Guest Commentary / Jan. 21, 2021

Executive Orders: Not the Answer to Everything

What are executive orders, and when is it OK to use them?

By Leo Sopicki

President Joe Biden made a show on his first day in office of sitting at his desk and signing 17 executive orders. I heard one newsperson say that “His advisors told him he probably wouldn’t get all these things through Congress, so he might as well use executive orders.”

What? If that’s the case, then we don’t need Congress at all. No. That’s not how this self-government thing works.

Another press pundit was defending President Biden’s actions by saying that other presidents had signed many more executive orders on their first day. This “your guy signed more than my guy” argument, which was also invoked when Obama took over from Bush, is also irrelevant.

So, what are executive orders, and when is it OK to use them?

Authority

The issue is neither in the use or the number of executive orders but in how they are used.

You will not find the phrase “executive order” in the Constitution. The Constitution does say that the president “shall take Care that the Laws be faithfully executed” (Article 2, Sec. 3).

President George Washington issued the first executive order in 1789, directing department heads to provide reports about their operations. This was internal to the executive branch and thoroughly within his constitutional power.

At the other extreme, in 1942, President Franklin D. Roosevelt issued an executive order stipulating that all Japanese Americans be interned in camps. Was this wrong? Definitely.

Right or Wrong

For the sake of example, let’s say Congress passed a law mandating that a clown college be established in each of the 50 states within two years.

The president could issue an executive order directing that states with the lowest percentage of clown population be given priority in establishing the new colleges. He could determine which states get clown colleges the first year and which the second year.

This would not contradict the law that Congress passed, and the president would be taking care that “the Laws be faithfully executed.”

However, if the president issued an executive order saying that groups of states, for instance New England or the Dakotas, be served by one centrally located clown college, this would be an entirely different situation. This order would contradict what Congress specified in the law.

But, What If…

One might argue that there might be extenuating circumstances. What if there was not enough money allocated by Congress to pay for a clown college in each state? What if there are not enough certified clown instructors to staff 50 schools? Would this executive order be justified then?

No. If the president determines that insufficient funds or other conditions exist preventing establishing a clown college in every state, he would be obligated to return to Congress and ask for additional funding or a change in the law.

Of course, we know Congress would never establish clown colleges. There are more than enough clowns in Congress already.

In summary, executive orders are tools that the president uses to carry out the laws created by Congress, not a tool to create new laws or change laws passed by Congress. As citizens, we must be watchful that the president does not exceed his authority and remember that executive orders may be challenged in the courts.

LTC Leo P. Sopicki, U.S. Army (Ret.) is an Infantry and Psychological Operations veteran. His book, “Speak Truth to Patriots,” is available on Amazon.

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