You can’t legislate by executive order unless you’re a dictator

Just three weeks before the 2020 election, presidential candidate Joe Biden said something very profound — even constitutional. “I have this strange notion, we are a democracy … if you can’t get the votes … you can’t [legislate] by executive order unless you’re a dictator. We’re a democracy. We need consensus.”

Joe Biden “signed more executive actions on day one than Trump, Obama, Bush and Clinton combined” — 17 (Amanda Shendruk, (Quartz, January 20, 2021). By the end of January, just 11 days in office, he had signed “25 executive orders, 10 presidential memos, and four proclamations” — 39 total (Amanda Shendruk, “How Joe Biden’s executive orders compare with those of other presidents,” Quartz, January 31, 2021). Proclamations are mostly ceremonial; and executive orders and memoranda, both legally binding, differ little.

None of these 39 actions went through Congress for the needed consensus Biden spoke of. By his own definition, he has shown himself to be a dictator. He dismissed Congress as America’s only lawmaking body — effectively appointing himself the legislature. He is no longer even attempting to get the legislators’ votes before he decrees. Thus far in this new socialist government, he rules by decree, precisely as does Vladimir Putin (Russia) and Xi Jinping (China), as well as rulers in other socialist countries. He also came to power as they, by censoring opposing information and election fraud witnessed by every American willing to review the data.

There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, another to execute legislated law, and a third to adjudicate possible violations, when contested, of that law — a division of power held “sacred” until the last few decades. The Constitution reads: “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” (Article I, Sec. I).

The executive branch has no authority to make law — any law! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where a statement is needed regarding the implementation of that law by the executive branch. Nor can a president cobble together parts of ancient laws to create new authority never intended by the authors of prior law. Originally, they were but interdepartmental directives and not intended to do anything more. No mention of them exists in the Constitution.

Democrats formerly recognized that executive orders making law weaken the sole power of Congress to make all laws and place us on the road of government by decree or edict of one man. On March 28, 2011, President Barack Obama said, with respect to the idea of nullifying Congress on the deportation issue of illegals in the country, “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed,” but this is one of Biden’s recently signed executive orders.

We must choose the Constitution over political party. How does a president’s defiance of Congress on deportation or climate change, or anything, differ from what a king or dictator does? It doesn’t. The Constitution exists to protect all parties and all citizens from arbitrary and capricious rule.

Some defending a president’s executive order practice of making rules may suggest, naively, that such are not laws and thus okay. The Founders made no distinction between rules and laws. Regulations and laws have in common three things, they impose a restriction, administer a penalty, or prohibit an activity. Congress alone can make them and has no authority to give away its exclusive power to do so, whether called a regulation or a law, nor to allow the executive branch to do it for them. The people have the right to know that every restriction imposed upon their behavior was read and voted on by four elected, thus accountable, persons — their congressman, their two U.S. senators, and their president.

The constitutional response to the theft of Congress’ sole power to legislate should be threefold: 1) renounce any president’s decree(s); and 2) the House should refuse all funding to implement decrees as per Article I, Section 7. If the first two fail to enlist the president’s obedience to the Constitution, Congress must act against him in regard to his oath to “preserve, protect and defend the Constitution of the United States” (Article II, Sec. 1, Clause 8). His failure to honor his oath is “a high crime,” an impeachable offense. This action should receive the support of every member of Congress because they too took an oath to “preserve, protect and defend” the Constitution. Unfortunately, party loyalty for some is greater than constitutional loyalty.

This is especially so when a president initiates an executive order in direct conflict with existing law, as when President Barack Obama on June 16, 2012, failing to get a favorable vote from Congress stopping the deportation of illegals, openly defied Congress, existing law, and his promise not to do so, by ordering it anyway by executive order. Thus the birth of DACA.

Democrats should rein in their president. If they do not, they, in effect, give permission for the next Republican president to defy Congress on something Democrats had previously established as law. He too could nullify that law by executive decree.

Except for the few laws of Congress requiring a statement of implementation by the president, all other types of executive orders are unconstitutional and must stop. If they do not, the inevitable will happen — Congress will nullify itself and dictatorial decrees will be the standard. With 39 executive actions the first 11 days, this appears to have already happened under Joe Biden.

Harold Pease, Ph.D., is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for more than 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org. Opinions expressed are those of the author.