NO MORE BS: Executive Orders vs. Legislation

A republic is messy!  I have made this claim before on this blog, and I will continue to affirm and support the messiness that occurs in a republic, especially this our constitutional republic!  A republic requires politicians from both extremes on an issue spectrum to come together somewhere between the two extreme points for a compromise.  Please remember, a good compromise leaves everybody unhappy, but a good compromise is fair and the best way to govern.  The messiness of governing takes time and the mess and time protect the interests of the population!

The problem is that executive orders have become the tool of tyranny to make an end-run around the Constitution, stripping the legislative branch of its authority.  Just like when a legislator’s support is purchased with pork-barrel spending, passing legislation with purchased support or pork also does an end-run around the Constitution and robs the taxpayer to enrich the politician.  Both Executive Orders and Pork Barrel Legislation are immoral and unethical but have become accepted practice based upon historic legal precedence and the distorted minds of those in political power.

What is an Executive Order?

An executive order is a means of issuing federal directives in the United States, used by the United States President who manages the federal government’s operations. The legal or constitutional basis for executive orders has multiple sources; however, the executive order is limited to the executive branch of government and the executive branch’s governmental operations.

Where executive orders are concerned, until revoked or superseded, the order remains in effect.  For example, Executive Order 9006 – Certifying the Territory of Hawaii as a Distressed Emergency Area.  The executive order was signed within 30-days of Pearl Harbor being bombed, stripped American Citizens of their rights, their property, their freedoms, and punished them.  Fred Korematsu argued before the Supreme Court that his rights and those of other Americans of Japanese descent had been violated by Executive Order 9006.  The Supreme Court ruled 6-3 in favor of the government, saying that military necessity overruled those civil rights.  Here is the rub; there is no Congressional Legislation supporting this illegal seizure, the forfeiting of ownership, or Congressional Authority tied to the Executive Order; worse, there was no military reason to justify issuing the Executive Order.

Now, I get it, the Empire of Japan had just bombed America, and a day of infamy had descended.  The legal rights of Americans, regardless of their birth heritage, were stripped from them, not by Congressional Action signed into law by the President, but through an Executive Order.  Worse, this order has never been rescinded, and who knows what skullduggery continues to occur under this Executive Order.  As a historical sidenote, there was no justification for Executive Order 9006 – Certifying the Territory of Hawaii as a Distressed Emergency Area.  No military rationale, no social justification, and yet, this Executive Order caused tremendous illegal and unconstitutional actions in the island of Hawaii, which spread to all of America and saw many Japanese heritage Americans stuffed into internment camps.  Losing property, lives, livelihoods, and never receiving any compensation.

Do you need more proof that Executive Orders are in effect long after they should have been rescinded?  Look no further than Chief Justice John Roberts, who wrote in his majority opinion in the 2018 case of Trump v. Hawaii that the Korematsu decision was explicitly repudiated.  In non-legal speak, Chief Justice Roberts refuses to be associated with Executive Order 9006 and the earlier court case, Korematsu v. Roosevelt decision, but did not rescind the order, make null the order, or demand the order be superseded.  The cravenness of Chief Justice Roberts to right a historical wrong is beyond contemptible!

What is legislation?

From Webster, we learn that legislation is the action of legislating “specifically: the exercise of the power and function of making rules (such as laws) that have the force of authority by their promulgation by an official organ of a state or other organization.”  The executive branch must sign these legislative actions before they become of full legal force.

Are Executive Orders Legal?

Executive orders have been made legal, as the judicial branch of government has essentially told the legislative and executive branches to argue the problem out amongst themselves.  Now, legal scholars will nit-pick the heck out of what I am about to say, but since I am not a legal scholar, decide for yourself; here is my opinion and understanding.  Yes; executive orders are legal.  Insofar as they guide the executive branch in directing the executive branch’s affairs, and is not intended to control the citizenry or be the “law” under which citizens lose their rights and privileges.  But, as for application to the US Population as a whole, no!  No, executive orders are not legal because the executive order acts outside the executive branch’s domain and attempts to supplant legislation.

Important to note, broad powers were granted to the US President under Article II, Section 1, Clause 1 of the US Constitution. “The executive Power shall be vested in a President of the United States of America.” Sections 2 and 3 describe the various powers and duties of the President, including that “[the President] shall take Care that the Laws be faithfully executed.”  The judicial branch has granted significant leeway to the President to act.  When added to the powers Congress has consented to the President to run the executive branch of government, executive orders’ legality v. illegality remains a legal gray area.  Sometimes the President has been smacked down with their Executive Orders due to a stricter reading of the US Constitution. Other times a more lenient reading of the US Constitution and Congressional powers has allowed Executive Orders to stand.

The key to limiting Executive Orders is if the Congress considers an issue necessary enough to legislate.  However, do not be fooled; tremendous power is being wielded when a president sets their pen to paper and drafts an Executive Order.  Interesting to note, the lists of presidents with the most Executive Orders are as follows:

• • • 907 Executive Orders issued by Harry S. Truman
    • 1,081 Executive Orders issued by Theodore Roosevelt
    • 1,203 Executive Orders issued by Calvin Coolidge
    • 1,803 Executive Orders issued by Woodrow Wilson
    • 3522 Executive Orders issued by Franklin D. Roosevelt

Are Executive Orders the same as legislation?

Executive Orders state mandatory requirements for the Executive Branch and have the effect of law. Historically executive orders were issued with a law passed by Congress or based on powers granted to the President in the Constitution and consistent with those authorities.  However, since Pres. Clinton America has witnessed the exponential rise of executive orders to bypass the legislative branch and control law through executive fiat and not legislation.

For example, President Obama, where the Paris Environmental Accord was concerned, ran around Sen. Harry Reid and the Senate, issued an executive order. America was then obligated to the Paris Environmental Accord.  Under the US Constitution, the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur” (Article II, section 2). … The Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification [Emphasis Mine].  The Senate never ratified the Paris Environmental Accord, so President Trump was in his power to issue a countermanding executive order and remove America.  21 Jan 2021, Biden then issued another countermanding order and recommitted America to the Paris Environmental Accord.  Still making an end-run around the Senate and refusing the American people the opportunity to have a voice in the affairs of government, especially where costly environmental laws and obligations are concerned.

Is it clear that executive orders’ abuse is strangling America and creating chaos across the entire globe!  All because the politician currently in power refuses to engage in the correct and legal processes of conducting the people’s business, and all political parties are guilty!  The precedent for issuing Executive Orders controlling business outside the executive branch started with Pres. Abraham Lincoln when he made an end-run around a contentious Congress and issued the Emancipation Proclamation.  Not that the Emancipation Proclamation was not needed, not that it did right, not that it was not the exact tool at the precise time, simply that Congress refused, and the President acted through Executive Powers rather than Congressional Legislation.  Setting the legal precedence for the current abuses of Executive Orders in the last five presidents.  Six if you count the current sitting president who issued 15 Executive Orders on his first partial day in office as a “show of strength.”

Legal, yes; legal, no, is a gray area!  Not what the founding fathers intended when drafting the US Constitution.  Want to drop down a rabbit hole of incredible size and shape, look up old Executive Orders, read them carefully for the powers claiming their legality, and then look at recent legal decisions quoting those old Executive Orders.  Lawyers have a saying, “Bad cases make bad case laws.”  That saying is especially true where Executive Orders are considered.

In rule by Executive Order, there is a great caution.  Rule by executive decree is tyranny!  Making end-runs around the co-equal branches of government is a slippery slope that becomes easier and easier once begun upon.  A recent example of this is found in the Obama Presidency.  President Obama is on record claiming he could not issue executive orders to fulfill the wishes, hopes, and desires of the liberal few.  Then, a few short months later, after issuing a slew of Executive Orders, President Obama issued Executive Orders, flip-flopping like a boneless chicken breast, and granting the liberal few their hopes and wishes by executive diktat.

What I am going to put forward is not fearmongering but a need to awaken the American People to the dangers of rule by Executive Order.  The Emancipation Proclamation is an Executive Order.  If a President can remand or supersede any previous Executive Order, what is to stop a President from rescinding the Emancipation Proclamation?  Nothing!  The chaos caused by Executive Order rule in a Constitutional Republic is a danger that all people, of every political flavor, need to recognize and communicate to those in power to cease this abuse forthwith!

Those in power can only abuse the controls and restrictions placed upon the government through other governing tools.  Therein lay the protection for the American People and the risks to the American People.  Hence, the need to know, understand, and act to protect the government from overreach and freedom theft.

© Copyright 2021 – M. Dave Salisbury
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