Retroactive from 1862, not until 1907 were Executive Orders (EO’s) published in the Federal Register. And today, over 15,000 EO’s have been issued and published. But, just what are they, and, more importantly, are they constitutional?
The short of it is that EO’s, aka signing statements, presidential determinations, presidential memorandums, presidential notices, presidential orders, have inexorably led to legally binding presidential directives substantially affecting not only executive administrative matters, but both national and foreign policy as well.
With that in mind, the greatest fear of the founders was the establishment of a powerful central government and a strong political leader at the center of that government. They were determined to prevent the rise of monarchs, potentates or czars. Their plan was for a voluntary association of sovereign States in which power emanated from the States and the People, not from an overweaning central authority. For the framers and ratifiers, Congress, properly checked by both the Judiciary and the Executive, was intended to be THE focus of federal power and THE source of federal law.
Art I, Sec 1 of the US Constitution concisely and unambiguously provides that “all legislative powers herein granted shall be vested in a Congress…” In sharp contrast, Art II specifically outlines Executive powers and duties, none of which include legislating in any form. And to checkmate an overreaching Chief Executive, Art II also provides for the impeachment and removal of not only the Chief Executive, but of any and all officers comprising the Executive Branch.
Originally intended to soley direct executive departments how to faithfully implement laws legislated by Congress, since the early 20th century EO’s have morphed into imperial edicts which have little real hope of being invalidated by an unaccountable Supreme Court or overridden by a permissive Congress. In fact, in all our history only two EO’s have been successfully invalidated/overriden: Truman’s 1952 order to place all steel mills under federal control was invalidated by the Supreme Court, and a Clinton EO in 1995 which attempted to prevent the federal government from contracting with organizations that had strike-breakers on the payroll was overturned by Congress. Thus, despite their being in flagrant violation of the Constitution, while EO’s can be voided, to do so is, indeed, acutely challenging and, therefore, rarely accomplished.
Worth noting are those less appealing and unsavory EO’s such as Franklin Roosevelt’s order to remove all Japanese & German Americans from military zones, and to relocate Japanese Americans to internment camps proceeded unchallenged by either Congress or the Supreme Court.
So, how can Congress, the People’s House, void an EO, assuming Congress were so inclined?
First, Congress must have the political will, rectitude and the numbers to effectively countermand EO’s. That said, as it plays out now if Congress disapproves an EO, it can withhold funds. But, to do so requires enactment of a law which must pass muster both in the House and the Senate. The rub: if the law intended to countermand an EO is vetoed by the President, to override that veto requires a 2/3 vote, a super majority, in both chambers of Congress, clearly a politically daunting task indeed. And, of course, there is the laborious process of impeachment and removal of the offending President to remedy the executive overreach. But, again, removal would require a 2/3 majority in the Senate, a very unlikely scenario.
The alternative means of voiding an EO is if a suit is brought against the President before the Supreme Court and the court invalidates the EO, again a highly unlikely scenario. And, as we all know, the Supreme Court, which has proven to be far less than faithful to the meaning and intent of the Constitution, is often on the wrong side of constitutional questions. Seemingly guided by Chief Justice Hughes’s arrogant and insidious assertion in 1941 that “we are under a Constitution, but the Constitution is what the judges say it is”,the court’s unelected judicial oligarchs–and, yes, judicial legislators–have, over the years, proven to be unreliable defenders of the Constitution.
It should be remembered that Roger Sherman, a principal among the original framers, held that the president should not have legislative authority; that his job was to execute the laws and nothing more: “The Executive Branch is nothing more than an institution for carrying the will of the legislature into effect”.
Similarly, another leading framer, James Wilson, asserted that “the only powers strictly executive were those of executing laws, appointing officers, not appertaining to, and appointed by, the legislature.”
And upon the advice of fellow framer Charles Pinckney, none other than James Madison asserted that the president should have “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers—not legislative or judiciary–in nature.”
In effect, the framers insisted that the Chief Executive could not propose or make legislation under any guise, but was absolutely restricted to executing those laws passed by Congress. Crystal clear, but grossly ignored by today’s power elite. With the “help”of a habitually unfaithful Supreme Court, a corrupted Congress, and a complacent citizenry, is it any wonder we’ve strayed so far afield from the Constitution?
So, in the absence of a President who might happen to be personally inclined to faithfully adhere to the Constitution, we have little defense against a tyrannical Chief Executive. Thus, if the Supreme Court and Congress are unwilling to restore constitutional order by affirmatively re-establishing the doctrine of separation of powers at the federal level, then, ultimately, and in accordance with the 10thAmendment, it falls to the States and/or the People to take appropriate action to remedy the breach. As James Madison asserted, “…the people have an indubitable, unalienable, and indefeasible right to reform or change their government whenever it be found adverse or inadequate to the purpose of its institution.”
In closing, our now tattered and barely recognizable republic which was originally held securely in place by a carefully crafted system of checks and balances and separation of powers is no more. To believe otherwise is foolhardy.
Since TR, with his 1006 unchallenged EO’s, Woodrow Wilson’s 3,723 EO’s and Obama’s in excess of 900 very frighteningly Orwellian EO’s, the imperial presidency has clearly taken on a life of its own, unchecked and tyrannical, effectively scuttling any similarity to genuine republicanism. In truth, all that holds this sham of a republic in place is the President’s appearance of faithfulness to the constitution and a pervading hope that the President, whomever he or she might be, will somehow kindly opt not to overstep his/her constitutional authority. But, if history is any authoritative guide, such self-inflicted delusion and misplaced confidence can only lead to national disaster.
Going forward, patriots everywhere had best pull out all stops to usher in a Constitution-first conservative takeover in DC. But, that’s only half the battle. Once elected, we must hold their corruptible feet to the fire to ensure a full restoration of our now mortally wounded constitutional republic, failing which only the dissolution of these united States by whatever means, violent or peaceful, is most certainly inevitable.
To be clear, EO’s aren’t a Progressive or Republican problem. EO’s are an equal opportunity contagion. Both parties, all modern presidents, Congress, the Supreme Court, and, yes, We the People are culpable. If we deserve better, we will beget better.