Executive Orders

“The contest for the ages has been to rescue liberty from the grasp of executive power.” Daniel Webster

With all the news about executive orders, you will not find anything in the US Constitution about them. What you will find in the constitution is that the executive branch exists to enforce the laws, not to create them. It is clear from the records of the times, principally the Federalists Papers, that after just having successfully revolted against a monarchy, people were very distrustful of anything to do with an executive in government. In fact, the Articles of Confederation did not provide for one but did vest administrative powers with Congress. The Founders’ concerns with executive authority were well founded as history has shown.

From the beginning the president communicated with those in the executive branch through directives, or orders, for those in that branch of government; since the president was the commander-in-chief of both the military and the administration, you obeyed such orders because they came from your boss. However, that was not the case for those in the other branches of government, or for the people. Making laws, or adjudicating the constitutionality of laws, are powers not vested in the executive branch as the separation of powers is a constitutional foundation.

Over time, presidents have attempted to make law with their executive orders, unconstitutionally but unfortunately at times successfully. FDR was the biggest abuser of executive orders, issuing a record 3,721 of them, such as funding the Manhattan Project, the mass incarceration of Japanese Americans, the confiscation of American’s gold, and various orders creating new government departments. There have been presidents who issued executive orders that are considered morally imperative, such as Lincoln with the Emancipation Proclamation, Truman with the desegregation of the US military, and Eisenhower employing the National Guard for school desegregation; while they all had the best of intentions, they should have been executive proposals for bills to become laws, which soon thereafter was the case. The danger of any executive order circumventing the role of Congress as the legislative branch creates a slippery slope that gave us Truman barring gays and lesbians from government jobs, Ford pardoning Nixon, and Bush creating the department of Homeland Security.

This practice has manifest itself by degrees, starting with the revolution known as “Jacksonian Democracy”, a clear contradiction in terms given Jackson’s relentless assault on the constitution as if he were king; it progressed to the point that should the authors of the US Constitution and the Federalist Papers see what the executive branch has evolved to today, they would hardly recognize the government they created. This slow malignant growth of the executive branch to a near despotic level illustrates a revolution that Orwell spoke to in 1984 when he wrote that “Power is not a means, it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.” Some of the best historical examples of this in the early 20^th century were in Russia, Spain, Germany, Japan, and Italy, none of which ended well.

More recently Trump issued 220 executive orders, and Biden 353; in some cases, legal challenges have reached the Supreme Court, and some have been rejected. There are also cases where presidents have revoked a predecessor’s executive orders with their own, such as Ford with FDR’s gold confiscation, and Biden with Trump’s immigration orders; this creates a political war of pens, as issuing your own executive order revoking past executive orders does not make either anymore constitutional, even if done with good intentions.  Recently I had a discussion with a UK libertarian who maintains that the only difference between the UK monarchy and the US presidency is one king is hereditary while the other is elected. He quoted F. A. Harper with “It is of little importance whether a dictator gained his power by accident of birth, by force, or by the vote of the people.” I’m still working on a rebuttal; what I’m hoping for is that the Supreme Court gets a case that provides the opportunity for a ruling that any presidential order that attempts to create law is unconstitutional, and therefore null and void.

The constitution makes clear that only Congress can declare war, but that did not happen in the case of either the Korean or Viet Nam wars. Then we have the War Powers Act of 1973, which created the guardrails for the executive branch regarding military action; it does not appear that it worked out very well as Congress did not issue a Declaration of War against Iraq, Afghanistan, Syria, Sudan, or Libya. The US military interventions in all those “conflicts” were based on political agendas and manipulations to circumvent constitutional requirements; abiding by them would have prevented many US casualties and those of the civilians of the countries we were supposedly helping.

Many presidents have used as justification for their unconstitutional behavior that they were acting under the duress of a crisis, as if an emergency relieves them of their oath to preserve and protect the constitution. Americans are presented with a choice of the lesser of two evils this coming November between two of the most flagrant recidivists of constitutional violations; one of these two grifters will get elected, or in other words, we’re guaranteed to get evil. Both Biden and Trump are products of a political environment of fear mongering with dire warnings about what will happen to our “democracy” if their opponent is elected. Both Biden and Trump talk about the orders they will enact to undo the harm the other has perpetrated. We got to this dangerous place because of partisan politics that has produced so much fear, something that Aristotle so concisely defined as “Fear is pain arising from the anticipation of evil.”

Fear is a political tool of tyrants to convince people that they need power to protect them from evil; unfortunately, history has shown that this can be effective, especially in volatile times. Americans need to understand this, and what Orwell said in 1984: “A people that elect corrupt politicians, imposters, thieves and traitors are not victims, but accomplices.”