Stop Executive Order Mania

In the first nine days of his presidency, Joe Biden has issued 25 executive orders, eight presidential memoranda, one each of presidential determinations, proclamations, orders, notices, sequestration notices, and national security memoranda – for a running total of 39 presidential actions, four per day. At this rate, he will have issued 5,840 by end of term. 

Excessive is one word.  Anti-democratic is another.  As the New York Times, a liberal cheerleader, noted: “This is no way to make law … These directives … are a flawed substitute for legislation.”  Executive action is “not meant to serve as an end run around the will of Congress.”  More, “by design, such actions are more limited in what they can achieve than legislation, and presidents who overreach invite intervention by the courts.”  See, https://www.foxnews.com/media/biden-white-house-cries-foul-after-new-york-times-editorial-board.

True, but the paper should have gone further, as legal scholars know.  Executive action cannot “make law,” just direct executive agencies on implementing statutes, consistent with our Constitution.  Even then, executive action can overstep – if it upends legal or equitable principles, including reliance on existing laws – or exceeds Article 2, section 1, clause 1 of the Constitution.

Accordingly, when President Harry Truman used executive action to seize private steel mills during the Korean War, the Supreme Court rebuffed him.  Neither a strike nor national security justified seizure. https://en.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer.

Today, we face an onslaught of executive action.  I would say “flurry,” except we are in a “blizzard.”  Some actions are superficial and sanctimonious – like glibly condemning prejudice against “Asian Americans and Pacific Islander,” conclusory and pandering – others more serious, like opening US borders to illegal entrants, halting criminal deportations, ending relationships with Mexico to protect US sovereignty, bringing major oil production, transshipment, and energy independence to a halt, thus ending thousands of US jobs and shocking Canada.

Biden has signed so many orders in so few days, triggering public and private lawsuits, most Americans have no idea what he has done – or what it means. 

What it means is that we have a White House willing to disrespect American civic tradition, legislative process, and established limits on executive authority.  They have opted to bypass the tedious but necessary process of “making laws” through negotiations, buy-in, and winning over critics.  They have intentionally interpreted the Constitution to award powers they do not have.

To be specific, President Biden has pushed actions with no attempt at legislative coordination or constitutional justification, including actions aiming to:

• “Advance racial equity” by distributing federal money and opportunities to a list of racial, ethnic, and “underserved” voting blocks, revoking President Trump’s EO “combatting race and sex stereotyping” and commission on baselining American history, called the “1776 Commission.” (EO 13985).  See, https://en.wikipedia.org/wiki/Executive_Order_13985.
• Changing the “decennial census” to include illegal aliens (or inhabitants “without regard to immigration status”) for federal resource distribution and “apportioning congressional seats” (EO 13986).  See, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-ensuring-a-lawful-and-accurate-enumeration-and-apportionment-pursuant-to-decennial-census/.
• Instituting federal mandates on COVID-19, while ironically saying “nothing we can do” to change virus trajectory, thus disavowing prior “secret plans” to end the crisis and lockdowns.  See, e.g., https://www.foxnews.com/politics/biden-nothing-we-can-do-comment-contrasted-coronavirus-campaign-promises, as well as EO’s 13994 to 14003.  See, https://en.wikipedia.org/wiki/List_of_executive_actions_by_Joe_Biden.
• “Restoring science to the climate crisis,” which translates to ending the Keystone Pipeline, arctic and offshore drilling, US energy independence, and thousands of US jobs – no regulatory or legislative review.  See, https://en.wikisource.org/wiki/Executive_Order_on_Protecting_Public_Health_and_the_Environment_and_Restoring_Science_to_Tackle_the_Climate_Crisis.
• Revoking Trump’s EO’s “Concerning Federal Regulation,” specifically rolling back reduced insulin prices (thus choosing pharmaceuticals over diabetic Americans), reducing prescription drug prices (EO 13771, “Reducing Regulation and Controlling Regulatory Costs”), killing regulatory reform (EO 13777, “Enforcing the Regulatory Reform Agenda”),” and reversing EO’s 13857, 13891, 13892, and 13893, insisting on federal accountability, transparency, rule of law, and spending constraints via PAYGO process. https://en.wikisource.org/wiki/Executive_Order_on_Revocation_of_Certain_Executive_Orders_Concerning_Federal_Regulation.
• Pushing “transgender individuals” in military and Coast Guard, absent any additional departmental or agency readiness feedback, regulatory or legislative review.  See, https://en.wikisource.org/wiki/Executive_Order_on_Enabling_All_Qualified_Americans_to_Serve_Their_Country_in_Uniform.
• Compounding America’s prison overcrowding and crime management crisis, by summarily ending federal private prison management, through EO 14006.  See,  https://en.wikisource.org/wiki/Executive_Order_on_Reforming_Our_Incarceration_System_to_Eliminate_the_Use_of_Privately_Operated_Criminal_Detention_Facilities.
• Upending national security priorities, China and Russa to Iran and NK, by “putting the climate crisis at the center of US foreign …and national security policy,” EO 14008. See, https://en.wikisource.org/wiki/Executive_Order_on_Tackling_the_Climate_Crisis_at_Home_and_Abroad.

Beyond these EOs, Biden issued others, from expansion of Obamacare (unnumbered EO) to pushing abortion funding “at home and abroad” (unnumbered “presidential memoranda”), “preserving and fortifying DACA” (an Obama EO that federal courts prevented Trump from managing via EO) to revising US housing, tribal, regulatory, and immigration policies.

Breathtaking in scope, audacity, and constitutional usurpation, these orders – with dozens of others – are executive action of a type and quantity not seen in decades, even in wartime.  

While subject to judicial review and reversal – one has already been reversed – a broader issue is afoot, executive hubris.  The Supreme Court – and most Americans – do not go for that sort of thing, rash presidential action aimed at taking rights, killing jobs, issuing mandates, and flouting established practice. See, https://news.yahoo.com/federal-judge-blocks-biden-order-202428150.html.

The US Supreme Court recognized limits on executive power in Youngstown, Justice Hugo Black holding that “[i]n the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”  No president can “make” laws. So bold and belligerent are different. Eager and illegal are different. Constitutional and unconstitutional are different. See,  https://constitutioncenter.org/blog/youngstown-steel-the-supreme-court-stands-up-to-the-president/.

The Biden White House should take note.  The Courts will, and American People are. If the New York Times is grousing, you can bet much of America is. Time to review the Constitution, listen to America, and stop runaway executive orders.