The Administration

Executive orders run wild … again

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The American republic is a constitutional democracy, whereby the limited powers of government are expressed in the Constitution. Article II of the Constitution created and expressly granted powers to the executive branch. The president of the United States is bound to the expressed powers of the Constitution.

This past week President Donald Trump issued executive orders:

  • Effectively changing American trade policy (leaving the Trans Pacific Partnership trade deal and re-negotiating NAFTA);

  • Prohibiting international organizations from use of federal monies for abortions;

  • Easing the economic burden caused under the Affordable Care Act, an order

  • Imposing a federal hiring freeze; an order halting a mortgage insurance premium cut;

  • Changing regulatory policy specific to energy and the environment; an order

  • Halting communication from the EPA;

  • Signaling funding for a finished wall on the American southern border with Mexico; and

  • Re-opening negotiations with Canada over the keystone and Dakota pipelines.

As I write, more executive orders are likely coming out.

{mosads}Trump’s first actions, as president, were unilateral decisions, not collaborative, deliberative actions debated in Congress. These actions should have been legislated.

 

Unfortunately, these days folks are fine with presidents signing action into law (when they agree with the president). The initial policies President Trump has overturned were changed and/or interpreted by President Barack Obama in executive orders.

Therefore, President Trump enacting executive orders is merely following in the precedent established by former presidents, not necessarily constitutionally merited.

The tradition of executive order is debatable constitutionally and at times an egregious presidential action. The Constitution does not explicitly state that presidents have the authority of executive order. Yet, all presidents have construed such power and have declared proclamations and orders interpreting and executing federal law.

For comparison sake: George Washington issued eight orders, Abraham Lincoln 48 orders, Woodrow Wilson 1,803 orders, Franklin Roosevelt 3,522 orders, Ronald Reagan 381 orders, George W. Bush 291 orders and Barack Obama 277 orders.

Yes, presidents are constitutionally charged to “take care that the laws be faithfully executed.” But, does faithful care and execution of the law impart on a president the power of unilateral legislative power?

The short answer is of course “not.”

The complicated answer is that Congress grants the executive partiality in interpretations of federal statute and administration of laws and monies granted to the executive branch. In other words, the laws are ambiguous; therefore, the executive may decide appropriate means and remedies to the legal ambiguity in the execution of the law.

Recent historical examples of executive interpretative administration of the laws are President Obama’s unilateral change to American federal policy towards Cuba; the unilateral decision not to deport undocumented immigrants; decision to provide federal monies to cities protecting undocumented immigrants; decision of military action in Libya; unilateral decisions attacking enemy combatants; decision to change the timing of the Affordable Care Act’s individual and employer coverage mandates as expressed in the law; and environmental rule changes along with renaming mountains and federal protection for thousands of acres of land.

President Obama is not unique. President George W. Bush issued executive orders defining and executing enemy combatants; normalizing enhanced methods of interrogation; the use of an offshore military prison in Cuba; the creation of the federal PRISM spying program and the military right of extraordinary rendition.

The American people are rightfully wary of presidential power. Presidents who bypass constitutional governance act more like kings with monarchical legislative prerogative rather than presidents limited and constrained by the Constitution.

A feeling of kingship in America is unfortunately appropriate these days. Likewise the people are powerless if the laws are not enacted via representatives of Congress.

President Trump rightfully declared in his inaugural address that the transition of power must be in the returning of it to the people, rather than between parties, presidents, and representatives.

However, can he succeed in re-establishing the power of the American people without using executive order to bypass the crony corruption of the establishment he is waging war against? We might hope so, but doubt is understandable.

Executive legislative prerogative is more and more governing our nation and therefore diminishing the Constitutional doctrines of separation of powers and the powers of Congress.

Our Founders warned us of this likely outcome of “king-like” presidents. Thomas Paine famously wrote in his “Common Sense:”

“Where is the king of America … he doth not make havoc like (that) Royal Brute of Britain?”

And his answer was, of course, not the president. Rather, he concluded:

“The law is King in America … but lest any ill use should afterwards arise, let the crown … be demolished and scattered among the people.”

Another American patriot, Patrick Henry, wrote in response to the draft of Article II in 1787:

“The yoke (of executive power) will so puzzle any American … (and) will forever endure leaving the burden and loss of Liberty an eternal strife for Americans.”

Our federal Constitution was written to protect liberty while limiting the power of government with necessary national powers. Our Constitution does not grant monarchical legislative prerogative, cloaked as executive orders, in the executive branch.

As citizens we must always remain vigilant to the abuse of power against the American right of liberty.

Our presidents are not kings. Executive action should always be limited and in pursuance with the powers expressed in the Constitution. Legislators legislate the law and presidents execute the law.

Justin DePlato is an assistant professor of political science at Robert Morris University. His expertise is the American Presidency, Constitutionalism and the American Founders. His latest book is “American Democracy: Founders, Presidents and Enlightened Philosophers.” His other books include, “American Presidential Power and the War on Terror: Does the Constitution Matter?” and “The Cavalier Presidency: Executive Power and Prerogative in Times of Crisis.


The views of contributors are their own and not the views of The Hill.

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