EXECUTIVE ORDERS’ RISE A TROUBLING TREND

What you’re about to read may sound wonky, but it’s essential. A core principle of democracy is having voters choose lawmakers to represent them in deliberative bodies. Issues arise, public debates are held, and city councils, county boards, state legislatures and Congress vote on whether to enact new laws in response. This process is essential to the constitutional principle that there must be checks and balances on individuals’ power. The legislative branch, the executive branch and the judicial branch each play distinct roles — and no one person has inordinate power. As plenty of law and history professors have detailed, the U.S. Constitution amounted to a specific response to — and rebuke of — the unilateral power of kings in England.

But from Presidents George W. Bush, Barack Obama, Donald Trump and now Joe Biden to California Gov. Gavin Newsom to San Diego Mayor Todd Gloria, there is an increasing belief that executive orders that skip the legislative process are the way to get things done. It’s not a healthy trend.

On issues from immigration to health care, U.S. presidents have resorted to executive orders to work around intransigent opposition parties, inviting challenges and leaving large numbers of people uncertain about protections as patients, Deferred Action for Childhood Arrivals recipients and more. In November in California, a judge barred Newsom from doing anything that “amends, alters, or changes” existing laws or makes new laws or policies, saying “many” of Newsom’s orders exceeded his authority. Even Newsom’s righteous move to ban gas cars in 2035 and gas trucks in 2045 in California is best as a binding vote by the state Legislature, not the executive mandate he unveiled in September.

Last week Gloria issued an executive order capping third-party restaurant delivery fees at 18 percent. His is an extraordinary appropriation of power by an elected official, even during a pandemic and even if most everyone agrees local restaurants need protections now to survive. With the exception of the broad stay-at-home order by Kevin Faulconer to close bars and limit restaurant activity in March at the start of the pandemic, Gloria’s aides were unable to provide any precedents of previous similar actions by a San Diego mayor. Gloria acted at the behest of three council members. But why not get two more votes and approve it expeditiously? He also acted after consulting with the City Attorney’s Office. But why open up the city to potential litigation by using an executive order that might be subject to legal challenges? Many of the cities in the United States that have taken such steps did so after getting the go-ahead from city councils. Yes, the council will be asked to ratify Gloria’s executive order, but an ex post facto vote won’t include the debate that would be expected if Gloria had gone through the usual process. Mayoral aides say city and state laws purportedly back the mayor’s assertion that he has the right to issue such an emergency order. That doesn’t make the decision right.

Presidents have had mixed success in federal courts with their executive orders. Bush, Obama and Trump all essentially rewrote federal laws they didn’t like and were not always reversed by judges. And Biden’s recent raft of orders were in large part about reversing Trump’s orders, which should be a president’s prerogative. But Biden’s record number of executive orders is itself a concern. Hypocrisy on this issue is rampant. Republicans who backed Trump’s rewriting of immigration laws blast Biden’s executive orders, and Democrats who complained about Trump’s executive orders were fine with Obama’s overhaul of immigration and health care.

Democracy is messy. Consensus is hard. But executive orders should be that rarest of exceptions.