foundation coupled with legal precedents governing the issuance of executive orders.  Article II, Section I, Clause 1, of the Constitution vests executive power in the president, while Article II, Section 3, requires that the chief executive insure that all laws “be faithfully executed.”  An executive directive – now known as an executive order – is issued by the president to an executive branch department or governmental agency and has the full force of law, just as if it had been passed by the Congress of the United States.  However, an executive order has the force of law ONLY when it comports with the responsibilities and duties of the president granted to him or her by the Constitution of the United States, by federal statute, or by the US Congress.  Add to this the important fact that each executive order can be revoked or stayed by the Supreme Court or a lower federal court, if it violates the Constitution, federally mandated statutes, or any other discretionary powers granted by Congress to the Chief Executive.   There does not appear to be much wiggle room when it comes to the constitutionality of an executive order.

These orders date back to the beginning of our republic.  George Washington issued the first one in 1789 to clarify the duties of the executive branch.  Thomas Jefferson ordered the Louisiana Purchase from France in 1803, and James Knox Polk ordered the annexation of the Republic of Texas in 1845.  Perhaps the most famous executive directive, as it was known at the time, is Abraham Lincoln’s Emancipation Proclamation.  Issued on January 1, 1863 under the war powers act, it changed the legal status of slaves in the confederated states in rebellion against the United States since 1860.  Woodrow Wilson issued an executive order in 1917 in order to prepare this country for entry into World War I.  FDR issued numerous executive orders during World War II.  During the Kennedy and Johnson administrations (1961-1969), these two presidents issued executive orders to facilitate racial integration and to end segregation throughout the South, and to enforce civil rights across the country.   

These executive orders were designed to give the president the ability to deal with domestic or international emergencies, to clarify stated policies, to streamline existing law, or to address inadequacies in governmental operations.  Unfortunately, there are those, including DJT and many in his administration, who view these orders as a means of circumventing the legislative branch and the strict interpretation of the separation of powers.  And oddly enough, Congress does not seem to have a problem with this.  Well, the federal courts do.  The American people do.  And it’s high time DJT and his minions and Congressional cronies understand this.    

The intended purpose of executive orders, however, is not to unilaterally gut or dismantle programs and policies of a previous administrations.  That is not governing.  That is partisan retribution with no consideration as to how these changes impact the people being governed.  We have seen quite a bit of this over the past three weeks.  It makes one hark back to the imperial presidency of Richard Nixon (someone every president hopes ro emulate?) who used executive orders in his attempt to defund or dismantle federal agencies.  Thankfully the federal courts stymied these attempts. 

Since the inauguration of DJT almost a month ago I am certainly not the first to remind him that he is a president and not a king.  And as president-elect, he stood in front of the Capitol with his hand placed upon two Bibles and took an oath to uphold the Constitution of the United States of America.   He seem to be somewhat confused as to what that actually means.  The dozens of executive orders DJT has signed to date appear, in almost all instances, to address matters and issues he does not fully comprehend; perhaps because he was not paying attention during all those important transition briefings, most of which he either ditched or apparently doodled and Twittered his way through.  He needs to show some due diligence before he acts and speaks.  So far this has not been the case.

Plain and simple . . . DJT does not have inherent power to issue executive orders to satisfy his personal foibles and caprice.  Their authority must come from the Constitution or laws, subject to their limitations.  I hate to rain on his parade, but hell, let it pour.

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