Executive orders are blowing up the Constitution

OPINION:

Joe Biden, in his final days of presidency, signed a couple executive orders banning offshore drilling on almost 630 million acres of U.S. property and waters. Donald Trump, in the lead-up to his new term as president, told Republican senators he wants to write, sign and enact 100 executive orders shortly after inauguration.

Enough of the executive orders. They’re tearing apart the Constitution.

They’re also sidelining Congress and allowing legislators to skirt accountability, even while stripping them of power.

Executive orders have been part of America’s governing system from Day One. Even George Washington issued them. But “the form, substance and numbers of presidential orders have varied dramatically in the history of the US presidency,” The American Presidency Project wrote.

Whereas George Washington issued eight, Franklin D. Roosevelt issued 3,721 — still, the highest number signed by any American president. Whereas Ronald Reagan issued 381, Barack Obama issued 276 — but on substance, it was Obama who was roundly criticized and slapped by courts for abusing his executive authorities.

As Sen. Chuck Grassley said in 2014: “In his state of the union address … Obama announced what he called a year of action. Armed with a pen and a phone, he promised to take action where Congress wouldn’t. … The president is now threatening to implement a mass amnesty from our immigration laws by executive fiat.”

He did.

The courts struck back. 

“Supreme Court DAPA Ruling a Blow to Obama,” Migration Policy wrote in 2016.

“Supreme Court Tie Deals Blow to Obama’s Immigration Order,” The Texas Tribune wrote in 2016.

In other words: A president is not a king.

Executive orders should be used sparingly, if at all.

America’s early presidents used restraint when issuing orders from their respective White Houses. Washington’s eight was followed by one from John Adams; four from Thomas Jefferson; one from James Madison; one from James Monroe; three from John Quincy Adams; and 12 from Andrew Jackson. It wasn’t until Franklin Pierce came along that the orders hit the then-high of 35; following, James Buchanan signed 16 and Abraham Lincoln, 48. Andrew Johnson signed 79 — Ulysses Grant, 217 — Rutherford B. Hayes, 92 — James Garfield, 6 — Chester Arthur, 96. After Arthur, here would never be a time when a president would issue fewer than 100.

Here’s the problem with executive orders, though.

Here’s why Americans should care.

Article One of the Constitution sets Congress as the legislative body, and tasks lawmakers with the power and authority — not the president — to create laws. That role has been considerably watered through the years — and not always over the objections of lawmakers. After all, if a president enacts an agenda a lawmaker wants passed but can’t get passed because of the will of the people, well then, that’s good for the lawmaker, right? It’s a case of legislators booting to the executive — and then quite possibly to the judicial — and all the while maintaining a tax-paid position of authority and the ability to claim “not my fault!”

Judges, meanwhile, have similarly emboldened the power of the executive by failing to reel in the president’s power when orders were brought to court for review.

“In the late 1930s,” Federal Judicial Center wrote, “as the Supreme Court began to uphold New Deal economic regulations similar to those it had previously struck down, it also embraced a more deferential approach to executive action by adopting ‘rational basis’ review. Under this standard, an executive order would survive a due process challenge if it was rationally related to a legitimate governmental purpose.”

That’s different from the previously applied “reasonableness standard,” which had required evidence to be submitted in court to show valid reasons for the executive order.

Let the broadening of presidential powers begin.

No wonder modern presidents issue hundreds of orders over the course of their four-year terms — and hundreds more in their second four-year terms. It’s getting to the point where Congress is practically inconsequential.

And therein lies the danger.

If Americans want to keep a government that’s limited in powers, then it’s crucial to keep a government that’s transparent and accountable to the people. If legislators don’t have to take votes on matters that can be publicly recorded for the people to debate and decide as worthy, and if presidents don’t have to do the hard work of convincing legislators to support their agendas — if presidents don’t have to do the public relations battles to win the support of the people — then in the end, what role do the people play in government? 

Voting will become as inconsequential as the legislative branch.

Presidents will become dictators and tyrants.

The Constitution will become a governing document in paper only. All its meaning and principle and force of law will be stripped; its words — just another fine recollection of the good old days of Founding Father history.

When Trump entered office in 2017, he quickly put pen to paper and executively ordered away the devastations of the horrible Barack Obama agenda. 

When Biden entered office in 2021, he quickly put pen to paper and brought back much of Obama’s legacy — and then some.

Sometimes, when a pendulum has swung so far into the abyss of the left, it requires a speedy course correction just to get it back to center — just to get it back to a neutral starting point. 

This is where executive orders come into play for the Trump administration. They will be used to eradicate the Marxism that’s dogged the Democrat Party for years now, and to blow away the very unconstitutional agendas and policies the left has happily shoved into existence, over the objections of freedom-loving patriots.

But at a certain point, pragmatic politicking has to take backseat to constitutional principles.

Our freedoms demand it.

Americans cannot maintain a government that’s subservient to the people if the members of the governing bodies won’t observe their respective, limited roles defined in the Constitution.

• Cheryl Chumley can be reached at cchumley@washingtontimes.com or on Twitter, @ckchumley. Listen to her podcast “Bold and Blunt” by clicking HERE. And never miss her column; subscribe to her newsletter and podcast by clicking HERE. Her latest book, “Lockdown: The Socialist Plan To Take Away Your Freedom,” is available by clicking HERE  or clicking HERE or CLICKING HERE.