It’s time to ratchet back the use of executive orders
One of the interesting aspects of the last year has been the increase of the appearance of executive orders in the news. Much of that is because of the COVID-19 virus and the steps taken to control it and limit its damage. However, if you think back before a year ago, the whole issue of the use of executive orders has been simmering for a long time. It should be thoughtfully reconsidered.
Executive orders are tools that have been used for a long time. Essentially, they allow a government to bypass the usual political and legal processes under some kind of extreme circumstances. In some form they exist not only in the United States, but also in other countries. Often they have been used by military coups and authoritarian governments to control entire countries and overturn constitutional provisions. Myanmar is a good, current illustration of exactly that.
Both the state governments and the federal government of the United States have used executive orders almost since the beginning. During the Civil War, President Lincoln suspended habeas corpus under wartime powers — an action that is still debated today. During the First and Second World Wars, Presidents Wilson and Roosevelt also used wartime powers. The rounding up and imprisoning of citizens of Japanese heritage (a politically incorrect word) was an executive Oorder.
Gov. Gavin Newsom has used executive orders extensively under provisions of the California Government Code during COVID-19. Under California Gov Code section 8558 there are two kinds of emergency powers. One is a wartime emergency and the other is for everything else. The list of “other” emergencies is lengthy, including air pollution, drought, pests, plant infestation and cyberterrorism. The governor can also do it for “other conditions,” which is undefined. During such a declared emergency, the governor has the power to suspend enforcement of laws, seize property, and impose requirements on citizens without benefit of the Legislature, among other things. That’s why you are probably the proud owner of a mask as you read this.
Let me quote you a part of his COVID-19 executive order from March 4, 2020:
“Under the provisions of Government
Code section 8571, I find that strict compliance with various statutes, regulations, and certain local ordinances specified or referenced herein would prevent, hinder or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic.” (Emphasis added.)
Note the use of “I find.” Also note the governor suspended “strict compliance with statutes.” Those are the laws passed by the Legislature. What does “strict compliance” mean? It means the law can be violated.
On the federal level, it has become obvious that presidents have incredible power to issue executive orders. When President Bush left office, President Obama quickly rescinded large numbers of his predecessor’s orders and issued his own. That was repeated when President Trump took over. Now, President Biden has already issued over 50 executive orders rescinding what President Trump did and striking off in his own direction.
Is this really how we as a people want our government to operate? Certainly we can understand the possibility that a bad situation can arise and so some limited emergency power might be needed. That’s why the provision for such powers was created in the first place. Now it seems we have opened the door to the kind of abuse that, while starting off small, can expand into the kind of abuse of power in Myanmar.
“Oh, that could never happen in the United States!” Citizens of Japanese heritage might think differently as they have experience the misuse of executive orders firsthand.
How do we fix it? Let’s try laws that require very short time limits on the application of executive orders unless ratified by the legislative branch at the first opportunity. Let’s try removing some unnecessary situations. Is drought or plant infestation such an immediate emergency that it justifies bypassing the Legislature, suspending the enforcement of statutes, and allowing a governor to impose restrictions on citizens’ actions? If so, why have a Legislature at all? If a governor can do that, perhaps we should just concede that “one voter, one vote” has become “One Executive, one Order.”
Here’s my modest proposal — that as citizens we require our state and federal governments to reign in the use of executive orders and shift the balance of power back toward our elected legislative branches.