Executive Orders

 

There's a lot of chatter on social media about how many EOs Biden is producing, so I thought this might be an opportune time to talk about Executive Orders and their effect.

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
      — U.S.Constitution, Article I, Section 1

Pretty plainly, laws come from Congress.  How to explain, then, the off-handed remark by Paul Begala, an aide to President Clinton:

"Stroke of the pen.  Law of the land.  Kinda cool."

on how Clinton was going to use EOs to make happen what he wanted to happen.  The explanation is that Begala got it wrong, although most Americans, being not-too-well-versed in their own Constitution, probably didn't realize it.

Executive Orders cannot be law, because they don't come from Congress.  Okay, so what are they?  They are instructions to employees of the Executive Branch from the Chief Executive, their ultimate boss.  They tell those employees in the Department of Justice, the FBI, the Treasury, the State Department, and all the other less-well-known departments and bureaus how they are to operate.

They can't tell you what to do or not do, because then they would have the force of law, and the President can't make law.  Only Congress can make law.  That's what it says in Article 1, Section 1.

The fly in this ointment is that the way employees of the Executive Branch operate on a day-to-day basis often affects citizens who are not themselves employees of the Executive Branch in ways that are indistinguishable from laws that Congress passes.  When the guards at the Capitol are told to "admit no one who is not wearing a mask", the effect is that you must wear a mask in order to get in to see your Congressman — without Congress having acted.  That's why EOs sometimes feel like "the law of the land" even though they're not.

Occasionally, a President will issue an EO that a President clearly has no authority to issue.  This happened when, for instance, President Obama (who was, let us recall, a 'Constitutional scholar') committed us to the Paris Climate Accord.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
      — U.S.Constitution, Article II, Section 2

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
      — U.S.Constitution, Article VI

but the Senate did not concur.  The 'treaty' was never presented to the Senate for their consent.  So, when President Trump issued an EO taking us out of the Paris Climate Accord, he was undoing something his predecessor had no authority to do in the first place.  President Biden just (illegally) put us back in, reversing Trump's (legal) EO.

It will be interesting to see if anyone objects to any of Biden's EOs on the grounds that some of them do attempt to make law without involving Congress.  I'll actually be surprised if that happens.