NO MORE BS: Executive Orders vs. Legislation

Image - Eagle & FlagA 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Where executive orders are concerned, until revoked or superseded, the order remains in effect.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.

LookNow, 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.

DutyImportant 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:

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.

LinkedIn ImageIs 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.

3-direectional-balanceWhat 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
The author holds no claims for the art used herein. The pictures were obtained in the public domain, and the intellectual property belongs to those who created the images.
All rights reserved. For copies, reprints, or sharing, please contact through LinkedIn:
https://www.linkedin.com/in/davesalisbury/

A Failure to Listen – The Hinge Upon Which Governments Fail or Thrive

AmidalaPadmé in “Star Wars: Revenge of the Sith” makes a powerful statement about the galactic war being fought, “This war represents a failure to listen.”  While Padmé insists that diplomacy is required, this is incorrect.  Diplomacy is the political game of charades, with smoke and mirrors of intelligence games.  Diplomacy fails because each sides agenda is more important than the words being spoken, which is why so much of the work done in diplomatic circles is done in “informal settings.”  Diplomacy fails to listen.

America is a Republic, rather America is a Constitutional Republic, where the rule of law as written is the supreme law of the land to which every citizen is bond.  In the world there are democracies, where the mob rules.  There are socialist governments where the fat of government is forcibly taken through taxation and doled out by the micro-ounce to those selected to win or lose.  There are still communist governments and monarchies where the leaders are pampered to the detriment of the citizenry.  Unfortunately, between these extremes are a host of other government types who borrow pieces from many government theories thinking they can escape the negative consequences of those government methodologies.

Yet again we find Padmé’s counsel appropriate and timely.  Before war begins, there is always a refusal to listen.  For example, it is historically accurate that the US Government had signs and warnings of the impending Japanese Attack on Pearl Harbor, but the US Government had stopped listening to adverse advice, and America paid dearly for that failure to listen.  Worse, war came, and hundreds of thousands paid in blood for that failure to listen.

Emotional OutburstThe Russians thought diplomacy was the appropriate approach to Nazi Germany; and Nazi Germany made the Russians pay in blood for the failure of the government to listen.  Even though history has regularly taught the Russians not to engage in diplomatic solutions with Germans.  This was hardly the first fight between Germany and Russian troops and governments.  Failure to listen, and the citizens suffered tremendously to overthrow both Nazi Germany and then the chains of Communism.

Consider again the relationship between Mexico and the United States, the Mexican Government has never been an ally or friend to the United States; yet, the governments refuse to listen to common sense, and throughout history, those people hellbent on destroying America have always found safe passage and refuge in Mexican borders.  History relates that the failure of governments to listen, is the root of the United States and Mexican sour relationship.

Cuba has suffered under Communism and Castro’s poor ideas because government leaders refused to listen.  Venezuela fell because the governments in power refused to listen to each other, bribed the electorate, stole elections, and now a once mighty nation is starving while their government leaders sit in luxury.  How many times will this story have to repeat before the citizens of governments learn, we must be able to speak freely, and listen appreciatively, if we are to survive, grow, and prosper.

For too long, the powers of the world who consider themselves above the law have worked to keep the citizens separated into fighting factions.  Every conceivable line that can be drawn to distract, separate, denigrate, and deride has been drawn, and the only people winning in this are those drawing the lines.  Republicans against Democrats, Homosexuals against Heterosexuals, religions aplenty all against each other, state to state, NFL/NHL/NBA/NASCAR and so much more adding confusion and noise to the problem and further separating people along ambiguous lines to keep them from talking and listening appreciatively to each other.

Nuclear FamilyHow many families cannot have a meal without choices of lifestyle and hostility ending conversation over a failure to listen?  Can a Chicago Bears Family survive long with a fan from Minnesota or Wisconsin?  What about the other choices people make in their lives, religious flavor versus another religious flavor; this simple line has been destroying nations since history began being recorded.  What do we see in the Old Testament; governments repeatedly failing because they stopped listening.

Please note, this is not a call to drop standards, accepting everything, and singing “Kumbaya,” while Rome burns, and society dies an ignominious death.  This is a call to cease destroying society and begin listening first!  Why were the riots this past summer so brutal and destructive; first the mob stopped listening, then they stopped talking, and then they started fires and terrorizing society.  Why did they stop listening; because they assumed no one heard them and cared enough to shift the paradigm, (patterns of thought and action all based upon selfishness and pride).

Darth and AnakinWhy did Anakin stop being a Jedi; he stopped listening, then he selectively listened, he began acting as a terrorist, and then he became Darth Vader.  This plot line of refusing to listen is so prevalent and obvious because humans continue to make the same mistake.  When we stop listening to each other, we stop talking; when we stop talking, we become overwhelmed by our own echo-chambers, and create the chaos that ultimately destroys our lives, our dreams, and our futures until we begin to lay aside petty differences and listen to each other again.

Listening has four distinct levels:

    • Inactive listening – Hearing words, seeing written communication, zero impact mentally. Mostly because your internal voices drown out the possibility for communication.
    • Selective listening – Hearing only that which confirms your own voices, opinions, and biases. While others are speaking, you are already forming your response.
    • Active listening – Show the other person you are paying attention, engage with meaning in a reply. Focused upon removing barriers to get your point across.
    • Reflective listening – Paying attention to intent and content, reducing emotion, two-direction as both parties are engaged in achieving mutual understanding.

Social Justice WarriorListening appreciatively is reflective listening, where we commit to listening with the intent to achieve mutual understanding.  Essentially, to improve government we must listen first with the intent to reach mutual understanding, before we ever open our mouths to speak.

The following are some launch points for improving listening in society:

      1. Understand your desire.  Know that your desire choices are determining your destiny.  If your destiny is not one you appreciate, return to desire, make different choices.
      2. Practice mental preparation based upon previous situations, to make different choices.  Listening is a voyage of discovery to reach a mutual understanding, but mental preparation is key to safely reach the destination.  Prepare, use a mirror, practice until what currently feels alien becomes familiar.
      3. Reduce emotion.  The principle of empathy and sympathy are destroying listening and only reflect the internal voices.  The volume of internal voices is silencing the ability to reflectively listen, necessitating the need to fake actively listening.
      4. Listen as you would have others listen to you.  This is an adaptation of the “Golden Rule” and remains applicable as a personal choice.  How you choose to listen will determine your destiny.
      5. Listening remains the number one tool you control and has application to written communication and verbal communication channels.  Body language is a non-verbal communication channel that can be heard as well as seen.  How are you communicating non-verbally which is interfering with your written and verbal communication attempts?

Leadership CartoonListening is a choice.  Listening is hard.  Yet, many people have pointed out that we have two ears and one mouth so we can listen twice as often as we speak.  Choose to reflectively listen, choose to reach a mutual understanding, watch society change.  It has been said that the US Constitution will hang by a thread, rule of law and the American Republic hang upon our decisions to listen appreciatively to each other and to stop allowing petty divisions to destroy ourselves, our families, and our American society.

© Copyright 2020 – M. Dave Salisbury
The author holds no claims for the art used herein, the pictures were obtained in the public domain, and the intellectual property belongs to those who created the pictures.
All rights reserved.  For copies, reprints, or sharing, please contact through LinkedIn:
https://www.linkedin.com/in/davesalisbury/