On his first day in office, newly-inaugurated President Joe Biden signed 17 executive orders. In his first week, he signed 37. In the same period of time Donald Trump signed four executive orders, Barack Obama signed five and George W. Bush signed zero. Perhaps Biden is attempting to maximize his output while he is still cognisant. Either way, Biden’s efforts are the culmination of a century-long effort by American presidents to ignore the constitution, usurp the legislature, and govern by executive fiat. This worrying trend, largely instigated by progressive presidents, allows the executive to bypass our system of checks and balances, unilaterally impose their will on Americans without the consent of their duly-elected representatives, and avoid the hard work of building legislative compromises that can result in the kind of broad public support (or at least acceptance) necessary for enduring solutions to important issues. Interestingly enough, there is no constitutional clause that reads: “if laws are unable to be passed through the normal workings of government, progressive presidents shall reserve the power to do whatever the hell they want.”
Interestingly enough, there is no constitutional clause that reads: “if laws are unable to be passed through the normal workings of government, progressive presidents shall reserve the power to do whatever the hell they want.”
There is also no constitutional definition of an executive order. While the opening clause of Article II declares that “the executive power shall be vested in a president,” virtually the only specific abilities granted to the executive are to lead the armed forces, request advice from his cabinet members, grant pardons, and make appointments. There is no clause that allows the president to unilaterally create law by decree. Even Alexander Hamilton, the Founding Father with the most expansive view of executive power, did not suggest the autocratic tendencies on display today. In Federalist 70, Hamilton makes the case for an “energetic” executive. This energy required “first unity, secondly duration, thirdly an adequate provision for its support, fourthly competent powers.” While certainly open to interpretation, Hamilton’s prescription for “competent powers” doubtlessly did not include a mandate for Joe Biden to rewrite the rules to suit his personal whims.
Barack Obama took a similarly cavalier attitude toward the role of the executive. Rather than put up with the gridlock that the Founders specifically devised, Obama insisted that “I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions.” Progressives would be aghast at this. “But no, Professor Obama used to lecture in constitutional law at UChicago,” they might insist “Surely he knows more about it than us peasants.” Alas, Obama’s view of what the Constitution permits has shifted with political whims. In 2014, for example. Obama signed an executive order intended to unilaterally grant legal status and work authorizations to five million people unlawfully present in the United States, simply because Congress had not passed a bill that he favored. This order followed Obama’s repeated insistence that he lacked the authority to issue such an order: “The problem is that I’m the President of the United States. I’m not the emperor of the United States.” It is no surprise that the Supreme Court upheld an Appellate decision striking down Obama’s order.
Under the Biden regime thus far, this trend has not just accelerated, but gone into warp speed. On the campaign trail, then-candidate Biden pledged to avoid “things you can’t do by executive order unless you’re a dictator. We’re a democracy. We need consensus.” What a difference a year makes. As one of his first acts as president, Biden signed an executive order directing all publicly-funded schools to allow biological males to compete in womens’ sports, among other controversial actions. Certainly this particular order lacks the broad consensus necessary to an enduring policy change, as evidence by the challenges immediately raised by leading advocates of girls’ and women’s rights in sports – who petitioned Congress to address this issue through legislation!
Americans are meant to be led by a representative government that is accountable to the people through regular elections, as is enshrined in our founding charter.
Americans are meant to be led by a representative government that is accountable to the people through regular elections, as is enshrined in our founding charter. Congress is supposed to pass laws that best represent the will of the people, and “gridlock” – an unfortunately pejorative term for the process of negotiating workable compromises – is an integral part of that process. If executive overreach continues, then every president will make it a point to undo as many of their predecessors’ unilateral policies as possible. Inaugurations will henceforth be marked by a ceremony, a luncheon, a parade and a tsunami of unilateral executive orders that rewrites federal law “with the stroke of a pen.” National consensus will never be reached, and the certainty and progress that such consensus allows will never be achieved. Unilateral, broad executive action not only threatens our separation of powers, but also forsakes the “healing and unity” that Biden and others claim to seek.
