Making Law Through Executive Orders Is Unconstitutional

Making Law Through Executive Orders Is Unconstitutional
by JBS President John F. McManus

In his 2014 State of the Union Speech, President Barack Obama asserted that he would “take steps without legislation” to accomplish his goals. He had earlier mentioned using his “pen” to force his will on the American people. He referred, of course, to the practice of making law by decree in the form of presidential executive orders.

Obama would hardly be the first to force his will on our nation. George Washington thought he could do so when, in 1793, he proclaimed neutrality in the war between France and England. In doing so, he usurped authority belonging to Congress. Madison and Jefferson vehemently protested because the president’s order bound every American, not just government workers. They knew that it would be proper for a president, acting much the same as a corporation leader would act, to issue an order binding workers under his command. But he could not legally bind the hands of all Americans with an executive order.

When a citizen violated Washington’s neutrality executive order, he was arrested and tried for his action. But a federal court acquitted him on the grounds that a presidential decree aimed at all Americans was an invalid exercise of authority. (Would that we had federal justices who would similarly view presidential wrong-doing!) A chastened Washington then asked Congress to replace his order with its own legislation accomplishing the goal in a constitutional manner, and Congress did as requested. Washington issued no further executive orders aimed at the people.

But many future presidents have employed executive orders – all with no constitutional authority. Franklin Delano Roosevelt issued more than a thousand. Yet, Article I, Section 1, Sentence 1 of the Constitution states that “All legislative power” resides in Congress. Law-making by the Executive Branch violates that very clear mandate.

During the Clinton presidency, aide Paul Begala praised his boss’s reliance on the practice. He actually stated, “Stroke of the pen; law of the land, kinda cool.” But Democrats are not alone in employing this violation of the Constitution. In 1970, President Nixon used his pen to issue an executive order creating the Environmental Protection Agency. Every president during the 20th century engaged in the practice.

It can’t be stated too often that law-making is the sole prerogative of the Legislative Branch. But when that branch allows the executive-order practice to continue, it even escalates. As long as congressional failure to assert its sole authorized power is allowed to continue, executive orders will continue to saddle the American people with rules and regulations that might never have arisen had the Constitution’s very first sentence (after the Preamble) been obeyed.

Next time you meet with your congressman or senator, ask why he or she allows this clear violation of the Constitution.

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